implications beyond this case is the infringement as a matter of law the snow v unrolling that the district court made and we submit that it was erroneous to where it is in but the bottom line is in where it's never been before and where this court in fairing declined to take it and that is when the end of silent about the claim and there's not a match you go on and i think the judge as you know took two steps to get where you ended up first he said i'm going to take this spec that says ninety to one hundred ten percent of label strength and i'm going to interpret that to mean you know more than ninety percent and i know more than ten percent decrease in potency at two years as measured by long term stability testing conditions and then having done that transformation which we say was clear error you look at the text ninety to one ten is not ninety to one hundred if the if the spec had been one to one hundred maybe it made sense but the spec was going for something very different and when you look at the fight the specs he cited thirty excuse me none of them actually saying that they have their expert reciting ninety to one ten they have their inventor saying when they were trying to come up with their product they were shooting for no more than ten percent but no one actually connects how you get from a ninety to one ten of label strength even over shelf life from that to no more than ten percent decrease as measured by one of two industry standard tests but once again i think what the judge i mean this is the this is my point about i asked him if this wasn't distinguish said and the court did a careful analysis of what the there was pointing to so i guess i'm trying to understand how you think this is so squarely with ensign opium or some so i'm sorry so squarely within fairing what i just don't see the comparison between ok massa justice thank once the court interpreted ninety to one ten to mean no more than ten percent and after two years which we  and the the part of the district court analysis once he did that and this is a quote from a fifty two he says look it becomes clear that a decrease of not more than ten percent over twenty four months imposes a limitation not just for twenty four months but for all time points less than twenty four months as well that's how he reasoned and they said well since you got that this means you would include two percent at five if you're ten percent at twenty four months this obviously includes two percent by now if you recall from fair and the limitation and the spec they were dealing with their limitation was  hundred percent dissolution at one hundred twenty minutes that was the claim and the spec and fairing was at least eighty percent dissolution at sixty minutes and so you could apply the use with respect to the stability of the formulation why wasn't it fair for the court to say assuming we're using the same measurements that were used in connection with the nd partners i mean that what the court said is i'm i'm only doing exactly what and did in terms of figuring out how to measure stability and if i'm using the same measurements that they're using and this is where i come out why isn't that inference a fair well two things one it's not the same to use an end of the end to use but in the stability section that's and and throughout the case it's been undisputed you need to use both the f d a requires you to use both and everyone uses both but moving on to where is the fairing problem once he's done that it's here because in fairy minutes as well if you have a spec that says you've got to have at least eighty percent dissolution at sixty you're going to overlap with one hundred percent dissolution of a hundred twenty but the solution doesn't go down he did an inference that this court with respect time point at this court didn't do and said look time points are silent you've got to be treated like any other patente that's where we see the deviation from fair the same is my understanding of fairing was there was a question mark in in that product as to what the dissolution rate actually would be over sixty minutes even if you and a product would meet the third recited just illusion right for sixty minutes was unclear whether that and a product was going to have the same dissolution at up that the other marker points here this and that product  certainly encompasses a product in which there is no more than two percent concentration loss at twenty four months and so that would necessarily mean it also would be no more than a two percent concentration loss at five knots and if that's true then this and description encompasses the claimed invention no more than two percent of the concentration at twenty four months it's a different measure it's what you have at the end of twenty four months of shelf life not of chesty not of stability chesty that's term testing condition results that's different than where we are in two years and especially we'd like to see long term testing results at five months i guess what i'm trying to understand why is it unreasonable to read your description of ninety to one tad at twenty four months as encompassing a product that doesn't lose more than two percent concentration after twenty four months and i'm suggesting it's the same whether it's stability specs are in the stability testing and the stability data which they couldn't prove infringement on in the end this is a different animal but even if you still lost because it's been under your position your position is well you can't lose more than twenty after two years but to me that covers attempt lose more than two after two years you can't use more than twenty percent right in this claim that claim is you can't lose more than two percent  five if we were talking about the same testing it would becomes but the claim is talking about a particular test regime that used not to two years used at five months ok can can we go back to my question  there and this court didn't take it because this court wanted to stay on silence work you need actual direct about otherwise it can be slippery slope and a whole third  was straightforward and non controversial and let me tell you why and i want to sort of change the jargon that we've been using but i think it's helpful to think of the claim limitation  manufacture a generic version of the drug but the concentration of the impurity in the endo was to be point six percent so it's was a ceiling you could not exceed two percent in the case of the claimed six percent in the case of the higher ceiling the sanofi in court found that the endo sought approval all for a drug that would infringe under two point five percent in a drug that would not infringe above two point five percent but that was enough to entitle a patentee to a judgment of infringement as a matter of law in our case is the same claim social the one of six patents about stability it and when judge andrews rationalized the baseline and judged and you were asking about this rationalize the baseline to fix it so he could talk about one hundred percent as opposed to ninety to one hundred ten percent it doesn't make any difference because if you hadn't done that the the ask in the end if you will the ask for approval would have made the concentration was even higher so it was it would always have encompassed the not more than two percent but he  rationalize the baseline it makes it easier to talk about but it doesn't change the result plus the sort of human about rationalising the baseline being here i don't think that argument was ever made i think it was waived but it is a see it doesn't matter if it was waiver or not the outcome is the clearly encompasses the facts in our case but i think it's narrow enough that it avoids the problem in fearing or airing at least in the system which was presenting a different problem the case there involve the modified release of life that i think that's how it's unclear so that was a challenge when it came to trying to figure out whether it was we meet ceiling in a floor at the same time in the same pattern and it turned out that the combination of floors and ceilings in the claims were compared to the single floor that was requested in the end all the end it requested was i think for eighty percent dissolution in a point in time it turns out that given the combination of ceiling and floors in the uncertainty about the dissolution rate that just wasn't possible in any one of the three perhaps the determine whether whether the approval that was being sought would result in a drug being manufactured that would infringe any of those what what did you know being mean when it said and there has to resolve the question of infringement in the first instance so i think it means for a strong state it's a strong statement but i think that he was able to make those make that finding very straightforwardly because you know what shelf life means and he knows that when you promise a shelf life or you're seeking approval for a shelf life of twenty four months that never  usually sees that was being sought his approval to manufacture a generic version that will not exceed ten percent at five months in the falls right in the sanofi and that's exactly what with the case was in you can study i think i have and do it but i believe from the opinion it's clear that you can study the end you know until the cows come home proverbially and you'll never be able to figure it out i don't think georgiana's had to do a very searching review of the n t here it's very straightforward if you're if you're asking for approval to manufacture a drug that will not the more the concentration will not exceed ten percent or the shelf life of the drug you're asking for ten percent for every point time point along that twenty four month period and that would include at the five month period and then that's not a difficult things figure out plus was no shelf life means testing in a long term conditions i know something was said about the testing conditions was no dispute about dr yama in their expert conceded that everyone in the industry would understand that when you're talking about shelf life of a drug that will be administered to a patient you're talking about testing the one from the ships because that's how it's that's what it means in this field of art so so the fact that judge andrews had to have had to have to read and think  of infringement as a matter of fact i just would have had to have a lot more samples right well the problem was we would have had to have a lot more samples of the allegedly infringing drug we only had a very small sample set because if he requires only very small samples a routine for infringement not to be challenged because you're copying a drug and having the label of the drug you know and it would make sense that it would make sense that it ought to be possible to determine if there's infringement on the face of the end inventor's actually event here what's their effective contribution well so what did they give to the world here so they figured out a way to to make it stable the the the the problem they didn't invent containers that can prevent more than two percent loss of concentration after five months so i don't think that's right i think i think the combination and it wasn't any particular element because as you pointed out t glass in the stopper were in the prior art what wasn't in the prior art and this goes to the inherently question really what wasn't in the prior art wasn't shown to be in the prior art was argued to be the prior art are all of the things that were controlled for example five and what i'm talking about this is the samples that were presented to the court to the district court as evidence of inherent were samples that were made in a particular way and the way in which they were made included lot of the same as saying that they've figured out a way to make it stable or do you just figure out that it could be stable if properly stored i guess it would be the latter they found a way to inventors accomplished was they they found a way where they could reliably do that in they thought other people how to do within their pet that was that's an invention under our law and in particularly where those not even to dispute about this this question the two percent limitation being somewhere in the prior it's not there it's not in the private there's only one route to go in the route was inherent say in the evidence that they put in to support their argument here and  just hypothetically speaking in a firm and here wouldn't impact in any way at this court's review of that appeal and affirms here would not impact the review of that other case that's correct because it's a different record it's a different record but different party it's a different party and i think we need to resolve that point it's not a simple one i agree with that it's not a simple one i think that your honor i do have some thoughts about it but i'll leave it at that and i have a few seconds left i feel like i'm done unless you have more questions here and she is really the problem as through and and your position is comfortable saying that that's that is our position they were able to do something that was unexpected they didn't they they thought they were they thought to be a tremendous challenge going from a high concentration down to this four microgram concentration which is which is in this area of pharmaceuticals is a very very very low and i think everyone expected that it would not be stable if their concentration and they were you know and they were able to solve the problem in come up with a drug that could be sold that you know as a with a twenty four month shelf life which was an accomplishment that that deserves a patent in our view and we would ask the court affirmed judge andrews science and what this technical thing means and how that converts to what test protocol and so forth those inferences should be based on actual expert evidence or data not to turn your arguments second so what you're saying is they should have just gotten a lot more but the court has been holding back to no end and i would suggest for good reason leslie inferring you're holding there or at least what you wrote you said here however the end it does not that's my problem or these are just logical inferences so you just want them to put an expert on to say this is a logical inference well i'd like to be able have an expert to explain why it's not and and if we're going to make there are many logical differences  all of us can make about science and be wrong and so if if there's going to be inferences and if it's not going to be a question by its face and if it's not going to be a bright line rule percent of it which has its own benefits and remember here we're not talking about the difference between winning and losing a case we're talking about whether the end of patente gets treated like all other panties and has to focus on the product that will or likely will be come prove your case like anyone else now there are some representations made about their proof a trial it's in the record but the judge simply did not credit their expert and they don't challenge that was for them to come up with an expert that they would credit and if they wanted to they could have had the expert address the specification give his opinion as to how it would relate to testing under a specific protocol at five months and so forth and so on and those would have been an expert reports and i could have my experts talk about this and show you frankly why it's not true but to leave it to whatever seems like a logical inference to a non expert seems to