three finding of not infringement a summary judgment then mai ling does not believe the court needs to reach the additional issues that were briefed in our papers your honor you asked a hypothetical question during the high spear argument about thirty one batches and whether or not you would have to have thirty one batches to know whether or not you infringed the patent suit and if in answer to that question  counsel referred repeatedly to the fishing mclean hasek and i think that really cuts to the heart of the issue here is right now i brought in a vat of the valerie with an asinine level of zero point four percent and set it down determine the answer that question you have to ask two questions first i was the match made and well that process always result in as my medals of less than zero point six percent and that is the one that is the characteristic sets that's that's the demarcation between the prior art and the patterns and suit that g m c drill prior art matches did not have asinine levels of lesson zero point six percent when in fact we know that eighty we don't have to call it that's the risk and maybe this is an instance in which the batches constructionism pereira it's it's it's a challenging question and i think we struggle with it clearly in our in our markman papers and has had an efficient mixing requirement then yes there that would be the line and you know i think that if you compare example for two example five the only two parameters in those examples that changed were how you add the ph adjusting solution and how you m an example for you add it quickly you know or all at once and you have a patent mix or two that is at a very slow our patents in an example five you can add it in a controlled manner and you have a and that gives you a more efficient mixing product and here i don't think there's any dispute that mylan doesn't have you know actually we do practice i guess i should put it simply we practice example for we add it all at once appellants today and i do think the pharmaceutical batches of this idea of consistency across all the old prior art and all the future batches to be made does introduce an element of uncertainty  irreconcilable with how do you keep that you know parity between analyzing invalidity under with the want to unseal bar and infringement particularly when you know g m c readily acknowledges it took them twenty five batches before they even recognized that they had an invention here so is it twenty five patches the first twelve batches they sold all had less than zero point six percent asinine under the old process it's a it's a it's a conundrum and certainly i think we have  was issued which was post our briefing on you know in the district court and share originally in the initial briefing there is a zone of uncertainty about what do you actually know as a as a person ordinary skill in the art and more importantly as an as a company who wants to make this pharmaceutical batches construction of the district court adopted we took the specifications argument and then we thought that there was an innocent basis that was missing and did add an extra component that had to be bias and compounding process in the district court adopted and we believe that that because it also includes various embodiments that that biocide has said compounding process must be efficiently mixing and when we got into summary judgment briefing the district court then ruled for the first time and did some derivative claim construction and found that th  future badges in the place that last sentence on one or the far right well it's a representative patch but it's also that all that is under have to be less than zero point six percent in the in the final cause of the pla about that trees that are produced by this process and it if it is one representative batch which is what the district court found in the mylan case is sufficient we would we would argue at least we do argue that that one representative batch is representative of our entire asked by specification of zero to one percent and that clearly if you practice inefficient mixing with the patent teaches you is that you will have a batch that go greater than your zero point six percent it might take twenty six of your eighty seven lots or twenty seven or twenty nine but you will get there is a very high percentage of prior art is that had less than zero point six percent at or below zero point six percent as nine so it isn't representative it's representative of the entirety of what mylan will make and to determine that inquiry you have to look at the process by which milan makes it and mylan clearly dumps in all the page adjusti so your honor those are the reasons why we do believe that it's in there is no way to untangle the problem from the patent itself as far as as far as that is concerned the other point i did wan prior art forward in preempting and that petition made it quite clear their invention was the process by which the product was made and for that reason we also think the seventy seven patent is has an official mixing component to it you problem that you have if you have to look into and where there's infringement and future branches that are produced i mean wouldn't a more reasonable construction of matches to mean that the has to be represented in the batch and not that you have to look to future batches to see if there is infringement first of all your honor i don't believe the claim one of the seventy seven require sufficient mixing the product claim understood was issued by the patent office is a product claim the reasons from allowance from the examiner it was a patent claim the prior art that was being distinguished over was a product the tovey a p i and we were required to add a specific limitation based having a basis and that distinguished i understand seem to me to create an attention on definiteness problem i think which one would avoid if you gave the representative batch instruction to the us i think your honor pharmaceutical batches requires either a representative  are you look at all batches made by a compound process i don't think you have an issue about some future thirty one thirty eight back i can tell counsel searching puts a product on the table i can measure that product and  can get an asinine value if that asinine value is below zero point six that product the fringes and it meets the other limitations of claim one of the seven to seven that infringes if they make a second batch under the same process i can look at that i can measure that if as an asinine below a maximum zero point six it to enfranchise every batch infringers as long as you keep making under the same process and you keep having an asinine below point six i will agree that with respect to the three four three patent which is a product by process clay in that and you do need efficient mixing and then if you meet the limitations of official mixing so what happens when your twenty first batch that you are perfect and there's evidence in this case that my lad they made a first batch to see me and zero nine zero one it had a one point three three asinine level they said it was not representative they went back they improved actually called it better stirring efficient stirring and that had a an asinine value of zero point three it was your point to and we know and the court found judge said he found that that was representative and they found that sex was the us that is your position in the in the example thirty one ventures that you can tell where the vaccine cringes until you produce all thirty one batches and see that they're all you look at that one back and you look for it representative qualities with respect to ask nine loves and purity six are if you make more than one batch the claim as to find you have to look at all but you can do it you can measure so you know you can't tell whether sixteen infringes until you produce all thirty one badges but that's the definition of pharmaceutical back to us all back just agree with that  papers but the argument is that there was a toby reference which was being cited it was a p i it was a product and that when that the product was not differential from the pod acct a product of the seven to seven and when you looked at the product of the seven to seven including a base and other properties it was different and the prior art at the time was the eighty nine batches all boxers and that was distinguishable again by the seven to se and the district court in in illinois and the district court in jersey have both found that the pharmaceutical batches of the seven to seven was just too a product and as we found in illinois that my money infringes used more efficient mixing than example for she actually determined that mylan did not practice example for it was more in fashion and we believe that to be a finding of fact she ignored material facts or whether or not that same sixteenth batch is invalidating for the on sale bar and that's the problem with this case of this construction really raises is that you're applying a standard for a hypothetical number of batches that are created in the future but you already have the data according to t m p you can't retroactively apply that same analysis so for the representative batch t m c made batches that they called representative put them on stability and later sold them those two of those matches had asinine levels of less than zero point six percent if representative you just knew one representative batch that that would be representative of all batches to be made you need to look at the process by which it's made in order to determine whether or not you have an improved original angiomax and and judge they need to find that my lens mixing process is more inefficient than example for and she looked at the two criteria that were highlighted between example for example piven found me that finding an example too has differences in volumes between example two an example pour in still calls inefficient mixing so to the extent the patent teaches what is an efficient mixing it teaches what milans process is and for that reason we think