it's not one thing not right yes and that's the error i mean the district court said that i'm going to read and or to mean just and now the district court has a lot of your a lot of discretion in these cases to find facts but one thing the district court does not have discretion to do is to ignore the plain language of the pan specification which says repeatedly that when we say enhanced formulation is in beginning of page four it says based on human data improvements were made to the formulations by incorporating solubility enhancers and or release promoting acceptance parent such formulation are referred to as enhance formulations so the district court did and what supernovas said is they point to other parts of the specification where they say by the invention we claim or we know we're including combinations of release promoters and  in hansing agents as encompassed by the invention well yeah that's the and part of and or so the district court clearly dismissed all of the the stuff the the accused agent is actually well it's the passage we just read and it is the description of the examples on column two at the bottom of the page you can see a line sixteen figure one shows the dissolution profiles of the three examples c r f c r m n c r well i don't think i mean all i can talk about is the evidence in this case your honor the evidence in this case is that there is a passage in the patent that says lol molecular weight versions of this ubility was greater than the minimum is now the district court said wait a minute you know even though she recognized that that was how we got through a claim construction debate earlier in the case she then said well i don't see thing in right she said it's more and i don't find anything in the pen or specification that says it has to be anything just more and while she has a lot of findings your honor this is where we're kind of infected by the old activists case that was that i know  from i mean if it's pretty extreme for you to say we have to send this back to another judge because she can't possibly see through the fact that it's different evidence i mean she said repeatedly that that she knows that her determination has to be based on this record she said it was being based on this record and she made a lot of specific findings only citing to this record so for you to come here and say a lot of this this judge obviously was blinded by the fact that he was in a different case and had similar circumstances i don't think that's a fair characterization of what this judge did we're i mean i can i mean i don't have to all i have to prove is that there was an error in the finding i mean i don't really to prove the motivation i i do believe that if the as th tested and compared some of the some of the testing from their experts and she referenced it so if she was so careful about not thinking about the prior thing then she would have and then secondly we asked her about how the proper way to use the activist but then she well she said well what she described as the appropriate weight does not comport with what this court says is the appropriate way to get to a prior decision in the mendenhall case gillette case which i know judge page fifty seven chevy that she actually considered to mess well two things because the court said specifically that she didn't see anything in the pen that required any any amount of improvement so she's made a direct brief goes into the into is not a matter you have to find tragical significance since this to call significance has nothing to do with whether there's any practical significance of a difference in the indian change is that this disagree with you want that hypothetical would you agree that the discussion here page fifty seven is getting across the idea whether something's de minimus or not significant i don't think so because it doesn't address any good morning and may please the court like to start off by correcting a misstatement counsel repeatedly made the statement that the specification throughout states that the accused agent is not a side ability in hansard it never says that there is only one place in the entire patent that uses the word the word without sight ability  again that site is column three lines fourteen to nineteen that is the only statement in this specification of any of the asserted patent that uses the words without psi ability in hansard it's describing figure five it's describing formulations that do not include the accused agent just to clarify this concept with table three in the end or argument i would direct the court's attention to column three of the eight nine eight patent again where we're staying with eighty x one fifty five this is a column three lines fifty four to sixty one and i really do think it's worth reading quote it is the formulation suitable for once a day administration stopping their we're dealing with ox heart about subpoena very difficult to dissolve difficult to formulate drug the inventors of the patents in suit were able to create a once a day formulation that is the centerpiece of this invention the paragraph continues quote it is an additional object of the invention to incorporate a combination of psi ability  agents into the formulations and this is important to enhance the bioavailability of oxcart as a team and its derivatives such compositions are referred to as enhanced formulation and enhanced formulation in the context bioavailability is enhanced such that you can achieve once a day administration if you have a non enhanced formulation which is table one which was the focus of appellants argument not enhanced in table one means you do not have sufficient enhancement of bioavailability to achieve once a day administration with the evidence of that direct cites figures one two and three and what what's your response  solubility enhancing extent and release some of the can be can be one or the other and terms of accomplishing enhancement so if you look at the description of the non  to a legal style manual the forward slash is described as a grammatical abomination that can mean and or or and or that's in the that's in the reference the here the district court found as a matter of fact entitled the deference based on the luminous documentary and expert and inventor testimony that what was meant in the description of the not enhanced formulations was that it did not contain that critical synergistic combination of release promoters and enhancers ok and i think it's i think it's important also for me to correct a potential in this case completely contradicts that assertion number one there is testing conducted by both parties experts dr schild and dr burke with t w eyes on expert dr burkley and tested he ran the industry standard test described an example three people three he ran that test almost three thousand times every single time but what's your response to your friend on the other side and said that really puts he didn't use these words but i think  saying there's a difference between qualitative and quantitative impact in other words yes because it's statistically significant didn't mean it actually produced a practical result that's a very good point your honor the district court found that the sigh ability testing in this case demonstrated a twenty six to one hundred and ninety five percent increase that is a finding of fact most importantly to this concept of the minimum is what you may recall from the opinion mr chen's formulation documents mr chen's formulation document is a document from a t w i formulate or created palin's formulator created before this litigation well before it began this formulator took the accused agent ok he made a whole bunch of tablets he put increasing amounts of the accused agents into his tablet when he does that he found a quote higher accused agent equals faster hydration if you look to table one claim one h promotion is the is the benchmark for psi ability enhancement but you don't have to rely on claim one there is ample expert testimony that was credited by the district court to support it so she w i formulator as more of the accused agents sees increased hydration increased by ability more importantly that same formulator takes the accused agent out of the test samples and in his own words the result is a dead end that is real world practical ramifications of having differing amounts of the accused agents and taking the accused agent out for keeping it in real world test this is a rare piece of evidence in the past waxman cases that is also important here i think we have to take a step back and realize that what we're dressing on appeal today is not a claim construction issue  specification specification disclaimer or a negative limitation you know a one c means an agent that increases site ability but is not the accuse they did this was never rates during markman proceedings so what we're dealing with now is an application of a claim construction awaiting of the evidence here so this is a clear error standard and i don't want to get lost because what we're hearing essentially is a disclaimer argument but it's  being repackaged as as a an application of the claim constructions of the facts in this case you're going to hear in response to mr xerxes argument that that and i gave him a hard time about this but the reality is district judges are human beings and you know the district judge walks into this and she said when i try to focus on this not that long ago i get this science i mean what is your response to the fact that case yes the critical question was already asked of opponents counsel point me to a section in the trial opinion where a substantive ruling was based on evidence from the activists case it does not exist in the district court and it's the briefing on this i hope has been clarified by us filling out the quotations because there are truncated quotations that when i read it in it in full and we did that we tried to correct the record in that regard maybe half a dozen times she reiterated the fact that she was relying soley on evidence in this case now the  he used the same protocol and that was fine there was no dispute that that was proper at the end of the day that was an introduction to an expert and what he did in this case followed by paragraph after paragraph of the results of his chemical images unless there are other questions thank you for your time just respond to a few of the points at the beginning of supers as argument here they say they tried to argue that they went back to the end or issue and try to argue that the combination is what they tried to explain again that somehow a combination is what was meant by enhanced and what they they say they cited too as is the section of the beginning of column three and the and they said that because there were certain examples that were referenced was saying goes to specifically  not just have a so you believe the answer and then that that somehow negated those statements in the regarding it to the examples that didn't have the accused agents the accused agent and those examples where without a  were entitled to rely on that  testified what it meant the inventor testified what he meant by that nevertheless well that's that's completely inappropriate and it's completely inappropriate for the district court to rely on inventor testimony about what he meant people the public looking at the specifications would have the benefit of was a disclaimer argument or whatever at any point time it's not as if it's if they make a factual statement that the petit makes a factual statement in the hand then we should they should be bound by that fact at some later at some later time if they can't go ahead and say of evidence and done a discussion in the record about what the specification meant which the district court just kind of dismissed because she says i took care of this in the activist case and i'm not going to consider it again so that was inappropriate and you're