the next case for argument is fifteen one seven one six fear intellectual property versus one chilcote's burden despite failures evidence of meeting and my up or maybe i'm confusing this with another case my understanding was you're correct that that's what the district court decided but then he had an alternative holding gloves which said even if i consider all the evidence i dispute that that that is what occurred at the time of claimed instruction rather were chill had absolute permission to move for summary judgment which was the district court's rules i guess i'm not really clear what point you're making well the point your honor there's been an argument that in the claim construction argumentive mayor had waived reliance on its forensic evidence as part of the indefiniteness inquiry and that during the claim construction argument when the district  not different it's simply answering two different questions at two different phases of the proceeding i don't even understand how you can say that whereby kleis is as compared to a woman not taking contraceptives the way the language is written i don't understand your proposed construction and you're right that that women not taking thought this up is by definition that there is no kind of contraception occurring but as explained in dr shulman's declaration when drug itself is done on a population of healthy women who are not taking contraceptives and then later and in response to you know the summary judgment motion you said it was compared to other that he would know excuse me a person skilled you are would know that contraceptive reliability was high based on the knowledge of how contraceptives perform marketed all contraceptives that the level of performance the degree of of contracept t you need to answer her question directly because your circular answer which doesn't respond to it only makes the whole indefiniteness finding more appealing so can you answer her question directly what is your construction don't just say oh plain language  doesn't help because the district court found the plain language to be indefinite what so what as high contraceptive a liability as compared to what low incidence of fla killer development as compared to what there is position appears to me to be a moving target in this litigation i understand why district court rejected your first construction got to go to you know your fallback position i get it but what is your argument now want to appeal regarding how this claim should be construed and if i could answer in two parts the comparison that the person would have to would have to make the up but your honor if i could one one point with respect to your question which was the difference between the construction  that in his first declaration of a was first instruction which was high compared to a population of healthy women the next question became how does a person of ordinary skill know what hyun means that was a term that had not been defined had not been able to compare this understand the performance of the caucus that that against the performance of other contraceptives but the knowledge of those are still in the are before you before you run out of time can i just take you somewhere else which is back to the prosecution history because  the other side says when the prosecution to history took certain extent bears out that the reason for introducing this whereas clause was in face of a rejection probably since right it was yes and your argument in putting it in is this shows the superiority of the product work line of what we're claiming right it shows the distinction from the prior art with respect to being able to have a very low the teaching was that as you lower the amount of estrogen you begin to sacrifice for example cycle control the the point i believe the prosecution the street with that was being made was that even though you continue to lower estrogen with this regimen you were able to achieve these effects in a way that if you were to lower estrogen in other contexts you would not so yes and in that sense it is is the but just a following of estrogen was found to be obvious by the examiner and that's why you had to put in this whereas clause we have to scribe unexpected results in the face of lowering the estrogen is that we're saying yes there was an obvious finding with respect to the regimen itself excluding the word so you're saying this your use of the word superior wasn't in can in connection with products currently on the market it was for products that or products that might use lower estrogen levels yes  what do the claims need what is the scope and understanding of the claims and the corkage of procedure to resolve that before moving on and the well established procedure for that is marketing and they came in with one me j five zero five for example in their markets opening market paper they said assessing satisfactory type of control requires comparing the cycle control of the oral contraceptive so the menstrual cycle of healthy women and we're  superiority is one cannot compare security security either one would say for example a man who is of high comparable to other men or a man was taller than others but although all remains subjective how much rejection and they added this clause and they said this would demonstrate this products of perry r d why isn't it sufficient to infer from that as you all suggest a claim construction that it is this project superiority products but it doesn't say whether that stuff will control the satisfactory or not so we have intrinsic evidence that's teaching that all of these very even is to lark it products but doesn't tell you how to do the comparison not each individual person what if one of skill in the art understood what the industry man when it said satisfactory cycle control in the context of birth control i'm catholic so i'm not so good on how much is satisfactory how much is better than the other part while the other products vary take the reliability costs reliable avoidance of undesirable side effects well how do you compare superior it with regard to headaches first of cardiovascular versus they all vary at what point is it comparable if one is better avoiding headaches but that produces more breast tenderness or greater cardiovascular results which is superior which is comparable it is impossible to answer that question certain percentage of women they get to ten if another regime where it's fewer women but it gets to thirteen milliliters which is millimeters which is superior you can't know the district court knew all things and the key point here is twofold these are all one upscaling are would understand and provide objective boundaries sell high contraceptive for a liability why wouldn't one of skill in the art understand what that means you don't end up pregnant it seems like a pretty straightforward concept to me would be i don't know what i'm missing and i'm not certainly not want to kill mark however i would i mean if one of skill in the art could provide that information why isn't that relevant to deciding whether the really can't be one hundred percent or if it is one hundred percent and there's nothing but but the problem with even concept of alive delivery is that if varies what percentage of women what is the risk of pregnancy taking this cycle control little or development of avoidance of it are cyclical miserably avoiding the reliable avoidance of undesirable side effects each one of these are degrees it's not a matter of light switch on or off they're all every one of the mysteries and there is no get general if you took all the products on the market in one nine hundred ninety five this is where they would be on all these additional heart what is high what is low except and what if we could easily determine what those comfortable markets consiste comfortable products consisted of with respect to each of these categories would that be sufficient it might well be if you had a single one think contraceptive a liability and that was a benchmark right ninety percent that would be the sort of objective area where ninety nine percent reliability that might be the problem here is some of them are not available to benchmarks at all reliable of boykins of undesirable side effects why because you have a variety of undesirable side effects which are independent been no suggestion for any of these that there is such a benchmark there they say the intrinsic evidence for civically says that if arabs and the district court of serve that in rejecting even comparability as as a definite term step by step in correctly excel in these are terms that are subjective terms without fixed me they've been unable to construe clicks which means we have construction that there is no objective boundaries that they are in their  in the are they are understood by those in the art as clinical assessments regarding what are essentially very important design elements of an oral contraceptive itself so to the extent that there is a question a factual question over the scope of knowledge of one of skill in the art the record as it currently stands on s