and not infringement and then i reserve the remainder of my time to respond to f n c's arguments the district court err in failing to construe f m c s patton claims to cover only compositions where parasitic acid is the sole anti microbial agent because labs accuse product inspectors which is used in beef and chicken processing plants to kill bacteria as thr it all goes off in a different direction wouldn't anyone reading the record recognize well there's been a correction there's no disclaimer here they've accepted the correction of the examiner well of it two responses first of all understand that the record shows that after the examiners statement f m c went on to say later on that there is no prior are showing that per page ninety eight three one of the appendix ninety three one where f m c states there is no prior art reference teaching or suggesting contacting file directly with parasitic ass but it doesn't say it doesn't repeat the s think there's just one we can also not clear and unmistakable is the way that it has to be disclaimed when you've got this correction intervening which is judge dyke and i seem to see is not and then at first examiner rejected the claims over greenlee because greenlee was a mixture i but then after there was a discussion with the patentee it became clear to the examiner that h the prosecution history as well as the examples in the specification it becomes clear that percy to gas it is the soul and i microbial agent i think you had a right to rely on those statement application and show them the prosecution history would get that same and i believe that any reasonable competitor looking at this prosecution history as well as the specification would conclude that percy a casket was the sole and i m agent yes the only other point i wanted to make was that f m c has not appealed the verdict that his product infringes eco apps patents and f m c concedes that legal lab is entitled to a permanent if it please the court going first to you consisting essentially of the argument i think your owners have made the point that i had intended to make there certainly was an original representation but did the there are additions the construction given by the court ecolab argue that these additional anti microbial that they say that were in their product the sides are acetic acid didn't make a material difference and the jury specifically rejected that when finding infringement giving the normal construction to consisting essentially zero and that has not been appealed by equal and so the issue that they've appealed is the claims construction consisting essentially zero based upon the clear and unmistakable disavowal which they claim exist and our position is is essentially what your honour's mention there was an initial statement in a rony s as a matter of law statement by the prosecuting attorney the examiner immediately clearly in on mistakenly on the record said that it was wrong in fact what the examiner said is in response to that contention that consisting centrally of men sole anti microbial being purposely to gas at the examiner said quote in response to this contention of applicants it should be noted that the terminology consisting essentially does not mean that applicant sanitizing solution is consisted soley of a person to guess its solution that's at appendix a nine eight one six so the examiner immediately said no no that's not what your claims mean and the other significant thing in that quote is the fact that what the examiner basically said is the current interpretation that is being sought by ecolab is wrong because the examiner specifically said no the claim is not limited to percy tick acid as the sole anti microbial and after that initial erroneous statement and correction by the examiner the applicant proceeded to acquiesce in that and continued the arguments on entirely different grounds did not for example men the claims to include consisting of which he could have done if he intended to do what eagle absented and then went on to distinguish over the prior art based on in the case of primly which was mentioned by council for equal ad by pointing to the minimum amount of percy tick acid required in the solution and then argue that the prior art we did not teach direct application to meet without harming it which of course was a limitation in the client so there was an initial illegal erroneous argument immediately corrected by the patent examiner agreed to by the applicant never again repeated and we do not believe that any competitor looking at the entire prosecution history as opposed to simply the scraps that have been referred to a one time  opus was distinguished on the grounds that doesn't relate to direct application the percy to gas and to meat and does not teach that if you applied per se to guess it to meet you would not only be able to sanitize it but yes yes and also had a number of them one aspect to correct but olds and the specific argument with regard to opus after the correction by the examiner had to do with no harm to the meat by the percy to gas it being applied directly to meat which folks did not do that's what the subsequent prosecution term is their error and the judge declining to construe insisting essentially no your honor i don't believe so because he construed it in the manner that consisting essentially of his always construed and determined there was no dedication or until clear unmistakable disclaimer and therefore insisting essentially of had the same meaning as it always as in all the text books that that is anticipated by the labadee article and the single sentence in the summary of laugh at the eight six one four really sums up the anticipation seven so that one sentence as equal lab chose to draft the claims is a full anticipation of every feature of the coin if you assume of course that the court properly construed the seven to nine pat claim seven to exclude poker but even with that exclusion labadee specifically teaches every aspect of the claim because as equal as chose to draft a claim there is no maximum parts per million and there is an argument by eagle lab that the that labadee has to cut away the meat in order to make it sterile that's not true there's at least three or four specific instances where labadee talks about how the surfaces are completely decontaminated talks about the contamination of muscle surfaces it talks about superficial decontamination so you wouldn't you would expect that in any event because a person that was known to be a very powerful anti microbial turning over to the seven to nine claims seven in this instance obvious over the prior art the if we accept the interpretation by the district that poultry is excluded from claim set and then all we really have by way of differing over f m c is only six seven two patent is the application of the process that was taught in seven sees me six seven six four poultry two beef we have reducing the same problem microorganism the bacterium we have the same process that is dipping or spraying being used we have the same anti microbial being used we get the same predictable result there is nothing unexpected here and it was very commonplace to apply anti microbial the same antimicro the nine six three pattern is obvious over the six seven six the f m c patent because the sole difference over that is this fifty p s i i limitation the six seven six patent teaches spraying the anti microbial onto the poultry teaches indeed rapid spraying so from that standpoint it does necessarily have a p s i i or a pressure associated with that because it wouldn't leave the spray nozzle so what you have is the six seven six patent teaching spraying at any suitable pressure and what you have is the nine six three claims twenty five to twenty eight sprang at any suitable pressure with a minimum of over fifty p s that nine six three patents advantages to spraying at a higher pressure going into the patent itself is for a mechanical action and for better contact with the surface of the six seven six patent teaches that percy to gas it is a contact herbicide and therefore you have to ensure good contact and if you look at the prior art patents to that we have  you will see that those precise same advantages for higher spray pressures are taught in the prior art for a wide variety of anti microbial not dependent on specific anti microbial so that what you have is the sole difference being higher pressure within a broader even broader range and you have it for the variable images that were known in the prior art and that was it of those wasn't that a jury finding business is to actually companion jury determination regarding the two eight six patent for very same almost identical claims indeed a species within the genus of the nine six three the jury concluded there that there was invalidity for obviously so you have a sit and that's not appealed the other inconsistent version well i don't know if they're inconsistent they certainly are a situation where because there is no appeal ecolab you have a final decision that a species now within the genus of the nine six three is obvious and necessarily therefore the genus is to remember that in the resentment the real question is whether there was evidence to support the jury further into evidence well i agree with that pat aspect of it your honor and we have specifically addressed that in our brief and shown that the soul the soul difference is this fifty i spread that it is being used in the claims that are issued the nine six three claims twenty five twenty eight the higher secondary considerations there were some that were argued we would submit there was no  so we believe that the the court should have granted the j on all else the only other thing i'd like to mention if time permits is the muscle meat interpretation by the cork the poet originally got it right in his interpretation but then it interpreted muscle meat as muscle from animals but excluding poultry we think if you look at the nine six three patent a column three lines sixty six to column four lines twenty four and a column thirteen lines fifty two to sixty two it's very clear that muscle meat was not intended to exclude any species of animal but only relates to claims it relates to course is what the six seven six patent teachers so we believe the court's interpretation was wrong that muscle meat distinguishes between muscle meat and blood and fat and fluids it doesn't distinguish between species if you look at the six nine three and we've appealed the claim interpretation in both the six nine three end point seven seven two nine and six nine to three o much and when you have a seven and a half minutes remaining think your a couple of points on the prosecution history disclaimer argument first of all in the prosecution history after the examiner statement claiming then as a sole it doesn't use the words only but it certainly doesn't indicate that there's any other as it either and then as to the oaks distinction the oaks distinction in the prosecution history was this f m c said it appears most appears to be strongly advocating and teaching the use of mixtures of sides not the use of a single side it wasn't its effect on poultry it was the fact that it was a mixture alone reduced the microbial population in fact both agree that trimming as well as isolation in the various sterile locks wouldn't that be pretty much part of wouldn't that be inherent absolutely me and it didn't work so it is not inherent and it wasn't inherent at the time certainly not at the time of the filing of legal labs patents so there is nothing inherent about it but i think that impact it would it were did what they did in this first step would it would do so microbial population in fact no i mean there's absolutely nothing in lab and a and the experts agree that there was nothing in laminate showing that that first step did where are you reading i'm reading from the appendix page fifty seven seventy eight the collapse expert stated that the portions of the be exposed apparency the gaps that are cut up and removed leaving only a sterile center portion that can be used for testing other way that percy to gas it does not always reduce microbial populations and of course inherent sea assumes that there is nothing written to disclose that it says that necessarily must be so onclude that f m c had met its burden of clear and convincing evidence here based on lab it because of the various distinctions between lab days method and he collapsed muscles and both  experts agreed that the lab date method included the trimming both experts agreed that there was no testing of the piece that was actually removed that was exposed to parasitic acid to see whether there was a micro in mind that there was a lot of evidence from mc's own expert his writings that in america wheels are neither interchangeable nor predictable and the jury just on the basis of his writing you're using thirty thousand parts per million the per cd acid we know percy to gas it works as little at one hundred parts per million so you have a way of one skilled in the art would certainly understand specifically said several times that the surfaces are completely contaminated by purchasing the gas or superficially contamination the contamination of muscle surfaces you don't need to test for that the only reason realty but to remove a small amount surface amount of the meat that was the natured by the very high amount of percy to guess at that to suggest that there was no  religion or money they prove there was no population whatsoever that was the whole purpose of it so whatever was there was going on you'd have to assume there wasn't any in which case you didn't need a lap of it so the point of the fact is that was reducing microbial population to zero it does have a trimmings that but a training step is not excluded by the claim that we're looking at do you agree with that she have to go on parents a year because of the absence of any testing results and superficial decontamination superficial meeting at the surface and there are several but that's the process that labadee utilizes and the test that labadee ran and that is not only test before they cut the meat they did not run tests before they cut the meat but the cutting away of the meat was to remove the d nature and that's not prevented by the language locally so to me to suggest that it thirty thousand parts per million you're not going to get a reduction of microbes when you then your honor i would submit is not really inherent c because of the fact there is no limitation in the claim that excludes as it is literally written and it is literally written as treating the services in decontaminating the services so i would i would