two terms that issue here mixture and compress black i'll start with a mixture it is common ground that sometimes mixtures are homogeneous and sometimes there are not may not learn can so that we know what our starting point  here do you agree that the term matrix is used in the specifications of the three patent means homogeneous composition so i'm not contesting tha it does we're not appealing that issue i don't agree with it but for purposes of this appeal it is understood that matrix is a homogeneous composition yes ok all right with respect to mixtures as i say they're not inherently homogeneous you have to make them homogeneous you've got to mix them blend them heat them you've got to process them in some way depending on the kind of ingredients that you're working with to create a homogeneous mixture it takes work and if you don't do that the mixture is not going to be homogeneous that's true in ordinary life that's true in the pharmaceutical arts and we use chocolate chip ice cream as example but you know take your pick there are lots of others they're all mixtures but they're not necessarily homogeneous the binding or definitive mixture means the same thing as matrix in the specifications of these patents and then it's homogeneous then right yes but that it does not and i'll get to that in just a nd but that's their basic argument their central argument is that mixture means the same thing as matrix this case it seemed awfully familiar to me and it turns out that i was on the panel that heard you sure this one the prior decision in this case and indeed the gillie with almost identical special occasion and everything seems to be pretty much the same except that you've taken a couple words and have now come to us with a different definition for just the word but there's nothing that has changed that i can see that's relevant change in special education looking at the same course but over different color we are looking at we're looking at different  why they're importantly different look at these in this pattern it is teaching that you can either have homo genius score or not homogeneous scores in the st case the claimed term that was at issue w compressed plan were not at issue in that st place case and as was previously said the argument is well they're they're interchangeable but they are not the claims that appear to be the same it's just that you mixtures and mixtures the plain ordinary meaning of the word mixture is clues both homogeneous compositions and non homogeneous competitions and you can see the pandas teaching that you can see that most clearly from the examples some of these examples specify mixing the home which in eighty at intermediate steps but not at the final step example two is a good illustration it calls for mixing two complete intermediate step but then at the end you jump in double the amount of ingredients or just mix it for five minutes it doesn't specify mixing the homogeneously at that final step and this example is teaching that  just silence that is clear teaching that the final mixture does not have to be homo genius and if there was any doubt about that just look at example c example c does specify that you mixed step back for just a nd what's the question here the question is not whether the patent is affirmatively teaching that mixtures don't have to be homogeneous that's the plain in ordinary meaning of the term they can either be homogeneous or not homogeneous pendants certainly teaches that the mixtures don't have to be homogeneous but that's not the question the question under thorn are is whether there's lexicography or disclaimer that limits the plain in ordinary meaning to homogeneous mixtures the answer is no we don't have that here and frankly to the extent there is lexicographically it confirms plain and ordinary meaning there is an express definition of mixture in the prosecution history it's that wicca pedia definition where the patentee wrote in chemistry quote a mixture is a material made up or more different substances which are mixed full stop that's redefines the term or disavows its full scope that didn't happen here now the argument was well mixture means the same thing as bait tricks make tricks is a homogeneous therefore mixture is homogeneous but that's the name of the matrix that what we have here is its composition not at all the pet st of all the patent teaches if you look at the abstract it talks about important or essential to the functioning of this invention what's essential is having these make trix forming except the ants in there and they were the course will include them but they don't the whole court does not to consist of a matrix and that these claims terms are fundamentally different and bear this in mind matrix and mixture are not interchangeable two quick points one by definition a mixture has to have two or more ingredients that's the definition of a mixture but in the patent the pattern pieces that a matrix can be just a single ingredient in any example eleven for example the inner matrix is just the one ingredient so right off the bat matrix is different from mixture those are not interchangeable and more fundamentally the patents teach that you can start from a mixture to create a matrix it teaches various ways of doing it needing mixing heating stirring but by definition if you have to manipulate a mixture to make a matrix mixture matrix can't mean the same thing that starting mixture is not a matrix in till you make it into a matrix those terms are not interchangeable and as i say remember the patent teaches that you can add functional  that you're not creating a matrix at all you're creating a mixture which is not necessarily homogeneous played an ordinary meaning includes both homogeneous and not homogeneous there's no dyke began includes the most important contextual indications of what mixture means in the context of these claims in this patent with this prosecution history  the it addition to the point that judge dyke brought out in the colloquy with my friend i would point the court to see interchangeable use of matrix and mixture in column for you in the paragraph that begins at matrix and then down here after some further explanation refers back to it and says that the granulation can be done by any process which retains the dispersion and matrix structure of a starting next year and there are two important points about that one is that this is both a matrix and a mixture but nd and really more importantly and this is the key point that i hope the court will take from this and another example that i'll give that is just not the case where the specification means homogeneity it says how much an eighty quite to the contrary here's a good example of where the specification says up above just matrix and it refers back to it as having a homogeneous dispersion much later because it's understood that that term  active ingredient are mixed ok what happens you see in the next paragraph the compression of the mixture yields a macroscopically homogeneous structure in all its volume namely a matrix so here again the same two points you see the mixture and the matrix being used interchangeably and you also see that the this mixture even though in the st quote that i read it doesn't say how long it's mixed for and does not specifically say it is mixed to  with how the examiner understood the understood the claims we've pointed the court to the statement three hundred and seventy seven scene of the appendix i which the examiner clearly understood that the core the tablet i'm sorry this statement by the examiner makes pretty clear that the examiner understood the applicant to be advocating for a tablet core that was homogeneous and that of course is consistent with the position that the point is took in the prior case and this is summarized at footnote ten of the district court's opinion the i'm referring back to the claim construction hearing that the court held in the prior case the plaintiffs position as reflected in the slides that it put up in that case was that the corps was macroscopically homogeneous not just the structure i understand that my friend on the other side says that that's not what the point but respectfully disagree with that and i think that the the most natural reading of that part of the prosecution history is the one that the examiner had so even if it didn't matter that to switch to compressed blend for a moment now i understand that my friends on the other side have said at page thirty six of their brief that that the mixed meaning of mixture in the meaning of blend are the same and i think that the  definitions that we have given for a blend at pages fifty four to fifty five of our brief are really quite powerful evidence that if that's right then we win as a matter of and ordinary meaning because the plain ordinary meaning of compressed land is a uniform combination of two or more materials another another example is a mixture so combined as to render the parts indistinguishable from one another and the point is really have no response to that ordinary meaning of blend really all they've come back with is example one but i want to point the court st to the two things in the specification that  d the place of the specification that supports both parts of compressed blend so during the application process when the amended these claims to add the term compressed bland they pointed to writ a homogeneous powder dispersion is obtained and then the powder mixture is subject to compression so it's quite clear that if the blend results in a homogeneous composition and that that mixture is subjected to compression so the only place where you have compressed blend in this space you have compression of a blend in the specification we know that it is a homogeneous blend being compressed now i understand that there are some other places in the specification that support individual terms we think for example that the part in column five that i spent some time on before which is expressly cited as support for compression there too it's the compression of the  homogeneous structure in all its volume so we think these are really quite powerful points on our side for compressed land and my friends on the other side just point to example one is really the only thing they do with compressed blend in the briefing and they say well it doesn't say homogeneous in the final step but what it does say is after a final blending tablets of around three hundred dollars milligrams of unitary weight are generated this is column fourteen think that it's not necessary to say homogeneous here it's a final blending that produces a homogeneous composition and as i say we think that if the other side wants to link the two then that's fine because the meaning of blend clearly supports our our interpretation which is also consistent of consistent with the now accepted construction of the term matrix but even if they were of mixture the plane in ordinary meaning a mixture clearly obviously includes both homogeneous and non homogeneous mixtures and in order to to limit the plane in ordinary meaning you have to have disclaimer which which is not here my friend went to the detail disclosure of the invention what he forgot to mention was that detail disclosure of the invention is an example it's an embodiment that that  for example just because every single embodiment happens to pertain to one portion or one part of a common ordinary meaning that does not limit the plain in ordinary meaning of the term same with respect to the ts to a disclaimer point the st point the nd with respect to the statements of the examiner we all know that statements of the examiner are not controlling examiner mixture does not have layers that's why they were distinguishing the prior art because it was or wasn't homogeneous then with respect to again the definitions are not controlling there are many other diff dictionary definitions some of which we include in our papers but all you have to do is look at the example that he cited my friend cited examples three example free necessarily homogeneous you have to make them homogeneous that's exactly what's taught in the example that that is describing to here in that particular example you blended it to be common homogeneous but that's just an example if we're talking about what the plane in ordinary meaning of land me the patent is quite clearly teaching that land is not necessarily homogeneous you have to make it hom genius and there's nothing here in this path that limits either compressed land or makes your just homogeneous plans just homogeneous mixtures because they're playing an ordinary meaning and compass both