comparative product that is that is referenced in the zero three two patent claim so it clearly says a stanley's formulation alone just a non layered matrix comet can have the p k requirements that are called by that point and similar language is repeated in the and similar languages is found again in those three to panic columns thirteen lines twenty three to thirty five this is an important difference between the other three to spec and the to try to spec they change the  understand ok i understand you're telling me that this new language is added it's not crystal clear to me that it makes a difference but even if that language theoretically makes a difference place one still claims used the word static during prosecution the the applicants characterized static in a way that limited those claims the later specification added new description of static tha referring to kind of contrasts the same metric matrix portion or separate release portions which are in the compressor mixed so what what are you saying the additional language in the spec where the language in the plane remains the same how did it right so the language in the spec the new language here says two portions can either be parts of the same matrix non  clear that the broader independent claims were not limited to a product where the portions were discrete or you know physically distinct and that we did it the other thing is when we added those planes we specifically pointed the examiner to the new disclosure in the spec saying the sustained release formulation alone can do what is called for in this claims and on two separate occasions we told the examiner  much different than they were in the in the to try to constrain the claim three right claim three and also claim seven if you compare those two claims one in five respectively they found that the only thing they add to that rick to the base claims is a requirement that the portions it's a tool that we use but in this case you had a disclaimer he's a b watson which arguably is pulled through to this child application you know claim differentiation has to give way i just don't understand as a matter of i don't see pulled through to the claim and start fires at first in the second portion so what should the legal test be for your obligation to put the public on notice once you displaying something in the parish that you are now recapturing it aside i think we did clearly no mistake i'm not asking you what you did i'm asking you what the legal test because i don't think it is crystal clear in our law and i don't understand you to be presenting a clear legal test so i'm trying to figure out first what the law correctly and the starting point is a point the honors have already made which is that the language of the claims is identical and for an art to the language that you are be construed in watson it talks about to the portion two portions one in an immediate release form and parameters and that's where the two portions language comes into play and i think the problem with records approach in this case is that they conflate those two elements and what would judge stark said and i think this is you know a very good way of putting it what he said was if you read the claims the way that wreckage wants to read them that you fail to give meaning to the two portion limitation be not beyond what meaning is separately required by the claim limitations involving the release properties of the claim drug product so i think that's a fundamental problem with their position the other three things i'd like to direct your attention to that i feel like to understand the difference which i don't really have very personal in my head claim three what is your argument with regard to claim differentiation just it kind differentiation is a weaker doctrine and we can ignore it in this case how does claim three yet there from column one i certainly agree that it's a weaker doctrine and it doesn't it can scope to claim one claim three i don't understand yet from your argument what the difference is the difference which which is a theoretical difference because there's no example of it in the past and i think that's why it's difficult to understand the difference as they claim one could talbot so if it will if one really know those are examples i don't understand the difference between the word discrete those are examples of things that are in fact discrete no problem i grew through there but claim three is broader than any one of those examples it says discrete so isn't it the case that claim one has been read to contain two discrete portions also well the language the with the judge sharkey's was distinct poor actions but i agree it's the same differen could encompass two forms of wealth and assent that were not innate for the a particular spatial relationship and i think the example that was given earlier which is again i put that all example is that you could you could essentially take where the inventors call a sustained release formulation and what i want to point you to is the fact that the inventors in the patent specifically describe those examples as lacking an immediate release plan so they they specifically say this is not a portion formulation it does not have an immediate release component and that's significant i think because if you look at the patent and this is in  inventors own words contradict that argument the inventor specifically said even though there's this burst effect it has no immediate it is on page one ninety six of the appendix your honor beginning at line twenty five history i think if you look at what happened here it confirms the judge stark and judge from got the claim construction right and specifically i want to draw your attention to the fact that the examiner made these claims originally started out as to fortune plans they got a number of art based rejections and then the plane to the wreckage cancelled all the claims and they substituted claims where they simply claimed a product contain c values in the clamps it was a purely functional plan and they got a one twelve rejection interesting was a crime is even broader than the claim that they disclaimed in the in the parent application invent the the examiner came back and said values look at our sustained release formulations when they have the opportunity to do that they didn't tell the examiner that you could you could get there from you could get these p k values with a single formulation product they specifically put after two portion language that was the same language that they and two five two application the other point i'd like to make about that is that at the time they filed that amendment which is where they added claim three the examiner did not have the district court's decision in the watson case which is where th disclaimer argument and they were discrete first appeared so when examiner got this amendment he would had no way of knowing that there were some hidden intent there to change the scope of the claim such that he might have reconsidered the art that was asserted again formulations in the parent application they didn't say that didn't make any remarks to say we're planning more broadly they didn't when they filed the watson decision two months after they filed the amendment they didn't say you know they didn't say this is in relation to the be sufficiently clear statements saying that you are sending the disclaimer and revisiting those previously broader claims none of that went on here in fact your hon parallel claim twenty four of the two five to patent and that as an appendix four six nine seven four zero four seven zero one so they were moving away from the disclaimer they are actually making their claims more closely aligned with the two five two patent now if we go to the to the eight to one patent prosecution the same thing happened in the two one patent prosecution the examiner rejected the claims based on droste and dancer o and they and the applicant noted in their response this is the same prior art we dress that we address in the past parent application and they made the same arguments they said droste is a formulation that does not have two portions of fairness and it does not have with two portions but it's a different p k profile so again these patents were aligned during the prosecution and there was no disavow but as counsel mentioned earlier judge stark didn't rely on disclaimer he looked at the entirety in terms of there you've got just being released formulation in the two one patent at appendix one to four and that goes on for several columns and then you get to the description the patent comma levon which is the modified release path product know because like you said judge raina when they get to the claims they drafted the claims with language that require two portions to formulations they just didn't draft the right clemence as judge moore ingredients that are blended together she produced a single matrix single formulation product th construction for the two five two panel which had embraced the discrete part of the project destruction and along with that we cited to the examiner all of the briefing underlying that so the examiner knew what our position was on on on portions  the other things i'd like to say about that amendment in that response we expressly informed the examiner in a subsequent july