clean say well the the term portion in the ordinary sense of the word in its ordinary customary meeting is a part of the whole whether it's integrated in it or separated from it there is no distinction this required in the plan it defines those portions by what it what they do the first portion is an immediate release form not formulation and the second portion is a sustained released form not differing greediness and in doing so departed from the ordinary meaning of the word form which doesn't suggest any particular ingredient list in a particular process and the district court did disavows exacting standard under which you must be established the patently demonstrated an intent to deviate from the ordinary in a customer meeting of claims and the court wants to see expressions of manifest exclusion o asking us not to carry it through but there's already been a scholar that was felt so how do you how can you demonstrate to me that the prosecution history of the child obviated the prior disclaimer yes thank you very much more for one thing the child was a continuation in part it was not a straight continuation new matter was that one of the things that the wa decision relied on was a section in the parent patent that talked about the portions being discreet that section does not appear anywhere in the zero three two patent more importantly eighteen so they're in a section of the specification that did not exist in the parent the patent he is making it clear that the portions do not have to be  they can be mixed within the same matrix so that's the opposite of a manifest expression of of restriction and that's that's the hand he's put in the world on notice that we're going for something different and broader here we're going for the ordinary meaning of the term portion what section of the earth is a stick or three to what what is the ball in paragraph of  and that's one thing that the patent did it meant to answer the question you asked your honor about how is this different we should also look at what they did during prosecution and during prosecution what no time unlike what happened during the prosecution of the parrot did not distinguish the prior art or the invention from the part based on the portions but instead just changed based on these new claim limitations that added on the  kinetics factors and then at the same time they did that your honor they added a dependent claim which said this is dependent claim three which s the the drug product of claim one where in the portions the first and second portion are discrete that's a clear statement both are in prosecution and they intended the plate in order a meeting which is it doesn't have to be discrete or distinct consistent with what was in the specification calling for it could be mixed together limited to either a capsule were violated tablet those are embody events that would have discrete portions and there are explicitly telling the examiner that the invention is not limited to that again that's the opposite of of an exacting manifest exclusion of or restriction that's the patentee saying we're intending something different here than what was intended in broader a broader section of the invention that was disclosed in the specification and in doing so they made clear to explain in the specification of the zero three two patent as a continuation  part that the two portions could be mixed together in other words not be discrete not be distinct and so what the district court did was to set up a claim construction construct where set us up with where they set up a claim structure that so significantly departs from the ordinary meaning of the term either here or even though had to point to somewhere where there was a disavowal of the ordinary scope no one did it no one's pointing to a clear expressed disavowal of the ordinary meaning of the term portion and so court below me trying to pull the wool over my eyes in a really complicated case that's not around or i'm sitting here feeling like i must be an idiot how did i miss that argument since you're leading your oral argument with it then i missed it because it's not your break out that you're  specifics we can talk about including what i think of the argument with respect to form i'm happy to address that as well this is a classic summary judgment case this is why summary judgment exists in the federal system there is no chance th case was ever going to be determined that there was going to be infringement and they knew it from the beginning this has been a long living target but the summary judgment was finally granted in this case so they know it  have two portions there the ingredient list was in there they had all the information they know to absolutely understand the conclusion the judge stark ultimately had and what we hope your honour's will agree with us as well from day one and then as the case progress it never got any better they think they tested out certain therese they have and in those there is they demanded our samples we give them samples and one point they had in their infringement intensions said we have imaging data that shows the immediate release portion of the of the of our composition of our template of our thing that is supposedly infringing we asked them for the data they we thought about giving to us at that time would go to court to try to force them to give us they end up amending their contentions at that point eliminating all references to do imaging data whatsoever we still never seen that imaging data in what i've seen a case we found that single is i don't think judge stark relies on that in its entirety by any means whatsoever he does and a pen analysis of the child patents and determines that the plain language of the of this climate will get into absolutely require rely on that nor to make that determination of what the plain language of the of the patent sets as it turns out i don't think there is a disclaimer here and i think you your honour's to decide on that issue as well because there is no   and they're using the word discrete in claim three and judge start solve the problem by using the word distinct in claim one when he when he explained what the plain language of the time one was  it's seems to me that it's that this actual language in here for one is not clear that it's saying that the that the immediate release for portion and the sustained release fortune could actually be mixed in the same matrix does seem to say either of them can be senate does say and in the end or and it's confusing as to what it is actually saying the answer is still there has to be two portions they don't they can be mixed together so that they're not discrete and discre up mixing them together in part of your manufacturing process it does seem that this part of the specification covers that description and that's fine it's not what we have here and it's not what we have in any example or any anything to do with the case but it's true and says what it sets and so perhaps that would be something that would be a laugh but undoubtedly in this sense this under this column for as well as in the crimes themselves there still has to be two portions so we don't have that situation here it is if we had that situation here then then then perhaps there would be a way of proving that there are two formulations and there are two forms there's a there is a and it's easy to visualize how that would happen you would have you start in the manufacturing process with lots of part of it you mix with the right releasing right controlling follow ups the other part you don't then you put them all manufacturing results they have no testimony that that's what we have here because they do not have an expert that is qualified what to do to tell you anything other than what we already know which is that our travels by approval and to do their brand of product that's what they're trying to get away with they're trying to get away with the claim not saying what it says but instead the claim just being as long as we can show the performance of the tablet and that's good enough to show that we've got infringing product that's not what they claim between discrete and just don't know what the difference between those two words is but you seem to think it's a warning all and they claim one is limited to distinct portions and claim three is limited to issued in this case so we don't really know this gets down to the claim one has to mean something different to plan for what the judge started with it was he said ok we're not going to require there to be a particular spatial  releasing bead and some are not and then you can sit there and say those things are absolutely separate and discrete from each other so there will be a physical separation between the two prime one judge stark says it's the the that was ready to be released immediately and you just press them together in the tablet with except in she made a tablet out of that then when you look under the microscope you might be able to you might not be able to tell the separateness of the portions but you know it's there because you know that they were made definitely you was made with two portions and so that would be one way to do to have a tablet that so the fact that there was a of leading of all these these right these right control over here as opposed to over here you would have a situation where time once a doesn't match it's still of violation it doesn't matter it's perfectly distinct as is required and claim three you would have a tablet that has two parts and the two portions are one of them immediate release the other one sustained really we know that's true because this is how they did it now a lot of this is hypothetical and the reason why hypothetical is first of all our product doesn't do that at all our prices hussein release formulation single formulat how do we know that what the n s a s what evidence do we have that that's not true nuffin they didn't take a single deposition and have any expert analyze the they think then even take our experts deposition this case was decided on i can't tell you what's in the tap i can't tell you how that the dissolution result i'm getting or the p k results that are happening in the end how that works i can't tell you that for two reasons one is the only way to find that out is if you look at the really a question in the manufacturing process i wasn't asked to do that and knowing that i'm not qualified to do that if i was asked that's their only witness and then come with any evidence in this case at all they just want you to understand and believe that the way that these claims are written is all we have to do from performance of the drug well have to show you anything about the the tablet is created in flame in the in the patent but it's a it's a good product  ingredient lists that argument appears on pages forty forty one forty two of our opening brief and that was the basis of what i had said earlier in terms of rebuttal on the proof that we had  is position yes yes the testimony and the analysis of our expert was that it was only possible to have two different releases of two different rates one very fast were about half i'm sure about thirty three percent of ago found a scent is released in the first hour and a second much slower release where the remaining two thirds is released over twelve or thirteen hours limitations so so we're not conflating the two and all the fact is there are without any dispute two distinct releases of a fantasy and our expert testified at appendix six sixty two zero eight he said that the data supports the existence of both a fast fractional quantity of the fairness and in an immediate release formulation