flaws which i will address starting with the packaged issue dependent real home real problem the real problem you have right is that negative limitation because that's what that's that's where non infringement that position really turns right that's correct your honor and it is only through the construction  yes i do believe that there are things about the negative limitation that do survive as a matter of fact the district court characterize it as an exclusion and i accessory function which is the source of the so called exclusion may be expressed in several ways that it cites as an example all herpesvirus generally so that from the summary of an invention cites to herpes viruses but you added the word all and i don't see that in and the specification it seems to me that it is one thing to say that herpes virus is generally can be used but where there's an express exclusion of one type of her chippies virus h s v one it seems to me that that's not inconsistent with saying the herpes virus is generally can be subject to the exclusion and accepting that is true that in the preferred embodiment the inventor indeed should have specified what it what he considers the most efficient way of doing that and in clearly his given guidance that you should choir negative limitations whether there was a good reason for saying it or not right well i think that is the pattern in my view your honor doesn't say don't use it it says use these other things and i believe there's a difference and the difference is important because of the best move requirement if the inventor was required you know if you inventor thought that it's just the one was not an optimal way of practicing and that's the definition of accessory functions so as i read it the definition itself is excluding herpes simplex virus type one rather than it being simply a statement that somewhere along the line in the specification that it doesn't work as well or should be avoided does that create a further problem for you in that it's definitional in nature it would if it were it has a definition and then it's followed by examples that can be used and i don't think looking at that paragraph that it would be fair to say that the examples are the sole way  functions can be derived and i'm saying that that's similar to other programs where the definition followed by examples so that inconsistent with the position you took in the  prosecution history as i read the prosecution history that was the statement that the definition of accessory functions this is by your prosecuting counsel the definition of accessory it said it only includes or excludes certainly it does include those that but for that argument to be logically consistent it would seem to me you have to be saying it includes x y but not it's not just he but then you would have to be arguing that includes does not exclude g and yet the very language six includes x and y but not g seems to me to foreclose the argument that includes allows you to change the back if you understand the point but i do understand the point and i  height joint to go back to your predicate argument which is that you never even get there because it's not a very and yes i would like to thank you your honor and i'd like to start with package limitations of the claim and putting it into the term in the preamble to believe in their essential either d this or court ends up describing claim one as a  disappears as time goes on and it it really doesn't make sense that it doesn't even show up in the claims i would you know in terms of that it that the concept that disappears i think the big variance phrase appears throughout the specification throughout the prosecution's history so i you know i i take it it doesn't it doesn't appear much after the st half of the so i think it does it does appear throughout the patent and you know i don't think there's any reason why that's what would override the eight or nine independent ways that the the intrinsic evidence shows that it means a the variance right well you are i i would say this we don't need we don't need to decide that because well i did but i is that is that where is that what you think is the correct interpretation it your understanding from that example at that that was summarized in table one that the r a a the referred to there necessarily has to be very honest because they're referring to the production of very ons in those three different experiments yes your honor that is that is the position and i think that's supported by specification and i think when when a v is used by itself and referring to ok so i your honor i would i would then want to talk a little bit about the edwards case in the advanced fiber case because what i've heard from what i've seen in the briefing from so began the construction of one term and that term under philips naturally included another term and then when the court addressed that secondary term of the court and in edwards went right to the definition so you know edwards is directly on point in terms of using an express definition to define a term that wasn't actually used in the client and advance fibers very similar in fact in the edwards case there was there were several steps the court there was looking at the term graft in the claim language which would bitch the court under philip said required enter a logical leaps that the district court took here there was no there was no improper logical leaps whatsoever in fact it was just a one step out act and call it a derivative claim construction because that's the term that this court used in advance fi or so both those cases show that the term that's being construed under philips or being and being construed using express definitions does not have to actually appear and in the terms of that but is a situation we have in sure and i refer back to the what the district court found and this was a factual finding after addressing the extrinsic evidence including expert expert testimony from both parties and the court found that the use of packaged means that genetic material the r a v is packaged into a very on so the answer to your question has already been answered by the district court and that's reviewed only at his st deposition so we have a situation here where both the experts agree that packaged indicated does indicate that in fact the the claims gentlemen is a very i and the court found that so that is that little confused about the relationship between the two issues in this case i understand that even if we affirm on the st issues the very on issue but to reverse to reverse on the st issue and affirm on the h s v one issue what would be the outcome that setting so as i understand the question your honor if you w but i would say it doesn't need to be sent back because the exception would still apply so i think section would be applied the question is what would be the implications of that for the case in other words is there any way that  medicine nova could still win the case even if hampered by the definitional construction given to it just the one excluded and you're saying no i'm saying no but i  court's construction you know if that definition doesn't apply or the court doesn't apply that definition you know that then there is an issue of you know that then there's a problem i would say an incorrect reading because then the definition arguably could be the exclusion could arguably arguably be read out of the climate or so i an idea is there any place is there any place where excess three functions i mean we have to get to but i don't see accessory function used anywhere else in other words is that why that argument is proceeded this way you have to get to the veyron before you can get to the accessory function i mean  know i guess in terms of that question you know we didn't work backwards from from our results here but what the your correct in terms of that is how the definitional exclusion for you get to the very o definition which requires accessory functions and then you get to accessory function definition which has the exclusion if the question is independent of the st definition the definition of are a very on is there an argument that it next accessory functions should be read into that claim i don't know that either party has gone that direction and then perhaps there could be a an argument to be made that it does i don't know that i know the answer to that now construction but i didn't mention yet was the extrinsic evidence and i think there are three different pieces of extra sick evidence that the courts found that are or that are can only be reviewed by clear error that that found and that's it appendix thirty five to thirty six and it's supported by both experts and members you may recall the expert dr berger who's the expert for medicine of tried to change his testimony twice so he was  to construe the term at issue what it did was take a product claim that claim to stock a virus and turn it into a product by process claim a