morning i wanted to make please the court i intend to address two issues of course if your honor said questions on others i'm happy to address them to but two main issues as part of this appeal the district court made error with respect to  much of a dispute that chang the patentee the applicant gave up the derived had to wait excuse me a delayed release portion that releases in the stomach they made that statement so i get in order to overcome that chef chef which leaks if i the way if i start to approach you have a lot of things mark confidential if at any point you think i approach on anything that's confidential wave your hands jump up and down do something i'll try to it's extended release in the stomach so they wanted to get overshadowed so one of the ways they attempted to do so was by saying oh no we used the word delayed release it means nothing in the stomach nothing until you get to the intestines outside the ph of the stunning nothing and i understand that this product kind of arguably works like chef so i think there's no doubt in my mind that all of those statements amount to just claim or if you know isolation but we're supposed to read the prosecution history as a whole to figure it out leading up to lead release that we can find that requires it to not release until after it leaves the stomach delayed release and they cited a number of exhibits always means to release any time differently than the normal mean and the board rejected those attempts clearly and unequivocally so my problem for you is i walk away from this prosecution understanding that they were not allowed by the p t o to give that term the construction they wanted to give it and it would be give him a broader term so my problem as a prosecutor street stoppel part of the purpose of that is notice to the world why put the world on notice as to what the scope of this claim will and will not cover so when the board has clearly said and that's shown up in the in the the case law shows is welcome i think i should talk broadly but but i think if we talk about pods and south wall in those cases the patent owner made distinctions of the prior art t because in that case every piece of evidence pointed to that definition and here no piece of evidence points to the definition that he wants to give it but again but your honor i think the point here the question here is what the patentee said not what he would conclude based on the prosecution history and what the patentee said but that's why american pile driver is a case strongly in our favor because in that case the patent office actually went against denied what the  isn't the claim construction point they didn't have a literal infringement case to bring on a change we're talking about right when they're trying to bring my mini bus lane right yes that's right they tried to bring one and it's i think it's fair to characterize it as the district court found it to be waived and wouldn't let them go forward instruct their contention so we don't have a literal infringement case here all we have is a doctrine of equivalence because so all the talk about claim construction in this case i don't believe is relevant to the issues your honor what's relevant to the skilled artisan because what i'm worried about is confusion for skilled artisans down the road you still think a skilled artist simply read that would understand that nonetheless these claims are in fact limited to delayed release intestine even though the even though the examiner came along and said that is absolutely wrong and the memory about what i worry about is if the rule of quality you're asking us to adopt in this case is going to create a lot of confusion down the road for confusion because then rather than it being based soley on the statements of the patent fee which i i submit is what the law is now we're now into the case of what did the p tap say well is that good enough or do we have to wait until a federal circuit reviews w were in the record i'd say hands down disclaimer and then the clearest rejection i could imagine by the p t o so maybe this is not a great case to make important law in because most cases are going to be fuzzy so maybe this is the kind of case stop by amendment argument your honor and what happened there was that the claims are very clearly were amended from comprising and i'm paraphrasing but comprising a d v r and i are portions to consisting of a d r in our portion there's no unfortunately ruled on the theory that it was not tried and when we had this doctrine of equivalence theory on ashley two that the district court decided on dermod did not open with that theory dermott did not present not try the district court we believe based on the way the briefing was done relied on something from a factual presentation from the actually one patents and so the absolute two patents and came to a conclusion there's  equivalent but the problem is that the record has to have particularized testimony and linking argument as to in substantiality of the differences that is completely lacking here and so the actually two findings should be referred i have another question going back to the argument and if that's not one of the concerns i have as i'm sure you'll agree with me that when a patent owner takes a particular position and claim destruction it's a clear  longer my position of how the claim should be interpreted my concern is this what mechanism is there for a patent on or to submit such a paper in a circumstance like this where you have an i p r proceeding with the final decision by the board what kind of mechanism is there if any for the patent owner to say hey i retract i no longer think that that's the right position because it's come on let's face it everybody's going to want to do that and  proceedings as i understand it from their trial guide could be more limited in terms of what papers are allowed to be provided that and i agree that there's a limitation but i would say your honor is i can't answer that there is a specific mechanism as i stand here right now i cannot however the fact that it wasn't even attempted here it wasn't even try to track it that shouldn't get them off the hook for the statements that they made they're responsible for the statements that they made and they know what they say in the file history is important and is going to be relied on by others and they took those positions and it shouldn't be the problem of the patent challenger was similar and consistent with the parallel term sub antibody know as sub antibiotic amount which was the scaffold on which the experts put in their testimony and that's because the antibiotic amount terminology require no or substantially no anybody get to be in four areas of the body one of those areas was the skint and the evidence was presented at that point that there was no reduction in micro floor of the skin difference between the doxycycline a placebo for any organism and either time this is skin micro flora your own is presenting that because that is part of the st element no reduction in skin record for if you go t it that is a forty milligram doxycycline functions as a sub antibacterial amount and he goes on to talk about no detective on page one hundred and seventy nine dollars same pen excite no detectable long term effects on bacterial thirty milligrams of immediate release in the sphere there was a barrier and then eight more milligrams of material which is just a milly's writing in the courts and i but what the district court concluded and there's been no allegation of clear error in this finding is that the two plus eight he calls ten and that the outer immediate release layer of thirty milligrams on th plus the barrier that went around the eight milligrams constitute the mechanism of delayed release such that it met the claim construction of not releasing immediately or promptly after all  as i understand it as a factual find it is that the eight milligrams indisputably did not release promptly following oral administration because of the in a position of the outer layer and that other barrier and the district court relied on the evidence presented by the experts weighed the testimony of the experts weighed all of the internal documentation it was presented as evidence during the trial we came to that conclusion it is nuclear and find honor getting sticking with chang what appellant is asking for would be extraordinary here it's clear that the clink destruction arguments of prior artistic shows that were made by the distance i think on the basis that the intrinsic evidence in that case supported the claim to structure the position i was being urged by the applicants as well here though you know it's kind of leader to take that as your distinction when during an i p o i'm not aware of any your honor and in this particular instance there would have been no need to do so in terms of public notice function because anyone reading the board's final written decision would see that that position was  ultimately in front of the board based on the claim construction that was adopted here that was applied correctly by the district court and that's one challenge here on appeal their position would would also create an ano we we thought that we received evidence that showed that they literally infraction and let's be honest here the proofs i think least the findings at the district court made would suffice for a literal interest when he found that they had a delayed release briefly again on ashley well actually on the amendment based the stop i think it's important just to address that briefly it doesn't apply here because they fall literally within the territory of consisting of  milligram d r in a thirty milligram the court so found under its on challenge claim construction that they had those components so even if we were limited to the territory that that was not surrendered they would fall within the amendment was also tangential as this court recently found its eli lilly case it was tangential to anything having to do with the distinction that was being made in the prosecution record it was made to distinguish high dose prior art which showed one hundred to two hundred milligrams of doxycycline being used and that was clear in the record and in both the responses of the applicant at e no thank your honor with respect to actually to your honor has it right there is no particular lies finding there is nothing there that indicates that any of the quotations that he read from relates to actually two or  doctrinal quick points finding so we are in a situation where the burden apparently according to my colleague on the other side is on us to have gleaned from this record that we should have responded to a theory that they did not raise i did want to address the point about the pretrial order that was the a forty five for over reference what also happened in the trial court was that my colleague argued in another context that a pretrial order does not constitute and a s are sustained release portion of the of the amul product that takes it beyond the scope of the consisting of the language of the claims which was just d r and i are and your honors with respect generally to prosecution history and stop all your honor i do believe that this is a classic case of where prosecution history of stoppel should operate i understand that the pete have ruled against them however they're responsible for the statements that they made their on notice that statements they make in the public record are used by competitors to determine what their product can be that's exactly what happened with ammo which redesigned its product after the p