the court there are two independent reasons why far does not infringe ferentz patents first under the proper claim construction cars product does not have a layer of sodium because so fake coding the co second as the end to makes clear part is not spray code instead par with regulates its product and the district courts claim construction was erroneous based on the intrinsic evidence which this court considers to know though the claims require the let me let me just ask you if one accepts the district court's claim construction on coding or lare i understand you do not dispute that your product makes that limitation as so construed that is correct they will because we do not dispute that that there is the independent reason for non infringement the part is not spray could of that i understand that i gallo's declaration showing that the preferred embodiment solved the prior art problem second the patent amendments where the inventors disavowed broader coverage and limited their claims to this preferred embodiment third the photos of the granules in the original specification describing a thin layer of pique the sole fate surrounding the core and forth the examiners reasons for to any objective industry standards that were sufficient to overcome the end of statements instead this court has always required hard evidence like testing parr's process is used whether you think whether you are using wet granulation or spray cody it is undisputed that the same equipment can be used for both typically when a top that configuration is done which is what has been used here it is made to wet granularly the specifications for top spray are w bottoms spray configured with the sprayer at the bottom that configuration is specifically to spray could so that while the same equipment can be used for both typically there are of course outl r you know instances where they are reversed and used for unconventional settings but in the conventional settings which are used top spray is  testimony for the spray coding issue and it's not it's not a credibility issue the issue is one of sufficiency of the evidence you have an expert who not just looked at the and speculated he never conducted any testing or never even compared parts process to any not a single piece of literature over the countless decades of literature that  amassed on spray coding and what brain lation not a single citation to any literature just absolute unmoored speculation and that is insufficient basis under have been cited in this court and it is a constant that the district court help holds when the district court holds that unsubstantiated assertions may tip holding that unsubstantiated assertions do not overcome the end of statements so the district court wrongly found that parse sprague and this court should reverse that determination have objective evidence there is there's not a credibility determination among the experts if you were ignoring that independent objective evidence itself that's your position right that is correct so you say it's i'm more but it was based on that and his description of the process that parg uses heart consistently and several way news's particularly will does that create some sort of evidentiary presumption that that labels properly you see it but i don't think it is and i don't think this case a plot that your situation applies here because here it is not a label this is a very technical term wet granulation that has under been stood for decades to mean a certain technology spray coating is over here as a completely separate technology problem i have with i'm a  job is to look for clear error and what you're saying in this as i understand it is that actually look at the facts from two sophisticated parties to be able sophisticated experts are presenting two different interpretations explanations for why it is the appropriate understanding so i leave you need to dig into a little bit more detail on why you think that the contrary expert testimony is and more because there is not a single objective evidence saying why what he's saying is at all credible with regard to the technology he does not say for example when he says there's a six degree temperature drop therefore it's clearly spray coating watt show only a reference that says that then i might believe you and i might be able to rebut that but simply testifying putting your finger in the wind and saying six degrees means spray coating does not tell me why why not five what about seven there is nothing it's unhinged so getting back to the construction which this court reviews t that that drawing submitted in prosecution did limited the scope of the claims same situation where you have the amendment where the pattern applicants told the patent office that they were claiming this stands for the proposition that when there is a dispute over claim language the district court has a duty to resolve that and simply saying the plain an ordinary meaning applies when it does not resolve that dispute is not sufficient that is we were citing go to micro as an indicator that this smells funny the district court did something wrong because the entire argument at markman was about scope how much peek  sole fake coverage is necessary on the court and the district court refused to address that despite are several please for him to do so but but you acknowledge for example that are two microphones very different because claim destruction is given to the jury and the court doesn't construe the term that that's true and i'm in my rebuttal time so i'd like to just address your question and sit down the problem was not the the rolling claim construction absolutely that is fine under this court's precedent the problem was when we got to trial instead of where philip says you have to look at the intrinsic evidence in order to determine the plain ordinary meaning here the court said you can't shooter revisit this be that's already been resolved assigning a term the plane in ordinary meaning when the scope of that term has had has not been resolved if he did not resolve the dispute and i thank you record and i can take you through that i heard today that we have different intrinsic record evidence that they're relying on quite frankly this amendment issue was appearing for the first time in their great brief in their reply brief it was never argued below it and therefore it should be discounted nevertheless i can address it substantial leap we need to the second thing i'd like to address is that there were two experts preparing one was dr johnson who testif coating the other was dr who gave the plane in the ordinary meaning for the terms coated and coating as the district court permit and that meaning was a layer of substance on the outer surface of another substance and the issue is not quantity it was in the martin hearing but through expert discovery and actually at trial the issue became location where is it it's on the outer surface of the potassium by carbonate core and that's important so let's heat par started with the tao declaration but i'd sort of like to start with the three pieces of evidence that were argued specification in column nine in that column naing lines sixty two to sixty seven where there is language that talks about sprayed very evenly there's never been any effort by part to explain how sprayed very evenly equates to substantially evenly surrounding the core in fact this  whole dissertation in column nine is it's important for the court to understand it's just describing what the improvements were to the process when they moved to spray coating which eliminated the problem of the priority  which hat was lack of homogeneity both in the intermediate products and in the final product and that explained starting at count nine line thirty through thirty eight the problem was the prior art process tao declaration which isn't that the important part about the dollar that correlation is if it's explaining the improvements in the process in response to an obviousness rejection at the patent office but i'll get to that in a minute so let's go back to the granules and dried immediately that's the whole point of the invention you spray it on you get that and even distribution across the particle that and stride rapidly so that you don't have the lottery machine and you got the top spray coming down and the sprays going on all of these bouncing little balls there's no way that this solution is going to hit every single particle the same way and there's no way that you're going to have it substantially evenly surrounding each individual particle so let's turn to the two other pieces of evidence that they rely on one is this the images let's talk about the images the images were originally in the application and the patent office determined that they lacked clarity and and therefore and were going to not of any use and they were removed from the specification so they're not part of the specification but more importantly they lack clarity but secondly the point is the example is not limiting in any way shape or form it's not like the cases where the court has used examples to be limiting for example the medicines of the milan case where there was a question of what efficient mixing meant and the specification there was no ordinary and customary meaning of what efficient mix he meant and efficient mixing meant in the limited that definition of efficient mixing to that particular example that's not the situation here it's just repeatedly throughout the specification about what the purpose of the invention w and quite frankly that's exactly what the dow declaration explained and it starts in paragraph seven he talks about the problems with the prior process that the problems with powdered dosage forms in general  paragraph nine and that you had to have equal particle size distributions and then he goes on in paragraph twelve to talk about the new process that where it's sprayed on to the surface says of the importantly there's nothing in any of this intrinsic evidence that even gets you close to substantially evenly surround surrounding isn't even in the claim language i know there's a recent case that came out of th attacks where the issue was continuity of an extended release coding and in that case there was the language of surrounding in the claims there's none of that language in this case and quite frankly the hard evidence issue there was hard evidence dr davies did testing a porous product dr davies came in and testified that all of the images that he saw of the the particles from pars process had the get in a wet granulation process it confirmed his opinion that the process was spray could let's talk about dr johnson dr johnson has twenty years of experience with spraying he looked at the executed bats records which we let let's not let's not muddy the water here we all agree the end is the best evidence of what the product is that likely product that is going to be sold but let's take a look at what those specification would lead to infringement during the course of discovery they changed the specification altered it such that they could never infringe on the patent and the court found that they were legally obligated to in detail at the executed batch records he went by process parameter by process parameter here valuated done he looked at each of them individually and then in the totality he said looking at this process as a whole based on all these process parameters in my mind there's no question in its break hooding he was cross examined on it he was cross examined about his relative term obviously that did not affect the judge's determination and his credibility it was a credibility to terminate her both experts testify and he found dr johnson to be more credible when he what he did was he considered all of the intrinsic evidence that was cited by parr and he found it to not be limited and therefore he gave that term coded in code in the only terms that were issued at that went through claim construction came up they they had par had two constructions at the time one was a shell that surrounds a core and then there was a discussion of covering layer the court basically came out and said i'm going to give it plain ordinary meaning i find the intrinsic evidence the very intrinsic evidence that they continued to rely upon a trial to not be limiting we went through expert discovery and their expert came up with a new construction there were all these ever changing constructions and i which to this day their expert testified at trial that he didn't even know how you would determine what legal test you would i mean what technical test you would make to determine whether it was substantially evenly surrounded he basically said i can tell you what it's not but that it's not but i can't tell you what it is i don't know how to tell you it is substantially my surrounding so that that construction provides no no clarity as the judge would say so then we got to try it there was a motion in limine it to answer your honor's question so what happened was we said they're still trying to do claim construction throughout expert discover a motion in limine now importantly the judge denied the motion and eliminate but in doing so he said i'm not going to allow you to introduce the intrinsic evidence that i've already determined is not limiting for claims construction purposes allow you to introduce it for other purposes and you can in and on an objection by injection basis all determine whether that's claim construction or whether that's used for some other purpose we thank you just a couple of issues to clarify first they neglected to tell you that the first time they gave a construction ever on the meaning of the terms was after mark meant so the only time that we could have addressed that construction was at trial yet the district court denied us the very evidence necessary to rebut their first time presented construction regarding the bulk material that the claim should not be limited to the bulk material the claims are very clear a way or singular on a core singular there is nothing about hope material or the citations that they give are vague to the specification and they don't trump the very clear intrinsic evidence that shows that the exact invention that the inventor