district court in granting this drastic and extraordinary remedy we stand on our briefs with respect to the remaining errors first regarding fairest in equitable conduct claimed the district court made both a legal air an memories same as yours i don't recall any specifically on that issue and your view on the law is that the district court would or should have and would of concluded that there was a substantial question of the liberty  substantial question as it's been laid out by the amazon dot com case and the titan tire stand which has been laid out in the amazon dot com taste the wave multiple panels in this court has it is that the challenger in this case our client needs to raise only a substantial question as to invalidity or on enforceability in this case and the other side does have a chance to present their own evidence on the other  substantial question of invalid which is a pretty stringent standard is it not i mean no basis to believe that isn't right well your honor i think we got to remember the context this is a preliminary injunction stage where there has not been full disk of or there has so amazon dot com has the substantial question where essentially a substantial question in my mind is less than fifty one percent it's almost so much a substantial evidence when you're reviewing a factual how do we know that theoretically what it what it means and in my mind you know we just use the language of the actual factor itself what's the likely hood of success of a pattern owner is going to be able to withstand your on in force ability  the honor you're out of the problem with using the standard of just likelihood of success is that we have this precedent we had this case off from amazon dot com which was the binding that's presidential thing but obviously it has to do with the actual time tested standard of likelihood of success on the merits likelihood of success that they will be able to prove a trial that your products are infringing their patent likelihood of success on the to bend towards bad and so now we have this language substantial question the validity substantial question of uninformed ability for your purposes substantial question itself could be a little indetermin what that means it sounds like your preferred conception is something that's rather minor but i'm not so sure that that would be consistent with the origins of the question points system something like under fifty percent ok your honor i'm not wrong about that i'm not aware of any cases but i will say that the district court itself talked about the different standards from amazon dot com and tighten tire and he said in this case it may make a difference so even in the district courts mind he seen the difference in the standards and to my wrong that the district court martials discourse on the  formulations and amazon and site in tire he was really focused on the question of do we should he just look at one party evidence or should he be looking at both parties evidence in terms of assessing the like end he says quote i will therefore attempt to remain faithful to the federal circuit case law in applied to tighten synthesis and he makes that conclusion even though earlier in its opinion he says when there's conflicting panel type decisions the older understanding of his discourse was he was talking about how the m's on top could be read to be limited to just looking at the challenger's evidence and argument only and whether that evidence and extent that there is a conflict with he concluded there wasn't is that you consider everybody's evidence everybody's argument in trying to figure out alternately whether a substantial question whether he's raised that's my understanding of reading is there something else  court wrong in terms of the standard he won right right we've never we've never argued that he can't consider both sides of the evidence that the question is once you do look at both sides evidence what is the standard to apply and is it that they need to show a likelihood of success on the merits or are there we are they have the burden that the show that we're unlikely to prevail on our defenses or is it just we raise a substantial question to see if they can counter it but there is there absolutely is a difference an test right substantial question on the merits is the reverse of that the negative of the yeah right the way i see it is there is the likelihood of success standard but the way misreading what he's trying to save here but the pair of the first full paragraph says tighten tired doesn't really overturn it it's not the power to do that it's rather reconciles it i believe it succeeds in doing that and then it seems this well what's wrong with that your honor is he is if he's mixing and matching and singing trying to i think it's just confuse of really what the standards are in the two cases because that's not what take entire said paying tired not say well as long as we raise you're presumably saying to a different crowd and which one do you advocate amazon dot com system that should've applied and again that's a substantial question but in the state and the sentence i just read you he says we're placing the burden on the defendant create a new test where i'm going to take little bits and pieces from titan fire and amazon dot com essentially come up with my own test substantial issue uses that language that's languages not been read on things long will will figure out what want to stand that standard right there ok but you have you said you had three points and you only got the point oh ok if you want to talk about my other points ok sure identify them so that you don't leave them with the the second which you talked about the third issue i want to talk about is regarded fair is not in french or in an unclean hands defense the problem with those defenses is the court ruled against on this but the courts and that made rule fifty two a findings of fa t and specifically regarding the nine infringement argument that we raised the court you know said quote from it's capable of operating in situation right and appropriate situation in that case would have to be in a liquid state but the claim is limited to a solid line afterlives composition and that's the problem so either the sodium phosphate is acting as a buffer in a dry state we don't think that can happen or the sodium phosphate is acting as a buffer in the liquid state in which case the la composition which is a required claim exist in the phallus they no longer exist so for that reason you know we just want to know what the district court concluded on this there's evidence on both sides this is an under review of the issue because if this report made no findings he took  a marker and decision gave us some arcane construction and we expected ok fine we understand you major construction how does that apply to our specific diet basic sodium phosphate have to hydrate what how does ours act in a way that actually would meet the claims and that that finding is never there so we can't review that i can't make arguments to it is really hands tied everybody in this courtroom because he hasn't made those factual findings i have a composition reading talked to who  agree with the way judge chen described it what the district judge here was reviewing was can he look at the patent owner's evidence to determine whether there was a likely to success or not and that's how the district judge read the case law as it turns out and as the district court noted as applied those cases that he was referring to also look at both sides evidence including the amazon case itself and here as applied we don't believe that that debate has to be resolved in this particular case although if it were we've favored the titan tire because it's a clear recitation and because it takes the baby into account but the reason it doesn't need to be resolved or the resolution of it does not affect the outcome is because the district yes and in the beginning the opinion he notes that where there is a close question that's where he's going to address it and on page twenty three that it would be a closer question under the way he applied or understood the amazon test but even as to that which was literally did they raise  substantial question or not the district court said no and on the same page it's because likelihood of success particularly on intent there was no evidence no showing of any kind as to evidence of intent to have the inexorable conduct called into question before i timing was that the patent so the whole timeline of events was for they've got to develop its product applied for a patent launched its product then there is an end of that was submitted then the patent gets issued so under that timeline of events there referring then to the standard review i think we've addressed that particular question councils and also prevent and address the inevitable conduct issue but again that really relates to the same point that the district co under either analysis for the any of copy was likely to succeed and particularly the intent prong which we don't even read as being appealed in the opening brief that was enough to show that his and his copy had a likelihood of success on the merits one above your friends final point notes on page eleven of the opinion fair is the only objection was a claim construction issue can it be that you call something a buffer in a solid before it's put into the liquid and the district court resolved that issue which was  construction issue as a matter of law with the claim construction order issued the same day and important to note the claim construction of pain was incorporated by reference in the preliminary injunction decision is another factor in the reply brief didn't address saying that there were two different formulations fall within the limitations of each of those claims so there is a finding that the judge has made that as to the elements an expert has submitted analysis in the next sentence says there is only challenge to those infringement allegations per se that the prosecution opportunity yes but they didn't take it and what i mean by that is your honor the parties discussed how should discovery proceed and present his copy issued deposition notices and various counsel called and said maybe we don't discovery let's work it out and then they submitted a letter to the court saying we don't believe discovery is required and that is what happened so what's going on now this preliminary injunction issue you raise with any of the litigation is still ongoing to seven just curious are those ranges the same kinds of ranges that you see in table two for formulation c d e where there represent ranges over time or are they individual lead tested versions of a where they were just all of them out and they just tested it at these particular levels what you had the data for a ranges the suggestion is you know you go from point six to point three four if you're using the same kind of analysis that you're using in table two well that is a change in increase over time so that's why i'm just trying to understand what do these ranges actually represent you unfortunately the record doesn't have the data side by side in that provisional for that point so you don't have the answer to that from this we do know from the other data though that you are correct there is a difference in the way the slopes are over time but it just depends on what the comparison is so if the comparison is a b to c t any you would see a difference over time but as but to make sure that we're getting in the context of the issue presented and b for t three did not increase over time and yet we have parents that are calls that the most reasonable reading would suggest that they do increase over time unless there's some other understanding of what those ranges represent was reinterpreted as no increase over time depending on where those data points were i'm one way to read it is the point one six was at the beginning and point three for the brand another that could be the it's a varied from point one six to point three four so it can go up and down as has happened in other of the sets of reported data so unfortunately it's not clear whether the person reviewing that underlying data was looking at in thing here's a trend that i do or don't see or if there was an up and down of the same numbers but to make sure that we're talking with the same thing here as far as it affects the appeal though your honor all of those a theory were about ten milligram of manitoba batches so the point here is that they were not the claimed invention all of those used the higher priority levels of mannitol and that's what is different than what was discussed in the full utility application and the later declarations all of which focus on what happens if we go from ten milligrams just three milligrams of mad paul and that did show milligrams manacles a three milligrams can tell her anything in the record that says yes move this is unexpected we also get increased ability when we go down from ten to three milligrams man it's all  data on that particular point because by the time of the declaration the comparisons have been made of two kinds die basic versus die basic in figure one of the declaration of the inventor it's emitted and then the die basic of the invention sources the try basic of the prior figure two and that's where this declarant good as they can bear compared to before with with the claimed invention using di basic against the grandfather product the grandfather product the ten milligram an atoll with dr basic yes correct so the figure two was making the comparison of what happens when you compare the invention to the prior art literally head to head which is what the exam or the athlete in figure one was saying if we stay within di but only change the man it's all what happens in both cases there was improvement of the stability result and as the earlier in the provisional had noted if the di basic is what they believed to be have been better so then when they were working within the  basic to die basic and figure once that's what they were able to show was the effect of increased ability resistance was really due to the three milligrams of mantle and not to any of the other variables that's the conclusion they were able to reach and the examiner in the notice of alignment said yes i see that that shows the difference between ten and three milligrams a man it's all does have an unexpected benefit system and here the district court looked at that analysis and concluded that there were as a matter of fact that was no substantial question has been raised and the time on other issues through twenty nine your honour's counsel raised the merits of the inexorable conduct claim and fact that the try basic sodium phosphate data was o after the non provisional application is filed exam or looked at and says that's interesting what i'd really like to see is a comparison between the tri basic sodium phosphate compositions and this guy basic sodium phosphate capsule issues that you have and it's ignored they don't raise their hands take your exam or guess what we actually differ sent that data a long time ago and that data actually show the tri basic sodium phosphate was stable over time they never raise their hand in fact they do next provisional was incorporated by reference and then you know we have case law where we then as a matter of law that is treated as if those contents are actually in the application itself and so they so i mean we can't know whether the examiner actually read the contents of the provisional but it's hard to say that there has been some specific intent to deceive the examiner when the examiner is charged with reviewing and reading the actual specification which these contents of been incorporated into and your honor regarding the case law and specific ten i think the versus rico case that we just cited is really very instructive as to the intent and again that was in a corporation by reference type situation where the natural vision was trying to incorporate the provisional it was looked at in terms of plain construction and you know did the applicants really have an intent to limit the construction in a certain way and because the information that was limiting in the provisional was pulled out by time and went to the non provisional the this court found that while that really shows a lot of intent that they had it in the provisional it got yanked out when it came time to the non provisional that showed intent they really want to give up the limiting information so you know incorporation by reference is discourse that is of it's a question of law it's reviewed to know well and in this case we think m p h she versus rico case is quite instructive to show how when you look at the broad circumstances and all the circumstances and here you'll see made was in the can or in the examiners reason for allowing when she said that she was allowing claims in this case quote since africans have discovered that the previous formulations are unstable the problem with that is we know the previous formulations were not unstable the previous formulation for the tri basic containing formulations that were in the provisional but then were never highlighted in the non provisional so the premise for the examiners allowances well they've shown that the prior our grandfather products are unstable so now they have a new stable version with a promise that promise is wrong it's dead wrong we know from the information that was yanked out of the provisional application that there was data showing that the