the drug undergone extensive f d a proceedings and they an extension was warranted and we take that into consideration as we read the after extension then one fifty six would looking more like one fifty four where you don't ask anything about a particular kind of pen you just ask about the delay that's involved here the provision that we're that drives this case one fifty six eighty five says it's not enough that that you've gone through this administrative process is not enough that there's been the way and it's not enough that your drugs patentable all those things are necessary but in order to qualify for pattern extension you've got to show something more on top of all of that what you've got to show is this particular drug you've got here has not previously been true for marketing using the definition of a fairly broad definition of product drug problem in the sta so congress set up and was trying to distinguish between cases that warrants that kind of extension in case they don't know what i think we can tell from the text of the statute we treat this is an open question for them is that congress regarded the variations involved in salts nesters as not being significant enough to warrant a pattern extension and i think the primary virtue of the approach this court took in pfizer that the f d a has taken p t o is tak at that point you're willing this provision down to almost nothing but if we look at the government policy on this the p p o s been all over the place now where we could draw any straight line on what the indistinguishable from the facts here in black so here's position was virtually indistinguishable from its position here in this court held that a patent term extension is permissible in that and its constituent terms including active ingredient so in that case the whole speech was over i had interpret that phrase now in that case what that each sober esther of a therapeutic agent is a unique active drug free now just one procedural point i want to raise just this morning and notice that the joint appendix although we had cited these two fed rate notices and we had stated that portion of the appendix material that included them i notice that the joint appendix did not include the actual rate notices and you know we were moving on an fact it says the commissioner however suggests that congress are fully and awkwardly selected this combination of terms intending something other than their combined common and ordinary meanings this approach is unpersuasive because it simply overlooks the legal consequences that were nearly attaches whenever statutory language has a clear and plain meaning instead a commissioner simply ignores the plain meaning of these terms in our minds as a totally unrelated question that the court said that it's not saying that it's undisputed how you should construe the term active ingredient in the statute in one fifty six ask it's just saying that you know under the  was that you know actual compounds in the set of patents and i don't think the p t o even disputes that using an active ingredient as is used outside of one fifty six f when the active ingredient in so even on that one point we're not really any different than the situation in blacks  clear that the chording plaxo was thinking of this whole idea that the context that the including any salt or esther of the active ingredient language it was speaking of the p t o s argument that that made a difference that that meant active ingredient should have a different definition at one fifty six ad on peach three ninety five it says that the terms should be given their combined that common in ordinary beads in other words just put the you know the individual point meetings together and what you have is the dean of the full statutory phrase on page three hundred eighty nine iraq's the coup or said as we have already primary case relied on by the p t o for this point this was a situation where this court or in a prior cases they considered whether certain assessments impact assessments i believe whether they violated the equal protection and found in the prior case at the end i think at some point maybe in that grounds for appeal it wasn't poorly clear to me that some point somebody had all that the challenger had also suggested court said in you know electric was you know look we can't assume that the poor mean yankee somehow dealt with this direct taxes you admit didn't say word one about it in its opinion yet maybe day she was lurking there it being mentioned at some point but that the deals with the equal protection clause doesn't say anything about the direct tax issue so we can't read this prior to him in meaning eighty to somehow like it i mean it's not like there's some whole other issue that the court in black so used to to reach its ruling that the patent term extension is permissible didn't even discuss sort of the language academic reading including any sulf the pfizer court was thinking about black so but certainly there are other explanations to this than that then the pfizer report thinking that klaxon didn't address the issue that's on the table here he does speak about the actual languages that the rights derive from any patent and leaving a few words shall be limited to any use approved for the product and as a consequence and i think this is the overwhelming sort of background assumption of or to determine the scope of rights derived you have to figure what product you're talking about and that's i take it to be the reason why this court in fines or went on to get such considerable lengths in figure out what the product any soldier esther as provided by our section one fifty six f the extension is not limited to the best way salt and water what the court understood i think correct is that in it you have to know what product you're talking about to figure out what rights are being extended in ingredient and the holding that actually reading is more it takes considerably more effort to read glaxo and find the square holding on the meaning of actually read when you find yourself going back and looking at thirty year old federal register notices to try