and those were irreparable harm in the balance of equities i'd like to focus on claim construction which is really where we parted ways with the district court and that was the basis for the nile the deny the claim construction is reviewed you know by this court even on a preliminary injunction which now the district court aerate its claim construction i'd like to point the court particularly to appendix six found at the back of the briefs the just a court erred by instead of looking at the ingredients in the context of the actual instead of the district court asked what the ingredient might be capable of in a different concentration and some hypothetical mixture that's not being studied in the case and that was that was error under the plain terms of both the final history as well specified and specifications themselves and like to start with the final history appendix twenty three twenty five in particular and that is the most clear definition on this quite and it says you have to look at the actual and it did and i think it in that sense it parted ways with the district's reading for other reasons we are not principally relying on the p g are grants including because they were not before the district court and under this court's decision in the tennis case they are not directly relevant on this record but i'm happy to address them or what they might conceivably be relevant if we agreed with you that the claim construction was incorrect and remained it time has passed things have happened in anticipation argument institution on obviousness with an interesting cabbie at the assessment your this might be a case of objective in to ship being serious yes in fact in just briefly to address that point in the second institution decision the future would be did institute of course but it did not address one way or the other the objective in the show which we believe points strongly in our favor and could support a likelihood of success here it what's the due date of the usual due date  in that the p c r in which it in that instance a final decision yet i'm not sure off the top of my head i know that the proceeding is ongoing you know we plan to contest it and the i think won one important distinction in terms of what the p t b is is doing there or has done so far it instituted to be sure but it explicitly said we're not addressing objective in disha and here one of the prior references date from two thousand and four approximately the but if we were to agree with you on the point construction issue there would still be the invalidity issue and it seems to me that the district court kind of gave that issue the back of the hand by line on the original grant which doesn't carry that much weight and really not understanding the reference very well the district court's treatment was somewhat brief i  accumulating agent which means it's binding to a metal that is part of the solution that ogawa is using to keep the metal from sort of falling out of the the liquid it's not performing any function along the lines of what it's doing in the form one nine  singled out and there's not none of it was examples in fact involve using malaya acid in the connection with the bleaching formulation correct there so we think that but that's only correct why you say to protect the here i mentioned was let's let's correct the claim construct that if we were to agree with you on the line construction we have to send it back for the district court to further considerability issues it's our submission that this court could finally there's a non obvious on this record however at a minimum i believe this court should send it back in so that there could be a further development on those on those issues as as you mentioned just like this report did not give a lengthy treatment to them and their the put your claim construction is right would the claims be indefinite based on that and the district court said looks likely to me let me try to address that point  indefinite because it relies on the human eye to make a determination and this court said no the human eye is objective even though there might be some discretion at the margins this is enough guidance to a practitioner to a person of skill in the art to make a determination whether in that case it was a printed page with some hidden codes on it the question was whether they were visually negligent or not this court held that's objective enough in this case similarly there's not much of a disagreement frankly between the parties as i read the briefs l'oreal is pointing to some literature which supposedly found these guys that are in question yellow blue and red in certain high concentrations can impart can visibly change the color of the hair that you can see this is l'oreal brief thirty two they actually use the words visibly change and our position is the same it's just that you look at the product or the mixture at issue in both cases you're doing a visual inspection so it's there's this i think this indefiniteness question is the perspective an ordinary skilled artist the ordinary skilled artisan is not the hairdresser it's the person in their chemistry yes i would say well in this case the parties more or less agreed on to a person of the skill in the artless and that was someone who has a undergraduate chemistry degree and has a has a few years of experience in the hair care industry so in their hair in or out of creation the history of that hair i am not entirely sure i think it's it's more or less the same in the end because it really determines someone someone who works with these products on a day to day basis can tell if there's a change in color after they fly and maybe the most telling piece of evidence on indefiniteness is l'oreal's own approach in this case and that can be found at appendix fifty four thirty two l'oreal did the exact visual test that all of plexus ask me to look at an olympics are asking to be done as claim construction you take a swatch of hair you do you have a control swatch in an uncontrolled swatch where you imply that the product and you see where there's a change in you you look at it the fact that l'oreal can do it i think shows that it can be done it's not impossible and great and again sonic's i think we're well within the con the unless the court has any further questions at which i'm happy to address now i reserve the rest of my time for a volatile ok honor because it came later but since you brought it up i wanted to bring it to your attention and that's pierre paper thirty seven at eight tonight and what the peter did was there was this issue of secondary considerations well up next trying to seek discovery considerations and what the p type said with respect to this issue of the hair coloring agent they said quote it's a binary determination either the product of the coloring agent is in the mixture or it's not in the mixture  quibble just a bit but i think i agree with you and here's why and this is the point i was going to get to if you look at the claim the claim here says you have a method of bleaching here you mix the form first formulation with an active agent formulation then it says it has a negative limitation it says when the mixture does not contain it here coloring agent which is precisely goes to your point of three not what they want to do is they want to say well the excuse products do not color here that's not the question what the difference between is which is exactly what your friend on the other side said it was a very saying composition can be a hair coloring agent or not the pending on how much of it you have when you put it on the hair and your view is one molecule of yellow five or three or whatever it is a hair coloring agent if you put that on the hair or even if it wouldn't color hair if you put it still be a here coloring agent or here current his answer was yes and i think that's that's fatal to their argument here that the concentration doesn't matter and that sure if it matters but does he say if you change the concentration so that there was  here one molecule you know it it never got to that point right so you say you could change the type of the concentration from changes that a lot changes a little your i think this goes back to judge rayna's point because these are obviously these  well known ingredients right yellow red and blue knights we've submitted plenty of evidence in the record if you look at a red brief thirty one we cited plenty of evidence even their expert admits that these dyes do impart color of yet you would say you know higher concentrations i think our point is that when they did even their expert agreed that it semi permanent colorant which again according to them is a hair coloring agent if you change the concentration he didn't limit it in any way he said it would be in her coloring regardless of in their opening p i motion they started with a plane and ordering meaning construction and then they switched to a lexicography based construction in their in their reply brief and if you look at you have to correctly found that there is no support for the notion that you actually apply this method and then you do some post talk at the time a nation to figure out if the what you apply to the here had here covering the engine or not there's for example lightens the color of your ear and then if you so what they're left with are these self serving prosecution statements that were made ears two years after the original finding of the original application and i'll also point out brief one because i just want to make sure the court has this right the date of their amendment is wrong they said they made that amendment on march thirty first that's not correct that a man was was made months later in an in in a amendment in so it's fine and that's where i think let me actually get to the indefiniteness issue but well what the claim language is construed in the light of the prosecution history the prosecution history helps them  contrast to just that color the product but nothing short and then they go on and make that statement and as a just rondo you know that's that's the that's the statement that they like to point to and the district certainly had all of this before it and still used in here care products which is the case here than it is which changes the color tone of the here it is applied to based on regional inspection and what judge robinson did in this case when she was applying the plane in order meaning that phrase she said if i look at these dyes the yellow red and blue dice in the choose products it's undisputed that they do color here they have the properties of coming here to dream of going back to your point and that's where she that's why she agreed with us that there could be no infringement even under the improper you are again i think you have to look at the claims if you look at twenty three twenty one judge which is right next to that page you're looking at it actually has the claim there so if you look at the claim it says where in the mixture does not contain any hair coloring washing the car reset all ok what if after two washes if it washes out what if it's three washes and you could tell he had trouble answering those hypotheticals so the bottom line here is that the same concentration of hear color and maybe hear  so we just heard from my adversary that the specification provides no support for the prosecution mastery that's incorrect appendix page seventy six eleven makes a very important distinction between a quote unquote and a quote hair coloring agent unquote those are two different things and how do we know what that which it is we know based on the concentration so we actually see all that much but is it right that the specification does not talk about concentration at least as to those terms it must us to the others right isn't some claim element of the well let me yes structure onto that is correct active agent is actually defined in terms of a numerical concentration hair coloring agent there's no numerical requirement associated with concentration not sufficient to collar the hair it would be as the pattern calls it a dot it would not rise to the level of a hair color agent and the patent may be in the abstract in the hot air balloon example i understand absolutely understand the point but in the context of this direct it's making a distinction between a di and a hair color region and in that same column it refers to these sorts of ingredients dyes hair coloring agents according to their form of use were function in function requires looking at what they do not just whether they're present and i want to emphasize here we're not really talking about a gray area i mean these these dots which and i'm going to call them dies because i think they are in this product these are ubiquitous and all sorts of shampoos and conditioners at the drugstore no one understands them to color hair they don't color hair in a very extreme large concentration they could color here but that's not we're talking about an in fact would be antithetical to the function of of the olympics product or the l'oreal product for it to contain something that colored hair these products are designed to be versatile to protect hair whether it's in a bleaching treatment some other context including just applying the product itself if one had a real hair coloring agent in th it would really alter whether the product could work in a bleaching formulation which is the claimed process right because bleaching removes color from here and if you had a coloring agent that really was a coloring agent in this product it would it would sort of counteract what your goal is which is to remove color instead you'd be adding color so it function which this court has considered in this sort of situation in cases like med rad site in our press is a very important point i'd like to briefly address the question of the borscht declaration in fact boris made the exact point about concentration this is at peace six eight one seven page ninety of the deposition lines nineteen to twenty five he talks about concentrations in manipulating the conditions comparing apples to oranges he did not he did not concede anything like the the oriental interpretation and the prosecution history was not self serving it was a very important moment in the prosecution history when the word hair coloring agent was added to the for the patent for the first time