we have a matter of an admission not against interest but actually much more in our interest when we judges higher law clerks we can be pretty sure they are going to be smart and usually able but we're not always sure they're going to be dedicated and devoted and hardworking in the way we think they should be and the light for me today to move the admission of a young man who has served me in my chambers for the past year and i've been fortunate over the years i'm not i'm going to say how many years and having some really outstanding people service locklear and then coolly fits right among that group of the best law clerks you could imagine so delighted this afternoon to move the admission daniel craig who we who is a member of the bar in good standing of the supreme court of bridge and yet i have knowledge others may please the court my name is steve moore and i represent zydeco to do a healthcare in this matter what we have here is a tale of a company who looked at the path of specification and its file history as well as the final histories of its a including the claims to read on the disavowed species well you have been i mean one of your strongest arguments is obviously with respect to the claim language which is just the number four hundred and not more or less acceptable but it's not fair to let's look at the written description at column two and you've got lines twelve down to twenty two and what you have here is a definition of what is a conventional  particle under this invention and what you can see here is that they define granules having a large particle diameter is being conventional and that's four hundred mi that length sixty two of the path of the same column so you don't want those things and we have a new invention and what our invention is it is you have to have a particle diameter that includes  pilot four hundred microns or less and this the whole thing with the judge went on was this word of mouth but when you look at this you have two distinct definitions they are they using four hundred as their dividing line between conventional granules and non conventional about four hundred could be thirty nine point nine nine thirty nine point eight but it's very clear in this patent that they're always talking about some things below that number so what is your position on how to understand the claim that didn't have her here one percent three percent ten percent where and where clients are honest answer is always been read the specification the intrinsic seven is really clear it is four hundred is the dividing line four if we gave in because of our you know we know that you know through there is some give on these machines ok we said even though we think that is this particular patent reads the way it is we will say for  it is an alternative argument turns of argument in the sense that i think that the patent specification is clear because you don't want to have disavowed granules in your level and you have yet another alternative argument but for minus one per they brought into this whole case which makes no sense would with me and you saying that if you use the laser diffraction method you come up with a particle size diameter or twelve that even though the measured values for a twel advocate that the claim construction would be as the spackle says they actually divided the world into can that otherwise you get complete confusion that divided the world into what is a conventional granule which will cause roughness in them and what is they put on the maximum size of these particles the four hundred twenty five microns so why do you have to do that because if you have a median you have an infinite number it any grandeur of population if you say i have a where the very same type was measured broken up and measured and using two different measurement methods came up with very great disparity and measurement numbers now that comes from the expert testimony  wildly different results based on using different measurements because it's well known in the field of these methods will give you different times and i'm watching my time here and i'm over and over to prove shit if i could but isn't that key to the you say that it was only supposed to be laced with a fraction that's what they are going to get their claim construction was on laser fracture variability as you know there's variability for each method is different if they stuck with that then yes they are they  please the court arlene child hogan lovells on behalf of the tecate a tele the court properly construed the claim construction to incorporate a plus or minus ten percent deviation where it is then percent come from your honor in the argument what's the evidence for the prevailing scientific authority the u s pharmacopeia which is the standard setting organizations for the pharmaceutical industry as well as the key here i which is a collaboration between number come from from the understanding of persons of skill in the arts at the time your honor but person but the ten percent is really based on the notion that the instrumentation for making these kinds of measurements is not  the ten percent also includes i guess what preparation and of the sample and things like that in the urine it's a ten percent reflects variance in the real world setting where there are different users different instruments where the the absolute serial is not perfect sphere infinite why doesn't all of that just go into the standard of proof of infringement and not get all shovel into understanding what is the proper scope of the claims the claim is pretty clear as this clear as it can be when it says four hundred microns or less and then the question is ok does the other side fall within that all right and you have to take a measurement of their granules and their particle sizes and then maybe there's some imprecision in the instrumentation well now that's a proof question is and it's not a claim construction costs i think in under these circumstances where the patents allows for imprecision where it recognizes that there is imprecision in particle size measurement process is just not precise that we factor that into the understanding of the claim terminology i don't know if there has been a case where you have the evidence here or in the specific context of pharmaceuticals in particle measurement on possible and yet and yet your honor in the specification in the written description when they define what is meant by what is stated in the claim in quotes they use the term your claim what you like is to know then i don't know if we could stop there i think we'd have to keep going and then also read into the claim an understanding of a thing that we did grab that's what i'm worried about me you're on on the patent the story clear that maximum and medium particle diameter are two distinct concepts and indeed your honor that was under spewed at the record is undisputed both and and incorporate a hard cut off of four hundred microns because we had tested and our numbers were four hundred twenty in relations itis this product we could see the determination would be remanded to the court for the doctrine of equivalence for infringement goals of manufacturing they where there would be minimal a quantity which is why you talk about an average micron value i think that's well that is different from from from the determination of whether or not you ules because we're talking about decreasing the harshness of rock right and that has to do with the size of the particles your honor roughness of the mouth is not the claim limitation it is an abstract purpose of the invention and it certainly multiple examples where you make up these granules and you use laser diffraction every single time and then just using laser diffraction you you immediately go to the measurement and report the measurements and there isn't any notion in any of those examples in the patent that shows this active original cutting the record reflects your honor that a person of skill in art knows to inspect a sample prior to prior to selecting this new word called the agglomeration and it just seems to me would be very odd to say that a competitor having read that patent couldn't use the very measurement method that's disclosing the pat to figure out what is the appropriate or what is the correct size of their grain your honor it is undisputed that optical microscopy is the standard particle size testing technique now in the patent differentiating and when you go about differentiating how many there are it doesn't need to your honor because the person is still new york comes to the scans with knowledge of a particle size determination that is a very standard technique and that is why the snork article one looking at this patent so it will be it's an example but the only example they have is a laser different laser whenever god you're saying to yield appreciably different results by doing this other method that's not raised in the included a limitation of roughness of the mouth i would be here today arguing against sides is argument that the patent is invested that is an abstract purpose to the contrary the patents to find a very clear boundary your own which is for under which does not resolve infringement and indeed your honors i just did not snip any any test results to the contrary it is our testing against their specifications that specification is flawed we submit because it does not allow for  more than we went over to a couple more minutes in addition to the two and a half year particles even if you follow their i'm sorry to use the word concoct a way of cutting these things apart for twenty one if that's the number that means half of our particles are of bulbs for twenty one you've got a situation now where that means the vast majority of your particles are above four twenty five for twenty five is the maximum it gives you a little leeway and you cannot do the math to get where they want to get to what and i would totally disagree that the right of that was not disputed on the record we have always said i mean any rational person reading aside from this there defining the fine granules we're not talking about another set of fin different analysis then you're now selling don't we have to give the trial judge some credit for having the witnesses and judge them accordingly went completely arrive by not following the intrinsic evidence and then listening to an expert saying ok listen to what he tells me because he knows better the patent is clear there's there's not even a question in this pat t large particle diameters you just just heard this child saying oh you have a large part of the condo from three sixty to four forty that makes no sense that's what a plus or minus means to any engineer or any scientist this idea that the doctor came up with somebody gave you a loan of ten thousand dollars plus or minus ten percent you know we had more money than enough in stock of stock in this pocket plus or minus means to a second grader plus or minus you can and the district court can change the definition if the district wouldn't be the first time i've heard of an all case law where district court changes an explicit definition in a specification he can he can construe a claim but he can't change the specification and by the way three percent doesn't suit all er in those in those references that we're talking about if you look at the iso nine hundred ninety nine this plus or minus ten percent for there are three samples that that's based on three samples we take nine samples if she if they understood what