correct correct but but i but i took the point from your dissent that you really need to look at the words in the words here are different than in multi player and in other markets cases the words here are similar to that in rate krrish case  know i'm well when i do is that may or may not be your honor but but i'm just taking some guidance and i but i think it's a good one in that you need to look at the words and the words are important and of words that are important here are the  of the language at least one so that language if you look at krishna krrish says is that that implies that there's something else and so that language is not in multi layer and it's not in shire shire for example nests consisting of and and and consisting of so that's a double in there here if you look at the language you have a comprising which is open ended the at least one which is not and important to your view that wow let's just think about binders while other unlisted binders are permissible the percentage ranges have to be matched only by the list listed ones correct so that you see n d get content filled in after an initial version not quite initial but almost initial yes version of the claim that in which the diluent has listenings for the other two do not that when the specification that's wrong term the specificity was added by the examiners amendment that principle that interpretation that understanding fell away and suddenly the totality of binders could be more than fifty five percent that seems problematic to me and i'd like to hear about them well you can't you can't go about one hundred percent i think i think really what you need to look at though is if you go back to what the nature notoriously difficult in fact a nightmare to formulate in so what happened here is they came up with the active they came up with the sole version of it and they came up with these except be in classes right and the way the classes are and so if somebody came along and added one percent of something else is it fair that they can defeat the patent that way when it makes absolutely no difference in terms of what makes this invention what it is right this is this magic bullet drug and so it was should somebody be permitted to beat the patent by putting in half a percent of something that doesn't make any difference to the invention at all that's what comprises his fall yes it is but that's also why the at least is there as well and  function was considered not to be an unlisted exhibit and that to me is particularly difficult in terms of the reasoning here and looking at the global i could look at this invention in its totality and what it was intended to accomplish and so if i have of preach a lot and i start which is a deal you want and it happens to have a secondary function as a binder he was calling that to be this is the issue i yes that's right he was considered to be an unlisted binder and now to defeat that would defeat the infringement claim but that's supposed to be a preacher a lot and i thought it was supposed to be in the composition and so because it was it was actually operating to have a secondary function should not disqualify it or take it outside the scope of the claim is something that's on listed now if somebody comes along and comes up with a different binder that's nowhere disclosed active and that's what's important and if it serves a secondary function it doesn't matter i think one thing the district court found was that there was wild agreement that all of these exceptions have secondary functions or they can have secondary fun so so i think you have to look at the invention that something that the district court did not do it didn't it didn't really look at that the invention here the other thing that this report didn't do just getting back to this out at least one language this record never dressed up during the trial it was attempted to be brought in this issue and and the tribal council part of a claim construction you know if they have to claim construction or you are now well i guess so but there was a disagreement which came up about a week and a half before trial as to as to that language in fact and the old i mean there was a claim construction proceeding about a year or nine months before trial this record judge said even f the trial he said well might my ruling apparently cause confusion to trial and there did to me at least seem like a lot of confusion at trial and that he was not going to proceed with the case until this issue was resolved by the federal s and so there was a little bit of confusion or maybe a lot of confusion on this issue and the and the issue really is that close versus open and that's really driven by the at least want which is not in multiplayer and it's not in sh that that that that the rest of that the rest of that element is open right that can include on listed and he on a list that could be something that's not supposed to be in there but it especially includes except me and that are supposed to be in there anyway according to the patent and they just serve a secondary function dr is not think you can actually do the part that i guess i'm remembering that he said it seemed to me to go beyond that was that with the plasticizers the nature of a dry as a binder as a binder he's different from the the district court found that when you put a couple of glasses sizes with the h b c a mixture is now a different binder from what he was allowed well that's inconsistent with his determination at the h p c h p m c is a distinct chemical entity in open drive what i would say about what what you just said judge donna is that what she was doing there was more of a deal we analysis rather than a literal infringement analysis when you determine an age p m c is a distinct chemical entity in the overdrive and help drive and it constitutes ninety two percent of the open drawing the other eight percent has nothing to do with being a binder it it well while it is it may have enhanced the facts but again i think that's that's more of a deal we concept right in terms of a function way result maybe you get a somewhat different result that does not mean that the h p m c is not in the solution it may be it may have an enhanced binder function because of the peg and just accepting that has as true for the purposes of this argument that does not mean that the h p c is not there and that was his factual ruling and so you know if if if if we have to go by clear error when it comes to the clear our standard work comes the fact finding we should also be able to get the benefit of his other rulings which is that h p mc is is a distinct chemical entity in the open dry which means that it does think chemical entity in the end the solution so and lots of questions are not i just want to move on to prosecution history stoppel because this is this is an important issue for us now and if you can be  independent claim but there was no no narrowing in response to the prior art the only thing that was narrow was the range of the active and that's why the claims are allowed so we don't even get to the issue of there may have been a narrowing but it certainly wasn't with respect of non infringement right and we've had a bunch of cases that say in that circumstance the defendant can say is only is this judgment sticks we're happy litigation over if it doesn't we've got some invalidity differences in counterclaims we're going to come back with but you're in the opposite position where you have a judgment that says you infringe you know i just can't i can't quite him and i don't know of any cases where we have said there is a final judgment or will we don't have here and even that there could be a rule fifty four b judgment that allows you to say what happened here as to zite as we're going to put the invalidity claims do not dismiss them without prejudice but if that judgment the when you actually have in front of you is affirmed i soon you're not going to stand here and say we here by four go  infringement doesn't end the dispute because that judgment could be undone by the invalidity defenses and if you were if you prepared to say they're gone with prejudice and that's one thing  multiplayer and that's exactly what we had in shire the words at least one are not magical and least one tells you that where you can have multiple members of the markers and mixture tells you you can have mixtures of those and that's what you least one of those who cited yes now as for why this doesn't really mean comprising dr otto you put your finger on it we started this as a claim of limited to fifteen percent binders then an examiner said you've got problems with the prior art for i believe how about you do this you put this mark reuss group in limited to these things and now the result of that meant according to the engine would be to have basically open the amount of binder to anything you want doesn't have to be only up to five percent this by the way also runs into the real things going on in the crash firstly putting aside the different standard increase this court said listen the language requiring quote at least a portion within the plain language there  i would suggest that this court has never said that using the signposts for mixtures and multiple combinations that the court gave it back in two thousand and three  errors here yes we we put all our arguments in there he did seem to change the burden with burden of proof of a sudden this is job to rebut allegations but mostly into cases and you have many of them before you don't worry the patent holder doesn't have to worry about the burden of proof so much because afterwards if you can find other stuff from other people said about you the point that's all the time get to rely on us or some sort of procedural objection or something to take because we'll start getting against each other and frankly there should be a point at which it's all day she doesn't affect the burden and quantum of proof you have to refute and it shouldn't affect the patent these burkle of actually prov infringement but even if you were going to say open season started you next you're going to be fighting each other as well for the court's convenience even if you're going to say that then when the court does reach out to grab some evidence at least from let's make it evidence that's not clearly erroneous the court said that's a different argument well that's a but it's happened here the judge said well i see from this expert in over twenty percent it won't me please the court my name is aaron barca i represent primal healthcare in this case one of the two defendants whom prevail the law with judgment of not infringement counsel for engine said this is a complicated case that may be true because there are three defendants here and one and one is across appellant but for pyramidal this is a very simple case this case is a textbook example of prosecution history engine filed broad claims to a formulation comprising at least one binder the examiner rejected the claims as obvious over prior are disclosing the active ingredient and formulations comprising finder's and disintegrate and then amended the claims to recite a specific amount of sin a callous it from about twenty milligrams to about one hundred dollars milligrams the examiner maintained the rejection even in the face of that narrowing of the amount of cinephiles that the examiner suggested adding them are couche group of four binders and another mark huge group of three disintegrates agreed to that examiners amendment then the claims were allowed and in allowing the plaintiff the examiner stated the closest prior art fails to specifically to disclose or render obvious the combination of components and in the amounts there upset for in claim to there there can be no credible dispute that the amendment adding the mark to the or push groups to the claims was made for a substantial reason for patentability and generalize heavily on their own that can i say yes here i think you said that after the absolute weight as opposed to the percentage rate of cynic house it was a appears below authorization for the examiners men and was given a telephone interview with lisa russo on march th two thousand and fifteen before the mailing of this examiner amendment on march th so there was an examiner initiated interview where the examiner maintained their rejection and proposed a claim amendment adding the mark who should groups and i'm sorry i just want to be a little picayune here where the examiner maintained their rejection show me where that is perhaps i shouldn't have used those words we're going to it doesn't make a difference their whole point is that the only important proposed amending narrowing the claims dramatically from at least one binder and at least one disintegrated to mark groups comprising the specific binders and specific this immigrants that were dis specification and in the examiner i i think i think i now understand what i understood before you said something i don't think your argument depends on what you asserted about how there was a rejection overcome the prayer or he didn't do that he made a very substantial narrowing claim amendments that amgen agreed to amgen says that wasn't for reasons of patentability because we later put in this thread i think i mean there their problem is that the record doesn't really tell you that it wasn't for reasons that these pieces work for that would he says with one possible exception and that is their argument about have the three pieces of prior art contained all of the so we this part and is argument right so can you tell me why they're worried about that yes they're wrong because the prior are one leaving aside the bandwagon in reference which disclosed in accounts that you going to the suit reference h s you that reference disclosed ten binders and twelve the senate grants you multiply those together you get one hundred and twenty combination binder disintegrate and combinations the other reference creekmore disclosed in one thousand binders and eight on ravel and confusion tell me why it would be wrong to say as long as any one of the ultimately selected finder to see disintegrates appeared in the prior prior art would stand as an objection to these claims well and because the prior are also disclosed hundreds of other combinations and and slurry there miscible but they don't have systems in florida correct not a chemical react exactly open drive is made by dietary process which creates a molecular dispersion of those three ingredients and that molecular dispersion has completely different properties different in its from h p and c that were just mixed with ag and that was the subject of extensive tests and in fact the findings with the district physical characteristics and binding mechanisms and commercial sources h p m c is a single molecule whereas open dry is a molecular dispersion of three distinct chemical the testimony on that  the drug in a satisfactory release curve on dissolution but that overdrive did so that they fundamentally behaved differently with respect to a critical function of the final formulation this really is just a fact dispute that will res mixtures there of any at least one cannot mean the same thing right they have to have different meanings they have to be present presumed to have different meanings and what we're saying what what our position is that the mixtures there of take into account where you can have more than one of the listed  pt me and but the at least one was intended to imply that you can have something else in there in addition to what's listed in the market because otherwise you'd have to conclude that both of those terms mean exactly the same thing and we can't we we should not be doing that because that that's not proper claim construction right the at least one of the mixtures there of you can say that they knew same thing and so they have to be different and so when you look at the case law the two cases that we cite and there's no cases to the contrary on this where the cases that we're aware of where it says at least something of fortune at least one in a mark where it says for example from about one percent to about five percent by weight i think least one find i think that actually supports our position is that good well to me that means that you need that percentage of at least one binder but that there's other binders because of the at least language that you can have in there so you have not read that as saying the sum total of binders must be between one percent and five correct now let me let me let  me just make one point that i think is important one i think a lot of this dispute centers around unlisted binders being something that's nowhere disclosed in the past that as i said as i said earlier is different than a situation where you have a list of binder from another group that people are saying is an unlisted binder and that i think takes care of the percentage question judge toronto that you're raising because  that with respect to anything that's listed it has to be governed by those percentages and i think that the that is the secondary function of the listed binder right should not fall into the same think the district court really went too far in a couple of different ways number one by the by by calling a listed by listed binder for example saying a list a binder has a stiff it has a secondary function then it's outside the scope of the claim so that was too far and it was also too for too far to say that well you can't you can't have anything else in your either whether it's another listed binder or whether it's an unlisted something right and so those are two different issues i think the result is th one thing that we cannot ignore is the fact that i think judge you or your touching on this a little bit right open dry contains ninety two percent age p m c this court decided if after all of this all of this fact finding that it was a distinct chemical en you can take any substance and throw some distilled water in there and create a slurry right and it looks different it's not the original form which may be a powder or something like that but this is this is just what you know chemical formulations are about so i don't think the question is whether they look different it's whether h p n c is in the end a formulation and it definitely is because oprah drives a ninety two percent and it's a distinct chemical entity that's what the court found and look we're not raising other other factual issues here right because it's difficult on appeal to deal with those but this is one where the court committed clear error and it came out the wrong way notwithstanding his factual find that council for and we all talked about the secondary functions being irrelevant and all of this fact finding on the secondary functions and again i think that's where the district court went wrong because the secondary functions should be irrelevant especially on literal infringement if you want to the court it may be appropriate to get into that issue on doctrine of equivalence but not on literal infringement one thing i want to do just rejections were made to place the claims in proper format and to better define the claim subject matter including equivalent the examiner did not come back and dispute that despite the fact that there were at least three contacts between examiner the african after that there were two notices of allowances and one interviews and one interview and so the family never disputed that and then when we get to the end of this and if you look very closely through the prosecution history you follow what happened there specific couldn't really distinguish them from here no but there was no change in the claim there was no change whatsoever i mean i mean the claims included the percentages from the beginning and there was no change whatsoever and then again we don't have to guess as to why the examiner allowed the claims right was a specific narrowing of the claims based on starch being in a prior art that never happened and so there is there is no narrowing due to patent billeted and at a minimum at a minimum it was combination of at least one and mixtures changes the rules of how you interpret everything else ok i mean i think that's at one point why shouldn't it why shouldn't because they're using words the flags that this court told grafter to but you can have more than one thing in a composition without having a mixture of those two things it's not doesn't follow that it makes it that a combination of things is always a mixture to relate to what was inside the same things it's not outside yes i mean if that would be my answer to a slightly different question but yes that would be my my answer to your question but i also gave you a another answer if the rule is going to be you want to cover having more than one and having mixtures of one but if you put language of both the at least one and the mixture you lose it all then i guess we should make that rule and tell