a basis for a claim construction argument not so much like a basis for an argument that a factual determination under the unchallenged claim construction  it can go only one way so can you can you address that yes thank your honor and to be clear we are we are not making a claim construction argument here we  parties to mean approximately and the court purported to attempt a part of that construction implying that construction of course all relevant evidence ought to be used by the court in determining whether nine meets the limitation of about six dollars to eight dollars and so this evidence is is evidence that's relevant to whether the claim can extend to nine because of course the claim can't extend eight dollars than any camp extent of nine so it is a time to get but to get to the point of clear error you have to get beyond saying that this would be relevant right but you have to get to the point that allows this court to say that the bottom line finding of fact the application of the construction to the evidence is clearly erroneous taking into fact is physiologically compatible which was the basis for the district court's ruling there was a range of so called oz molalla that was specifically identified in the may be only a claim construction argument and talk about the cohesive decision and the question of how the court is posed to address the claim limitation about and if i understand correctly from the cohesive decision you have to focus here on the upper limit which would be and talk about what the purpose of the upper limit is as opposed to the broader question of what the purpose of the invention is or the claim limitation is and in reading the record here i don't really see either expert addressed the question of why there is a limit the claim that the upper limit was part of the originally filed claims the specification discloses that there are now or were or broader numerical ranges that were considered to be part of the invention and the par expert didn't choose to really talk about the numbers at all just talked about the function of physiological compatibility it was dr who was hospitalized either he did not discuss the reason why eight was chosen that's correct or on a he he discussed what the word about does to a numerical range of about six dollars to eight dollars and his testimony was that that is something which serves to distinguish as you're looking at the claim the numerical range that's written down in the claim versus other numbers that are not literally within six dollars and eight dollars and how far does the word about go to one skilled in the art or how does one skilled in the art look at the word about and applying that to an accused product and could we maybe since we're we have a limited time unless one of my colleagues has further questions about this issue i want to bring you to the nd issue and that is whether the and is infringing and let's assume that we reject your contention that the and i didn't set an upper limit is the fact that the and it didn't seem to set a lower limit that metals therefore the and that doesn't answer the infringement question and the glaxo standard what is the product that high spirit is likely to sell is the standard the court should apply here and the evidence was the only evidence of what prosperity is likely to sell was the exhibit batches that dr gullible examined and did his calculations  theory is but i'm asking you to assume that by referencing this industry standard the and does set an upper limit for  does set a lower limit point one and i'm asking you is the failure to see to set a lower limit significant for purposes of determining imprints meant  for clarifying let me let me try again the claim which has a lower limit and an upper limit is a claim to a transition metal complex inc agent if it's a component in the pro metals itself if in this case parking citric acid and for purposes of appeal we're not contesting that there they're going to argue citric acid as the amount of citric acid and so there is within the clay if rather is the fact that there is no specification for the amount of citric acid that is in the product at the transition bottle complex an agent that that inevitably to the glaxo standard that the court must examine what is the product that high spirit is likely to set it has not specified the amount of transition that is in its product and  therefore dr gulf will examine the actual batches examine the product that's how spirit is likely to sell and dr tossed who was the par expert admitted that he saw no evidence that the actual hospital product contains anywhere near the level of metals that would be required to support his calculations question that i was asking about this about this st issue and the cohesive case as i understand the color he's of case that would require an examination of the purpose of the eight in the limited the upper limitation of eight and that in fact we have a record here in which neither expert nor the district court asked what the purpose of the eight limitation is and related that to the question of nine falling within the about range to your expert address the reason for the upper limit of eight that's not the question i'm asking he did address the purpose of the about limitations but as i understand the culture he says case it requires that you address the purpose of the upper limit eight and i don't see that your expert address that question tell me why i'm wrong about that i think i think that that's implicit in this discussion about the fact that you're adding it on top of the other ingredients of the formulation to result in a physiologically acceptable tennesse there's another important factor in the cohesive analysis there are two things the court considered which was the purpose and the critic tally and ther was a cohesive they compared the limitation about thirty and that was critical in getting past prior art discussed in the specification that was around twenty and they said well below twenty three point something or other you don't get the function so it was critical the district court addressed the critics ality here and that the committee regulating agent is not critical the district court sat through four days of trial on invalidity a challenge by how spir and heard the inventors talk about all they had to do to solve the longstanding decades old problem of instability of liquid formulations of about an african and they did it by balancing things that weren't the tenacity regulating of getting off the point that i'm asking about and that is the question of whether there is any testimony as to the purpose of the upper limit and what i hear you say is that there is no it's intended to to encompass two factors the addition of additional ingredients and the fact that you can have different in a city regulating agent with different like you or weights and so i think that is i think that is th purpose for the upper limit and this and the specification itself provides the purpose for the element and i think given that combined with the finding on lack of cr the challenge that this is this is just trying to can i ask what may be a different question a variation of the question or the same question i'm not sure that at least implicit maybe even explicit i don't know in  if you have more of the operations that explode or vice versa is there something like that that is going on in your experts explanation of function so he explained it and it was the vice versa if you get too low of time the city yourself explode if you get too high they shrink and when you put other ingredients then before you put in the tenacity regulating agent those other ingredients increase the tennis adhesive the more other ingredients you put in then then you're going to just your tenacity regulating agent accordingly and so and so that is the purpose of the range is to provide a physiologically acceptable tenacity and it's important here i want to emphasize the court's finding a critic califia however because that becomes very important you don't want to penalize the patentee or allow or  with respect to the least important limitations and here there was an extensive record on the other limitations being critical and this one not being critical that's fine because i think the question away if that's not the question the question is about the eight limitations not about whether this particular overall claim limitation is important or on important and so i don't see that there's any testimony about whether the eight limitation is critical or not critical in terms of the just leave regulating  the limitation is discussed by your expert i don't see it am i missing something he talked about that he talked about the entirety of the range he talked about the entirety of the range  in his testimony of what the function of the about six to eight the numeric the entirety of the numerical length range i do not interpret cohesive as requiring a specific specific testimony regarding  testified that as you go up there's not it's not like going off the deep end of a pool with a gradual change in tennis city until you get to a point where you're too high and so he said it's a gradual effect and that the eight was he didn't he didn't call out the number eight specifically but that's because there is no criticality to that number and his testimony clearly establishes that point and gives and makes the district courts fact finding clearly supportable under the clear gradient that some of the cells will be more sensitive to than others and also the times exposure will play a role so we use the range typically cited in these references and as the range we shoot for developing isotonic formulations and i'm sorry i was going to change the subject to the other the other issue that was raised by mr o r o if i could so as i understand the issue there and let's say by assumption says we are not going to go above thirty percent of these particular kinds of metal impurities and so we can go up to thirty percent and if we can go up to thirty percent i think your expert said we can then quickly calculate how much of the citric acid will act as a chill ating agent for those and that gives you just put you into the claimed range of the chill ating age and i understood that mr melor o's response to that was that the glaxo decision says don't look at what the and permits you to do what the product is likely to be and the evidence is that what the product is likely to have is in the this court held as a matter of law that a defendant and a product specification that had a range of i think less than point six infringed as a matter of law a claim requiring less than point twenty five dollars of a particular thing and said that that that you you did not get to come in and tried to show a likelihood scenario when your and the request encompassed the claimed range and that's and that's precisely what we have here and in fact in this case we argued we tried to get the very samples that the hospital tested came into court and just and explicitly argued said no being is all you need to look at in this case you do not need to look at the actual batches you do not need testing from these batches and the court the court made a fact finding i question that i have also is are we under some nobody in here in terms of the and itself and nobody and does seem to be different in the sense that the limitation is less than a certain amount whereas this patent has ranged between x and y and even accepting your argument that the industry standard translates into the upper range  lower range of the path can you address that being had a broad range and the pattern had a narrower subset of that here we have the same thing the the and it has a range of zero to thirty percent we have a  asking about sanofi and indorse is that where the and does not reveal whether the product will in french glaxo is the standard and here the ended does not it's not found in the and nor even using metals as a proxy would one find that there is a revelation in the end that the product will infringe there's  claim and yet the all the the the and this says is that there were tests done that show a very low levels and therefore there's no need to test the product as to release that commercial factors are made because these levels are so low that the product that high spirit is likely to sell will not be subject to any drug product testing so here percent is it fair for me to assume the lower limit of zero there are the metals in the hospital or a product and so i don't think it's fair to assume a lower lower level  zero there there were metals that we're seeing there are there are metals that will always be in the product and so there and there was no lower limit established for what they could go away so i think factually  zero would not be an appropriate lower limit and then the alternative is that it's to offer limited thirty then do you really have to be a range in the or is it sufficient at the end i would allow some amount of