that first before moving on to our appeal on the invalidity question when it comes to the individual one decision there's just a few points i'd like to emphasize the first is that while the interviewer one decision addressed the continuation three or five p preclusion rolling stock and the arguments that the that the plaintiffs are making with respect to specification disclaimer in this case are the very same arguments that they made with respect to specifications claim or an interview or one in fact that case was being  clarion junction stage while the parties were in the middle of proving this appeal and it was a year and a half after the trial in this case so when the want one case arose plaintiffs had available to them all of the evidence that had been developed at the trial in this case and all of the arguments which had been developed in this case in fact there were arguments that they made in the interview or one case that they failed to preserve in this case because they had to come up with that for example there's on drawing argument so this is simply the writing there was one to the cross we think that the principle mistake was just record made was to conclude that a person of skill in the art despite having worked for one to three years in the coding and drying field would not have either knowledge or access to knowledge or even access to knowledge of reasoning and this appears at page one seventy eight in the appendix what the district court said was it poso would not be motivated to combine the prior art to achieve drug content uniformity primarily because the poster would have limited knowledge and references rather than the so when you're going to move to the references your honor and you start with the schmidt prior art reference and there's really little dispute with the purposes of this appeal that the schmidt prior art reference gets you all the way up to the drawing stuff in fact if you look out court why don't we give deference to those findings not clearly room and you know clearly we respect the clearly erroneous standard and when i stand up again to talk about the question of of the the prior art such as the stroke of reference so that that's that strikes us as more of a legal error than a factual error now and again when you look at the let's take let's take a schmidt reference so if the schmidt reference gets you all the way up to the dr gets all the way up to the drawing staff and is now banging their head against the wall at the drying stuff which she met that person being told by schmidt there's a ten percent uniformity requirement would go out and sit and look for prior art which teaches you how to get how to get over the hump with drying you know what can i do to maintain uniformity and what we argue below was that that person of skill in the arts don't get the drawing stop would look to prior art shot such a strobe arch which on its face states that it's directed toward addressing what is surface defect caused by a lack of uniformity and so you can look at page seven zero two three seven in the up and x that sixto bush itself stating that model is a quote non uniform density defect you six two eight six nine eight reference i gave you dr immediate testified that to a person of skill in the art they would recognize that model is a de facto caused by a lack of uniformity in the film so a person of skill in the art who knows they have to get a uniform film to surface of the of the film to tell whether it's uniform and at page two one one six two in the appendix this is the plainest post trial grief they argue to the district court that one of the ways you could tell that the defendants films were uniform was that it was just by looking at the surface and seeing if there were any visual the facts on the surface so the idea that that that is the district court's conclusion that you could disregard scrollbars because it was directed to surface the facts and that's when related to uniformity was contrary to all of appendix which is the relevant portion of the nine or two obligation there are talks about having low molecular weight be sixty percent or more of the composition when you're talking about  the morning your honour's may please the court i will address why the district court decision to deny watson's rule fifty nine motion based on the new facts surrounding watson's amended and it was an abuse of discretion that made using that original process and that did not that used a different drawing technique the original process had a heated coding role that separately applied heat from below the web after and syrup there was nothing to be done except for a new trial on the question which has been in dispute as to whether or not this new process  whether or not the court was told before the judgment or after the judgment was fifty nine clearly provides the ability to modify after and the result is to say there there is no was no strategic litigation decision decision had been made to move forward with the commercial process and in the context of an end of where the court is instructed to look at the product that's likely to be brought to market we believe at that point  was right then and in front of the court and here in fact the judge believed that as well because the judge held the rule fifty nine motion for over a year is a very unique set of circumstances not likely to here that the judgement didn't become final for over a year the district court specifically held it after its initial decision to take new weapons of offense about the amended process in addition nothing in the judgment would prevent watson from going back and filing a new and with a new product that utilized a non infringing nonintervention drying technique which would provoke yet a new set of litigation about a process that is already been found in the second trial to be non infringing and indeed the federal circuit just recognize that and the the drawings specification the drying limitation and the specification disclaimer gives rise to the ability to bring a non infringing generic product to market and it would simply be a manifest injustice where the issue was not tried it's clear it was not tried in the original trial it was raised to the district court after it after it had been determined valid for marshal zation process it clearly was not waiting and in fact in the new trial the judge found that that process would not infringe on the drawing limitation which the court found was the same as between the five point four and the point seven and the last thing i would say is this situation will not re it's been clarified in the regulations as noted in our our brief within a week after the amendment was filed the f d a issued new regulations with which make clear that any  one for patents that would have provoked a new case and that new case would have been consolidated into the existing proceedings the end result would have been a consolidated trial exactly the same as the issues presented in the actual second case so we think here in order to avoid the manifest injustice of flocking a non infringing generic product from the market and treating different litigants differently the decision should be didn't address most of the infringement issues for example that of zoom driving that wasn't presented because the central issue was were the claims essentially the same in the three zero five plan as in the five  additionally under the law on this comes from the supremes court in the chemist case and a variety of decisions of this court outside the box gillette and others that was a tentative ruling was on a preliminary injunction a limited record and there's no reason why this court is cannot cannot look at the issue afresh indeed we're entitled to that because the fact that we had already lost the delaware court was a consideration it's addressed in the decision vacating the p i appeal i haven't received a question about doesn't the fact that we lost in delaware undermine our position here today we're entitled to our day in court this is the day in which this court should hear the appeal of the delaware judgment the issue hasn't been decided the the the majority o court with time constraints with limited briefing focused on the issues of reclusion we believe reached the wrong decision and is free to look at it again in jalalabad the this court said that the driving we have a new wave that issue the in fact the preliminary injunction appeal decision distinguishes as the patent does between on the one hand conventional drying techniques using drying of instrumentals and the like you'll find references to that in column three of the five hundred four plan and control drying method us one of those control drying methods is bottom drying and that's very clear from the discussion in column for i'm happy to walk through this chapter and verse but if we thence move ahead to column twenty eight of the  discussed figure six and seven are restricted to bottom drawn figure eight the drawing shows bottom drawing but it's not required when we have a reference to the magoon teaching and then we come to the in the past on a stepped up flying a fact with the temperature increased from zone to zone it follows that teaching of the patent that's not subject can't be subject to any disclaimer there's no way that col disclaimer of anything there certainly can't be of solti conventional convection they're drawing from the top that's a statement about one embodied figure six in column twenty eight so we think that the follows exactly as it's taught in the pan pan even says that this is a method that will avoid skinning which the patent elsewhere uses interchangeably with with  so the decision of the the in the context of the preliminary injunction not only is it not binding it's wrong and it doesn't address fundamental issues of infringement it couldn't have the issues then at hand we have to accept what the delaware court did and then argue whether the coins were essentially the same so for all those reasons we don't see how the preliminary injunction appeal could possibly i'm sorry that's not progress ok well then our best argument is it's tentative based on a limited record the court didn't have the district court's ever changing clean constructions before  so we have a claim constructions that morph from case to case now and we've detailed this in the brief that the first go around there is no disclaimer that it can't just presumably because sophisticated repeat litigants i think that was the phrase they didn't see this clear and unmistakable disclaimer then in the next case there is a disclaimer and it's found to be solely conventional convection air drawn from the top and the district court inserted the word solely because there were in body mint using the top there and then it came to rippling rippling as the touchstone for whether or not something is discrete that's in the alpha gene opinion which was applying purportedly applied in the trial decision here and then in the trial decision we have yet what is in effect a new claim construction where the focus is is the convention is that the process used as a whole conventional this is where the original disclaimer was in terms of is the top drawing used used by itself to dry and is it conventional and now it's about the process as a whole including the bottom drying which the district court said was done in such a way that the the drawing from the i missed the last high molecular way like your way so there are factual findings made based on testimony received this is an issue of fact in title meant to the to the the the priority date and the nine o two application is is very clear if it gives directions about how much of the law molecular weight p o to be used it's up to sixty percent of the p l o blend says the p l o blend polymer components but the core understood that based on the testimony to be the entirety of the polymer component right below that you have a reference to h c p being part of this environment and while this is a description of the nine to two applications of particular in body met with special properties so we think it's clearly here and it says right below that to balance these properties this is the appendix at seven zero zero three five desirable film compositions i'm sorry a three so that doesn't seem to be contested they have a joint issue on it they three to patent we the claims were invalidated on the specific grounds of obviousness the court the delaware specification disclaimer was clearly joined that was not just a case about claim preclusion and in fact when you look at the slip opinion the majority slip opinion from pages eighteen nineteen that is all about specification disclaimer what about the go so th drawing your honor was extensively briefed in the end if you are one case i was kind of surprised to hear that zone drying wasn't before the court if you look at plaintiff's brief and that case from pages nine to ten forty five to forty six and forty nine to fifty you will see them arguing about zone drying now was own drying preserved in this case it wasn't we we made the point in our in our response to their cross appeal that it wasn't preserved and what did they come back with in their reply brief they said it was preserved in two ways first they said they argued zone drying in their post a trial brief you can't preserve what is effectively a claim construction argument in your post trial brief if they had made this argument earlier in the case obviously questions like the literally an infringement would have been we've made nearly well so that the discussion in the specification of zone drawing says nothing about where the air is coming from it certainly does not say that the air is coming from the top in a conventional manner what it does say is that when you're using his own dryer drying must be work and now this brings us to the the district court's factual finding that as construed dr reddy's does not infringe the patent because what the district court found was that plaintiffs and in many ways dropped the ball in trial and during the development because they did not take measurements within the oven to see what amount of heat what was was above the matrix or below the matrix they didn't measure the air flow so that the plan of simply did not meet any kind of burden of a production or proof to show that the majority of the drying was occurring below the film what this record did find in this is a factual finding which we do not see a challenge to on on this and there briefing this is at page one fifty in the appendix just report found those controls in the way we do come up with a uniform product was wrong and they they couldn't argue that because there was plenty of evidence at trial including from their own expert i would suggest for example pages twenty seven eighty seven appendix their expert testified that these were conventional controls our experts certainly testified that these were conventional controls and so based on that finding the district court found they were not doing anything that wasn't known in the yard as of two thousand and one when it comes to drawing films  you know there's the is the issue of you know one of the arguments that they often make is that while we have a uniform film at the end of the day so we must be doing something unconventionally the district court's claim construction was very clear that while our method of drying may be associated with the rippling effect and with a lack of uniformity if there are ways for example using these various controls for somebody through an you know iterative experimentation with various parameters to obtain the desired level of of uniformity that's what we did it was it was nothing novel there's nothing that they can obtain a monopoly to so i think if construction proffered with respect to the prying limitation and i think what's clear here is again watson's original and described a drying process that second trial he was asked that his deposition about that process and he's he's fifty fixedly conceded that it was used to set or freeze the film and when asked how that was accomplished he said by applying heat from below the web so at no point in time did watson use a soli top air drying in connection with the original and so there was no not make use of a heated coding role it was found not to infringe the drying limitation of the four nine seven patent as properly construed which the court found was the same as the five hundred four and again we think it would be a manifest injustice to block a generic from the market where the court actually took the time to have a second trial that in the rare circumstances presented here was already on calendar at t believe that when you check the briefs below you'll see that the discussion of zone drawing was in the context of i believe the written description issue in any event that's a different appeal we're here on the five for one sixty one through sixty two states that there is an alternative to any control drying method and that's selecting polymers that will themselves provide of  drying methods are then restricted in some way i want to also point to collin twenty three and this is at the appendix at three forty four and what you'll see  twenty one through twenty four is a reference to interaction of the different steps ok obviously as a matter of science what trying methods will work and what won't work will depend upon other steps in the process that's what the pants explaining here explains it elsewhere too detailing the best ways to mix to cast and the like there is no statement here that could possibly amount under this court's precedent to clear and unmistakable disclaimer we were told that the issue of zone drawing was waived we for vi did three sites i believe three arguments as to why there can't be any waiver here first we were arguing for the pla meaning initially that was our position so we can't be relieving arguments about what is or isn't included in the disclaimer that the the court eventually reached the second it is in the out of the gym martin say the zone drying example is does not restrict where the air comes from and that's clear not only from the description but from the figures to which it refers figures thirty five and thirty secs so what ever possibly have been disclaimed in this ever changing scope of disclaimer it doesn't include zone drying which this court in its decision vacating the preliminary injunction would described as a controlled drawing math it distinguish between control drying methods and conventional drying techniques so all the from the top with the ladder which it said was disclaimed and distinguished those from control drawing column thirty to identify his own drawing as another method of control drawing a little later in the column it specifically says that it's of the present invention so this is the judgment of kno judgment of non infringement here should be reversed this was the only element purportedly not that we don't believe there's any basis for a disclaimer but if there is some drawing can't possibly fit within your honor as have