job and that could be viewed as substantially fewer and the air that the district court made in this case was refusing to construe the phrasing the claim in its entirety and substantially pure claims one through seventeen of the patent which is the six ten and includes claims one through seven which referred to substantially pure appeared in british compounds and also claims twelve or seventeen which refer to substantially pure reggio isom it seems to me that it's difficult not to conclude from that passage that the embryo would say that substantially pura first of both i d the compounds in claims one through seven and also the claims in compounds twelve through seventy which means the answer is the context which was very clear and record as i did this record would seem would they not to cover both the intermediate and the final product right because claims one through seventeen include reference to both they certainly do on the product this court of course has has changed the law to an infringement cases where we look at the process steps in those claims but at that time and in the interference context all th under the claim well it makes no sense from a technical standpoint or sample it for the claim before the court in this hearing because the claim before the court here is unlimited as to the purity stop there is no purity limitation for the end product so to take a statement out of context from an interference focused on who was the first to invent i'm sure that's a sad and imported into claiming a different god i think he's improper and means that the claim requires that you start with highly of your immediate to make what could be within the scope of the if i can find a reference yes one of the news on there to reference is in the in the text of the specifications  verses with respect to the final product that's essentially what you're arguing as i understand the ultimate point that you're making to us yes yes right now it's in a couple of correct so your argument is that when you do that in that single sentence the word substantially pure is used twice in close conjunction that it means something different in each of the to use a person of skill other would understand that you don't need to have the same level of purity when you may not need to but the question is did you this is a crime a process in which you were describing the same level of purity by virtue of using the same from the use of substantially pure here and i believe this another reference similar that they're used in the same sentence what do we infer from now about the meaning of substantially fewer read something different free of anything else that might have gotten into the the next year during its preparation for pharmaceutical grade materials for the end product that's going to be ingested by a patient that is generally understood in fact  it to your honor and my best understanding when when in the prior art process you came out with a one to two ratio of good one to one good to bad or fifty fifty  para two percent and two percent or less and that does that help you in this case i mean i had understood that the problem in the case was that the accused process was using a a mixture that included more than two percent of the net that would help us or it would have been clear to you would you would be able still to reach the accused process once you know process documents to prove it so just to be clear i just want to make that point i think your honor to focus on something that i think is very important the case and judge you and i think you're came around to this point also in your questioning about what was this thirty three percent of the power and sixty seven percent of the male we subsequently learned that was a mistake it's got to be the other way around sixty seven percent are very dear percent better but ok this is what it says here since these components are inseparable it is not substantially pure as applied to the end product based on the six to ten interference means ninety eight percent with respect to all impurities and the i don't see how they can possibly argue otherwise their inventor the embers of it and declaration invention that's true but isn't dealing with intermediate mixtures of reggio isomers and then using the word substantially if you're there in connection with all the bits and again let's remember what this invention was about that was the point you're on to raise not only the beginning of the abstract of a say to present invention relates to producing substantially if you're depicting the riveters they say it in the first sentence of the summary of the invention and they say it again in the first sentence of the detailed description everywhere when they talk about what this invention is about it's about producing substantially pure exactly by starting in the way they do that because they concluded that the villagers were inseparable the way they do that is they start with a substantially pure power c p k so they are they start with a substantially  compound from the get go that's how they get to a substantially property to read it according to them you couldn't get there otherwise because the mixtures inseparable once you're in the end product that's what they told the world when they wrote the back so that's why  that that part of the intermediate why do you have to worry about solvent contamination there are other things that would make it less than ninety eight percent back the question is what did they tell the world here it could it could somebody from starting from scratch apply purifying it in a lower stage process i agree with everything you've said except i would add one additional thing and that is that they use the word as i pointed out substantially pure to apply to both the power and the matter you see that it was just love the writing no i don't think it was a lot of the writing i think they intended the word substantially pure to mean the same thing in both locations because that was their invention that's what they saw they were going to do they were going to take a substantially pure and make it substantially pure end product by starting with a substantially pure into medium and bear in mind the cases that i've read save that when you use the same word in different locations in a pattern it's presumed to have the same meaning unless there's some clear reason not to attribute that meeting now when they got to the six ted prosecution and the interference they need to find the words substantially pure they attributed a definition to him and it also  interesting wishing over certain references the fees particularly the guard ties reference at the top of page a sixteen forty eight they point out that this particular product had significant amounts of urine components such a steroids liberates fatty acids etc and then they go on as they talk about that at the end they say as is evident from the foregoing the amounts of impurities present in the garage samples and they weren't talking just about men and now they say is far greater than two something noble when they then say at the bottom at the end of that paragraph in the be the next short paragraph they point out that because those impurities would present a greater than two percent it was not substantially pure so they were saying any impurity they get you above two it not substantially pure and when the of board of appeals issued its decision they also ruled in page sixteen sixty eight based on what applicant had asserted in paragraph twenty seven they say a person of having ordinary skill would interpret the phrase substantially pure in the context of the democrat to mean noble more than two percent impurities they did limit that to the to the didn't use the word substantially pure at all with respect to the end product only used it with respect to the power c p k into medium so when they said substantially pure and defined it as to all the claims there's no question they were talking about all the claims and let me just  and to me this is unequivocal i don't understand how you can say that this does not make a clear statement it says and that's the passage that i began i believe so yes but it's worth focusing on because it says when read in light of the specification which is the same spec we have here there all the common spec one skilled in the art would have understood the phrase substantially pure as used in claims one to seventeen now again in claims twelve to seventeen the only usage us of standardly pure is for the intermediate they don't talk about the end product in twelve to seventeen and so somebody reading this is certainly entitled to take away from this that they're talking about substantially current use not only for the end product but also the intermediate  others that substantially pure means two percent in the context of the amber a pattern it might be useful to know exactly what it is that he said yeah i'm not sure if they literally meant he said or they were referring to these arguments that were made in  the let me come back again to the point i want to make sure i understand where you are because this may turn out to be an important point in the case your position designer standard is yes you think that substantially said in response to my question earlier that's not an issue on which this case turns is that correct i'm hesitating because i believe that the question i don't think well i understand that you don't want to do that but my question is right if we should do that does that matter to the disposition of this case mr birdhouse seem to think it does and you earlier seem to say no it doesn't and i want to make sure that we at least have well the party's position on that i'm advocating below the position that it doesn't matter i understand if mr berger prevails on some of his arguments it may matter so i don't want to say unequivocally there's no need to reach that question because it does not affect the outcome under any circumstances and not prepared to say i think that's fair that's fair thank you thank you so again i think that that if you if you look at the context and i just want to again go back to the patent just for one minute and i'll sit down but if we could just i want to go to the point that we discussed a minute ago and i didn't get a chance to finish that the privilege judge pricing was absolutely right again you have to look at what this whole adventure is about mr berg up against said that there were instances disclosed in this pattern where they were doing the revenues of described that are not substantially pure i emphatically disagree everywhere when this invention covers starting with this so substantially pure and getting to a less than substantially pure paper doing the rivet and running anybody reading this patent cannot possibly walk away with that belief and where they referred to something called the that paper dean end product is the reference to the earlier reference was substantially pure and prior so you're saying it's just a short form exactly they're short handing it and it's very clear from the spec if you the answer that we have to that is that having to find have a good clue that the word substantially pure is used consistently throughout to refer to both the intermediate mixtures and the final product and having defining the final product as ninety eight percent pure with respect to all of purity is during the six ten interference that definition must by necessity bind the definition of substantially pure as applied to the intermediate and the fact that they could have done something different and treated it differently and made it clear there was a distinction yes they could have done that but they did what they did drawing a distinction as far as the method period is concerned this is what troubles me you have read that finally as if you have some things wrong with which needs to be administered pharmaceutical certainly you need to get rid of all the other stuff that might have been involved in the assorted chemical reactions to get to this final complex compound but it is actually and seems to be the case that  is the way it works i believe that they can find the intermediates and then this is what i really trying to understand by getting rid of them they matter content and i gather that that's not that's my understanding of this fact and that's exactly what they do that's correct so that whatever it is that is substantially purified in one indeed applies to the other that what it's here a five is the metal content and not all of the other things that might i don't understand what you're saying i follow you completely i understand you making the distinction between substantially pure is applied to just a just the men in power in the intermediate as opposed to also the other impurities that might be present searches you know other compounds whatever and a man to man in power in the final product right and so my answer to that is simply that having used the word substantially pure applied indiscriminately to the intermediate and the final product and having defined that term in the interference to mean something under the case was i understand it you've got to apply that definition then also to all the context in which it's used and that is further strengthened by the fact that when they define substantially purer in the interference let's remember there were claims twelve to seventeen which only used substantially pure is applied to the parasitic p k intermediates so when they said substantially fewer means as applied to claims one to seventeen and the interference they must have been talking about it as to all if they didn't intend that they were million ways they could have made that clear we're only talking about as applied to the end product not intimated that they do any of that no they said substantially pure as used in claims one just seventeen applies and means the following and they could be said it was ninety eight percent with respect to all i'm curious and having said that i don't see how they can just walk away from that and we should just take a quick look it's well they say as i read it is they're saying that the product by process claims don't provide a limitation distinct from the planes of one seven i don't think they said you only have to focus on claims went to seven and again the applicants said substantially fewer as used in claims one to seventeen those with their words nobody forced them to make that statement that was a statement that say make and again just take a quick look at page eight fifteen fifty if you would substantially pure it continues in column twenty seven never uses the word in the context of the end product it again repeated line a talking about converting the substantially pure reggie why some are so claimed twelve is only limited to the substantially pure as applied to  arc they they use the word substantially to distinguish and said because i think that other impurities that bring in some purity level above two percent it's not substantially pure so they took the position that substantially pure as applied to the end product certainly meant it couldn't have more than two percent of all impurities that's why judge brown got his construction from and having again for the reasons i've indicated having said that substantially fewer means the same thing for the intermediate and the end product it seems to me they're bound by that and they can just walk away now and say well we could have done this or we could have done that or you could make a process this way you could have done this it's really not important the at the media because you can get it out another way at the end that's not what the record shows and they define their terms under the that car only to get to light i think was what thirty three sixty seven we looked at that and column for the reality was they even during this prosecution when they actually analyzed car they figured out that car got what we have to ninety six point three percent that's when the prosecution because he we priscilla and what he did was after we got to the end product he figured out a way to get the mete out they were just wrong about that you can't separate out the method they said you can't separate out enough they make this point if you look at pa fifteen let me just this is i think worth looking at real quickly if you don't mind that's was the point i was making in response to checklists question if you look at it at fifteen thirty one to fifteen thirty two of where they were prosecuting the prior application that was the this the pet the seven or three issues from the continuation of the sort of same claims they were arguing and they make the point that that car now they acknowledge that car can have a reprint was a sion treatment but they say even after such treatment it's still contains an impurity level of up to five percent so they recognize that you to contradict what they thought during the prosecution it became apparent to them they did some experiments they tested they had some of the car material because it was their own car by the way one of their employees of one of their predecessor companies and so they had that material they tested and they found that it was fact a very high purity so that again that's what that's what we do we've we have actually improved on the car crystallisation process we've made it even better but essentially we follow that a technique we make the final product and we doesn't make c p k at all so it can't be referred to the interviewee until i think that response well now what about the embers  a seventy six are to the prior art process and i think even more important those references are telling us what is not a substantial  contrary to the understanding of a person of ordinary skill in the art who knows you don't have to have your intermediate as pure as your final pharmaceutical great product you have done i'm sorry after the big reaction is carried out with the c p k and that's then that's an example seven and this is the example where facts presented eve is made of this was the specific detail is fifty five forty five now that's a different dispute they say they're using the prior process we have evidence they're not a theory they are in fact over in a foreign country and their plant using our patent process include anything oh no we believe it's only the medical center that's all this that's all that's focused on the top the only impurity that's ever mentioned but my only point here is that this example tells you that you after you do the reaction the patented process reaction you get a crude product that sex offender you still have to clean it up as you do with any chemical process and then it talks about how it's done for  processed makes crude products crude facts are founded in and that is covered by the claims and therefore the intermediates shouldn't be limited to this too high too stringent of a standard that is not found