that i think particularly it was the theory adopted by music of disavowal saying that the why there was that disavows because the precincts in the claim of the parent are the same as the preamble in the playing of the of the child case and so you have a situation where the court supect did not focus on the limitations the different substantive limitations between planes in the different arguments preponderance ingredient of composition all right so says that argument was made as to those claims that was carried for forward into the child case secondly in an introductory statement paragraph if you will  she the the queen's have been amended by the court below to say a specific reach of at least five percent makes about five percent there's nothing like that in the arguments made in support of of claim forty seven or sixty two is simply not because this is not a situation where you have a slight shading a word or something and this is a wholesale importation into the claims of limitations that were simply not there but i think the the cour interpret clean to exclude about it's our table want to broaden preferred ranges and they're all well below five percent the ones on those rooms so therefore the huge swath of the actual somebody must be guilty if that means it's awfully suspicious that these left off i mean so suspicious in light of the articles that were included that i mean isn't that from a pleadings standard  and then as to this business of the misrepresentations this is their their oath it is that there were misrepresentations about the the very prior art cited by the examiner and considered by the and we think it that is a or dredge up something that enthused litigation inspired opinion is at odds with what was argued say that that was an error or a intentional misrepresentation then you say well you know about the me please the court counsel i'd like to start with judge moore's first question was directed our attention to the five percent limitation and i want to start there and if it were up to me i would end there because the court need not reach any of the other issues in this appeal but the most straightforward route to affirm its is the five percent limitation on the micronutrients and if the court firms on that basis as it should it need not reach the whole issue it need not receive an equitable contest and with respect to the five percent issue i hope to make two points in this oral argument the first one is there was not just a technical waiver of the argument that now makes with respect to the five percent there was a complete change of direction as to what the claimed construction was and that's a very significant thing because what happened below was that both sides not just mosaic both sides agreed that there had to be a floor to the micronutrient level both sides agreed that it was not plausible to read these claims as a be read so that one thousandth of one percent of a micronutrient would infringe this claim so the room that we took obviously was the five percent level which i'll return to in a moment but the took was the past be useful level of micronutrient now we talk in our brief about how that standard doesn't make any sense it's a subjective standard it's unworkable standard now the in an effort to save the argument and advance this new argument the plaintiffs argues well in our last moments before the district court we changed our construction so they submitted an expert affidavit they submitted to briefs they submitted a principal oral argument and then they made this point and exactly how they phrased it is important they said i'm reading from a succeeding that were oral argument well we were not attached to useful that part's not equal this part is it's just got to be enough so it does some good for the plant it's still a floor still not one thousandth of one percent got to be enough so it does some good for the plants not let's take that seriously as claimed construction for just a moment obviously an unworkable standard obviously another subjective standard it doesn't make any sense it is natural for the district court to have made a decision i'm not going to go with useful i'm not going to go with some good for the plants but i accept both parties argument  it is not plausible that one thousandth of one percent infringes let me mention while i'm discussing waiver one other issue that's a brand new one this one was  to the contrary to the district court but argued orally to the contrary to the district court argued in the principal brief to this quirk to the contrary or in that reply prick and now in oral argument appellant say this language we're focused on is preamble wing which better never came up before the parties and their experts submitted to the district court this language because we think it needs construction and the reply brief level it's become preamble wings and when you look at the plain language soil nutrient composition blah blah blah and then later in the text of the claims a reference to said composition then it's a preamble that can be ignored or doesn't make sense but what we're talking about is a composition with the minimum level of micronutrients now let me turn if i could to the choice that district court did make  percent as judge moore has are you deserve the starting point for that is although there's the same language in the parent this court doesn't have to deal with what happened in the parent application because as judge moore was pointing out except that but you go through and you read the entire rest of this remark section i mean that's a very introductory sentence and the rest of it is about taking groups of planes and distinguishing them on different bases from  define an entire invention if it does relate to the entire bench and because at three subsequent points in that paragraph there is description no in one aspect invention if we know there are aspect of the invention section think you mean when you go through the entire rest of this is quite clearly lays out the different things the different ways in which they are limited in different planes like the fact that it set out to alternative ways that they could micronutrient level some not as a court observer bestand is distinct and that is a continuation of exactly what happened in the parent where what was distinguished was best in because as observed in the would go back to the language in both the parent and the child that is the same the claim language that we're talking about the interest in terms of the introduction is the same i grant of course that in the parent the claims were amended ed higher levels of micronutrients but how the patentee described that amendment is important here because in the parent file be bad the state sets out i'm looking at eight to sixty four of the file history for the parent the examiner brought to attention the bechstein that i'm what i'm looking at the first full paragraph bechstein makes clear that he refers only to a minor amount of trace elements less than five percent by weight however bechstein is no way suggests a high concentration product is presently claimed and then here's the point that i want to emphasize during the interview and to further respected and then he goes on to talk about adding the additional micronutrient levels so he doesn't say you don't have to pay attention to what we were arguing about the initial claims which didn't have any explicit micronutrient f in any way and what he does in that child that occasion was take the same point and spit it out in various different ways now one of the things that's telling in the title is t in the arguments to the examiner the patentee worked very hard to show our support for that low range for point six to no argument for any range below that was supported by the specification patentee says support for these ranges can be found in the specification i'm reading from a one fifty and then what he does is going to want to contradict the argument here today that because there are individual micronutrient percentages that fall below five percent therefore that somehow inconsistent with the claim construction what the patent he was working very hard to tell the patent obvious and to persuade the patent office of is level and that's part of why it's appropriate for this court to rewire when it's conducting its claim construction in the different sets of claims in which extant is distinguished there are a number of points granted your honor with respect to slightly different language where the patentee again emphasizes how distinct bechstein is with its five percent micronutrient level and the micro nutrient count he says for instance best and again granted your honor these are different sets of cla has to be contrast with the present claims where the minimum amount of money micronutrient as an elemental mental micronutrient is four point six two percent another set of claims bechstein is concerned with an entirely levels of migrant nutrients and so are you ron or is that that introductory paragraph is confirmed not contradicted by the remarks that follow