thank you your honor and may please the court this court has repeatedly held that where generics abbreviated new drug application directly addresses the question of infringement but that document controls the infringement inquiry for purposes of section two seventy two of the patent act and in two cases decided well before tyco brought the suit this court held that a generic is entitle to summary judgment of non infringement where it's and the quote requires the proposed drug to have a specific range the surface area of your composition is in it's about the testing protocol not the manufacturing and not the actual composition itself what testing protocol you would use to ascertain what the range is the only the even speak to the issue of outgassing and a line spoke specifically to the question of testing protocols let me compare for you the argument made in a lot with the argument made here this is the quote from page twelve forty eight of a on brief in this case on page forty six mutuals anda did not specify what testing protocol and methodology actually used page forty eight mutual has not specified quote appropriate test call parameters for measuring s s a there's never been any dispute that if mutual produced a drug that complied with the s s a stated in the enda that there would be infringement it was all about how do you determine whether they're doing that and that's the testing dispute and that's the very same issue th has an objective meaning and it was interpreted two years later in abbott versus tor farm case to say specifically that if the surface area claimed or stated in the end is outside the claimed green judge we read degrees mutuals surface area as i say would it be and within the infringing rest correct correct correct so the whole question everything turns on whether the it seems to me that what we have said is that where the end up doesn't make does it say to not to make it clear that the product that was produced pursuant to the end up would fall suit didn't have an objective basis look at what the court said it's that it says this the general rule it says if you've got an accomplice it's not well defined then you look at other evidence concerning infringement but if the compounds well defined then then you look at the anda in the court distinguish glaxo and said that was the case where the patent claimed one form of a compound and the end of said well our drug has ninety percent of this other form of the com but it didn't affirmatively state that the other ten percent wouldn't contain the patented forms here you've got a situation involving specific surface area square meters divided by grams it's a standard objective measure i'm having a hard time seeing why that doesn't bring this case outside of the wheel on i guess obviously the hatch waxman act creates a particular structure for dealing with these kinds of disputes and for nearly the brand it's something that it doesn't get any other kind of case it doesn't in other cases you don't get an automatic stay of generic of the generic marketing whew you do the trade off is that and the controls that need to infringe the generic says we're going to go ahead and sell a drug and we're going to take our chances they get f d a approval and they take they sell a drug and it turns out that that infringes they've got to sledge hammers coming down on them one is a section two seventy one a damages and the other is the possibility of never selling a drug again in the united states in criminal sanctions so that's the trade off look and you so i i you don't we have so little time and i'm just going it you're not going to s help but i am i'm not with you at all on your one argument however i think you might have an argument in another place and so i really want you to go there because it's far as i'm concerned you're kind of spinning your wheels with me on this and i mean if other p not speak to outgassing temperatures full stop so how is the patent definite it says i mean i know that that's not really exact issue telling you you have to have an s s a within this range and it doesn't tell you what temperature and temperature absolutely dictate the s s a i don't understand why i think they've got a problem either way even if it's so if stating the s s a range in the past and without you know without and claiming the specific temperatures in the claims and they're not even in the example of the specification makes it indefinite then they've got that problem but but they've got another problem at the other end and that seems to be a problem so of it one bill in the other end we're looking like we're trying to so we're trying to figure out what tyco knew and whether it was subjectively baseless not only at the time they filed but throughout at least the duration of the thirty month stay because if any point in time if they knew is objectively baseless they had an obligation under p r in the poll after night your honor yes so here's the question why wouldn't it have been objective of two point two or higher wouldn't anyone it's killing me or think if you go higher than forty degrees all the way up to one of five surface area is actually going to go higher not lower because surface area right and you're talking about the outgassing the removing of the molecules so that the gas can then coat so it seems to me if you raise temperature s s a automatically goes up as a matter of technological fact immutable principle of that you melt it down you change the chemical composition of that so the thing is the question for me is that what point should tyco have realized that that would be the state of the world and because your expert of course report came chief lawyer at tyco and it said how you work around this patent it said in essence i won't quote it because it's confidential dr you make the particles smaller to make them smaller that's how you avoid infringement that is temperatures since it references in the specification example a particular protocol but it doesn't have an explicit reference to one of five even though that apparently was the  ideas this court's precedents have been clear in their collected in our brief including on bond decisions like the phillips decision that you don't incorporate those things into the coin that it's a nonstarter so well but you don't have a great year into the claim what that's doing is telling you it seems to me that when you put forty degrees in your and that you are not really being responsive to the range that was  have used one l five is it since one of five not in the patent and you don't have a way of knowing one hundred five degrees is the range that dictates the s s a range in the patent one of five because the temperature dictates the range so would one of skill in the art at the time cycle file this has thought one hundred five is the temperature at which these things ought to be tested tested to determine what the rings are absolutely not in fact what they mean this this is something that the district look hundred c and that this was the standard temperature this is what this test see agency had been doing all along come back to this should have the question is whether it was shipping litigation and we don't dispute your honor that there was a valid fee about those issues for spurs of the two section one but a long use of the phrase not material to describe disputes over testing protocols and testing equipment thank you judge and may please the court the district court's final judgment dismissing mutuals and i trust claims against tyco should be a first we focused on the entire sham litigation question on the bear versus the way a you all have figured out the realized that the appellant places on the beverages elan is simply this is simply misplaced there are numerous they seize upon which that case can be distinguished it is not matter of law determination in this case let's review what i would really rather you focus on if you don't mind i mean if my colleagues have other questions i'm sure they'll bring out into the line but i want you to focus on whether or not it was reasonable for tycho to think that the mutual product ought to be tested at a hundred and five degrees and the measure and then the s s a measured at that temperature at the time of yes it was reasonably your honor here's why going back to before two thousand and one sandoz had measured the product at one hundred five degree outgassing temperature that temperature had been used by p p l article testing laboratories and had been than one hundred five degrees centigrade so there was no reason to believe that there is a conundrum on the record in this case that no one has yet answered that the the product developed by mutual seems to respond differently in the testing protocol than a product developed by sandoz and psycho no one has ever explained that it is an anomaly and i'm not a chemist either i won't attempt to explain it but the simple situation is this at the end of the day looking specification and the mutual product test of the one hundred five shows one point one infringing which is exactly the reason that this case shouldn't be controlled by their versus the way so that about what i said before which i understand is a matter of chemical fact which is if you test at forty degrees for two hours and you get an s s a of over two point two no reasonable person would have thought testing at a higher temperature would have resulted in a lower s s a that automatically as a matter of chemical fact if you're going to increase a temperature and keep all the other parameters of the testing identical it only expert i am not sure i agree with you on the matter of absolute chemical fact that our experts said no it doesn't necessarily wasn't true but more importantly going back to the time before the filing of the lawsuit honor a test done by p t o the same lab for mutual i'm mutuals product in december of two thousand and eight at one hundred five degree centigrade that show at one point one result thus i think  at twenty four sixty two and twenty four sixty four showing both the tendency over increases in the outgassing temperature and even more dramatically the increase size of the particles at one hundred five as compared to forty certainly suggests that's what's going on it may suggest that your honor but that wasn't unequivocal be proven true at the time tyco filed the lawsuit after receiving the paragraph for the letter was some point in the course of the proceedings tyco had this evidence before it had the evidence before but it also had the test result that mutual had done in december of two thousand and eight showing it infringing result one hundred five degrees outside but that infringing result the question is what caused that infringing result and this evidence seems to suggest that the size of the particles increased at one hundred five  and therefore the surface of the s s a because that's fine your honor but let's get back to the point that's before us the sham with the geisha if you get the result of one hundred five of one point one and it's forty you get two point two then the question is this what's what happened ultimately under the klein construction the corps comes forward with a claim construction it does not reject one hundred five as a test it rejects it as the sole test you can do a test at forty degrees centigrade and find the test not within the scope of the the the panamint way to do it are you claiming that under the claim you get any molecule that falls within your s s a range tested at any temperature so are you claiming to me than maybe there's some other molecule out there not mutual which tested at one  upon the court's construction that was done in january of two thousand and nine we have it completely appropriate at least under that clain construction tab one hundred five degrees centigrade temperature and a forty degree centigrade temperature for outgassing neither one is limited nor excluded which is the reason i get back to our test was it was a reasonable it again faced with what tyco knew at the time it filed lawsuit i think it might have a possibility it might have a chance of succeeding an education the americans were not here arguing about chemical technical points it's what did they know they knew that they had six or seven years of results at one hundred five degree centigrade they knew that mutual had come in and that they had gotten inconsistent results using p p a variation they knew that mutual had come in using the same testing laboratory with a different number test with a much lower outgassing temperature and had declared to point to specific surface area and yet had claimed by will quote once something wasn't adding up so could a reasonable pattern or could a reasonable pattern be under the circumstances believed that it might have a possibility of succeeding on the merits and that's why they filed the lawsuit gotta go back and ask the question again because i'm just sitting here absolutely delirious with your answer i mean i didn't i don't mean to make you do literature honorable i just can't fathom i guess i always assumed obviously wrongly that your view was that the range in the s s a is only to be measured at the temperature of oil five and that was affectively a limitation of the claim by virtue of that being the range which by the way you never point out the microbes just found the u s p s and discovered that actually want to live is the ra p s so i just always assumed that you were always believing in accepting as given that the range has to be definite you can't just have an indefinite range and that you were always accepting and arguing very reasonably that it was a particular temperature that had to be used by everybody to determine the range is it really true that you're arguing that any temperature can be used and then if the molecule imprecise there are different time frames here your honor when the court sits down to claim construction of what i was telling you about was what the courts claim construction means that was never tested below prior to the court claim construction absolutely tycho was arguing that there was a specific in the specifications there was a specific test to be e g test that was outlined the u s p set forth one hundred five degree temperature and tycho was  that hundred five degree temperature was the right temperature to use that a person of ordinary skill of the art which are that temperature and in fact mutual zone expert later on having used that hundred five degree temperature it would appear to be reasonable to continue to use th claim that one hundred five is affectively a clean limitation well and i don't we yes or no from you because otherwise depends on what it depends on when you're on it we believe that up to what we believe that up so we got the claim construction but the court told us that week was incorrect so now i have to deal with the claim construction going forward that's the law of the chase i can't i may disagree with the court's claim construction but that's the law of the case so what we now have under that claim construction the phrase surface area is not limited to the measurement method stated an example one that's out of the court's claim construction ruling i now have a situation that i describe you the cause of your disillusionment with my position until the courts claim construction our position was that a person of ordinary skill in the art reading  reading the patent specification knowing what was going on we tested one hundred five degree outgassing temperature the hundred five degree outgassing temperature was not in the patent but that's what we argued we lost on the but again what if i haven't looked but if i do go back and look which i will at all of the briefing your i'm going to find you as having argued or your client's having argued to the district court this claim is definite and one hundred five is the temperature that determines the s s a range and whether or not it helps in the right that's i'm going to find because otherwise you're asserting an indefinite claim and that is objectively baseless and probably well so i want to make sure that you're being consistent now with what you argue your honor it's not an indefinite claim that was never raised below and it's not before the court at this point in time clearly tyco did not believe it was an indefinite claim at the time it filed suit it believed it was a definite claim it had used one hundred five degree outgassing temperature for seven six seven eight years over two companies mutuals own experts said it was reasonable to use that temperature they filed lawsuit the lawsuit on the basis they thought that was the reasonable temperature use they were disabused of that notion by the courts claim said well no i'm just trying to figure out whether or not it was reasonable at the time the suit was filed for you to believe that one hundred five degrees was right temperature in which to determine the level of the measurement of the s s a and that's what i'm trying to figure out and if your argument was it doesn't matter precisely what temperature all that matters regardless of what temperature you use is that it falls within this range and you see you've created a sliding scale in your point your honor and i apologize now i understand where i where i'm led you astray and i did not mean to do that type of position has been consistently the one hundred five degrees number period throughout we still believe that's correct but given the claim construction that went away but no we did not believe there was a sliding scale that anything anything that led to one point one or below the range one point one or below would be inference and art you say reading the patent would conclude that one hundred five was the right temperature if they wanted to replicate the protocol the testing protocol because of the u s p is that they stick because of the us a we had expert testimony an expert report after the lawsuit was filed where he came forward an arg argued opined that that a person of ordinary skill the art with know to use that temperature that the forty degrees was too low because you didn't you conclude that this whole dispute is about how you measure s s a a month says it's not material now on the issue of the hundred five degree