whether the district court erred in finding one summary judgment that the an alleged infringing product having a mass ratio of four point six to one did not infringe a claim which required at the lower limit a mass ratio of five milan the defendant below in this case had one primary argument that it was and that is that by using the term between in the range of five to one to fifteen to one it took on some type of special significance i submit that if you look at the cases seem part of the trial but it seems that i don't disagree that their primary argument but your primary argument was that filed two between five and fifteen has one and only one needs and that is the ordinary and that is that each of those numbers covers  it covers the range that attributed through the scientific principle recognized by this court around so to that extent i would agree with you your honor so why does that sexual issue  when i believe the issue an issue really if raised during a marksman claim construction would be one of claim construction if the challenger to that raised it during a lower court's proceeding the mark can proceed the presumption in this case is what we learned back in grade school that is running apply it's a sign you're saying hands down if he says ordinary as a starting point if one wants to raise the issue as to whether that presumption of that range should not apply in a given case and for example the best case case is a very  good case to point to on that and that is true there was a range of zero point nine one the question is did it extend beyond that to encompass a product that had a range beyond zero point nine one and the question became well is there another significant digits in that case that would preclude rounding and the this court looked at the final history on that and found in the final history then fact although the claim limit was zero point nine one the issue had been raised through prosecution and the argument was made during prosecution that in fact the prior art of things which is not because of the zero point nine one because of zero point nine one zero so in that court for those of the four cases that deal with the issue but let me let me go back for a minute to the point that the judge protests pursuing it first and that is that the how come this question gets presented you know it's amazing how many times people come in here and they both sides of the district court playing an ordinary meeting and then they come here and dispute what planning or near a meeting me say you're saying if they wanted to in any way were but this presumption that you say is a mathematical given that there rounding or that that's an integer is a guess has a vague meaning or an indefinite meaning but if you're saying that if there's any way they wanted to rebut that they should have raised that a claim construction i'm sure you noticed in their brief they say if you actually wanted the the end points to be construed that you should have asked for that kind of stress are you saying they knew full well as of the claim construction hearing that that you intended to make this argument the plain ordinary meaning included  principle which has been recognized by this court invest case exactly well let me see let me turn to you then for that question i mean you tell us here that we've all been learned in grade school and so what's the significance of this particular number and where i am but the only evidence of record that we have with regard to that point on your side is the deposition of the doctor we was clear about and the other side's response to that is that this is conclusive and it seems to me without showing us anything i mean you statistics do you think that's sufficient because that's just a given we all learned at a great school and in that instance your honor he was addressing the more specific question not addressed by anyone inside of milan and that was once you put into context the question of the five to one ratio in that twenty with there have been from the standpoint of a person of ordinary skill in the art an appropriate remedy in that case and that's what he specifically addressed there's no testimony at all from the standpoint of my three point three so every single example throughout specification carries it out to a tent so why wouldn't want to kill me or look at five to one and assume it's five point no one and fifteen point zero to one well actually no so let's look at the example column three lines sixty to sixty five you've got these numbers right when you add them up there are one hundred well look sixty four point five twenty one not twenty one point zero just twenty yes what you have all the others said it is twenty one point zero same thing in other places in the specification it seems to me that what i've learned by reading the specification is when the inventor wanted like look on the example two on column six seventy one twenty one point five five and two point five obviously you know the others are point zero so it seems to me when it was a point zero we just left off the point zero because why would you have a number with including a decimal point tense and then have another measurement number also on may last and not included to the tenth and when you add it backwards it's point zero why don't we just assume he did the same thing in the claims itself when it was five point zero he just left off point zero that's completely consistent with what he did throughout that i would argue your honor that in fact the if you if you look for example at the testimony from  investors relied upon by milan what they did was they went through and they did that mathematical counseling session and that mathematical calculation was to two decimal points because that was the data that was presented in example three to t and anyone skilled in the art that wanted to look at that example three to determine that ratio indeed could have done the same thing but the recognition that is that that degree of specificity is not present in the ratio the specification  ability to achieve a number with two decimal point points away from any attempt to put more specificity in the claim ratio of five to one i guess maybe you  misunderstand what i say in these examples where you kept carries everything else to extend whenever it is point zero he doesn't bother listing the point zero it makes no sense to do a bunch of weight analysis again focusing on the table your honor i apologize for this but i'm not quite understanding the question that you're asking so if you could just repeat it one more time when they have twenty one is obviously twenty one point zero right know so obviously when this event every single one of these goes to a tense so obviously that was the level of significance of the way twenty one has to be twenty one four zero so why would you want to reading this say when the inventor meant five point zero he just said five because that's what he does everywhere where that add numbers add up to a hundred and one of them one point zero well i mean twenty right twenty one this is the there is no point zero after that all of it but it has to mean that right because the numbers well that up to a hundred and this is the percentage that have to add up to one hundred so it can't be twenty point five six it can't be twenty one point four nine because those numbers would not add up to one hundred in this table if it's not a point zero it would not add up to a hundred yes i agree with him but but again the racial we're talking about is the ratio between if you know fiber at the age p m c which is set forth with this degree of specificity and there's a reason for that and the whole issue before this court is whether that about gives a range it's not the inherent range of rounding it's the range that goes along with the use of the term about in fact this case is remanded for consideration by the district court the application of the term about which would port looks to some basic construction principles as to terms that were apparently never construed but or at least end points that were never considered but what the district court makes a good point when and when he says if i accept your rounding nine and if you're if you round all the way down to four point five one how can you claim that that those are significantly different ranges which is exactly what you said in your prosecutions there is nothing in the prior art that motivates one to change from the value of four even if one were to round the stamp patent there is still a difference between the stamp patent and the claimed coined and what the prior art range would be and that applies in this case as well what a question of obviousness requires among other things motivation and not know we're looking at when construction or as in the context of  but again there is nothing in stam that says do something that's totally outside of that range and that's exactly what you're doing if you were to go one on one microgram above that round pointed out that there's a difference i'm going to knowledge whatever a small percentage but you characterize the difference between this and a single substantially greater so it's not just that there's i don't think we were suggesting the two overlap but substantially greater really again there is some confusion in the record i believe this to be arguments used during prosecution as to whether the argument relates to the issue of the ratio or whether that in fact goes to the total amount of well i don't know largely look at eighteen forty nine because maybe i'm misreading it but there's a sentence there that says the plane convention that's just the stuff one where confusion in this particular sentence i think you're right in that particular sentence your honor my point was to the reliance that my mind is placed on the arguments made during prosecution about the among other things one is allowed to draw a bit of the right line between what's in the prior art and what's coins and what's cleaned in this convention is a range and it does begin at the bottom of the range with five to one but that is a range that cannot be found in the prior art and certainly cannot be derived from any teachings well it's not five to one if we accept your argument it's four point five one and higher and technically if we kept your argument as just first pointed out am covers four point four nine and you go to four point five one s right i mean either mathematical principles that's what you're telling us to interpolate the difference between spam and yours the difference between four point four nine to one and four point five one to what you're claiming a significant difference it's the significant difference because it's not taught numbers you don't relative the situation like that when in fact philip the well it wasn't that you are a good point judge moore but it wasn't weaved in this case for two reasons because we had the inventor testimony saying the standard testimony supports your position and i see it going completely against your position that's what i don't understand to point to and first our product i believe this  nine five and what this testimony shows is that one skilled in the art when he makes a product to measures with finds it's four point six nine would not round that to five point the five to fifteen was added to avoid expressly for the purpose of patentability to avoid the stadium reference well there was a lot of discussion as to the family that had a lot to do with the composition and does it matter that the language that judge prose referred to the substantially greater language only applied to the only showed up in the prosecution history as the later rather than earlier well it's certainly  where you think it's address they use the word a but in connection with the mass ratio because i can't find it i only find it in connection with the competition right the composition there are definitely times when the claim limitations are to the ten to the death one point that's in play nineteen there are no so why should we limit that main claim nineteen two i realize that has to do with the scuff of the not mess ratio but we're still talking about basic basic mathematical principles in those claiming they used two point four three point six they go to a ten when the inventor wanted to go to a ten in the claim he knew how to do it why should we read a narrowing level of significance in to claim nineteen when it's not present there but you present another cla principles apply if he uses a number that a significant only to the one place that he gets along mathematical rounding if he uses two point four well two point four is isn't that going to cover under normal mathematical principles two point three nine for example are you going to say every number that he uses everywhere he uses in this pattern is limited to that number and only in normal mathematical rounding principles apply i would s what i mean why would we i know mathematicians so why would i throw out and say no for all time it all happens normal mathematical reading principles don't apply because one case a virus and some dick to mention something about it a broader range than one point zero but it depends on the context and that's exactly what george recalls did is he looked at the context or what is what lupin is trying to do here is say to do what you want we have to believe to say the prosecution history here makes it clear that normal mathematical principles plain meaning plain language principles don't apply that require something  disclaimer like a clear and unmistakable disclaimer do you think the substantially and you may well think this is do you think that substantially greater language with regard to spam is so clear and unmistakable as to tell us that they did not mean you know concern here is that we're talking about summary judgment of non infringement and you're arguing in construction principles you're arguing disclaimer in the prosecution history you're even arguing obviousness this is all sor mushed altogether and yet what we're talking about is a summary judgment of not infringed and the only way you can get there is to say that it absolutely can't cover anything as low as and we have to assume at four point seven because that's what the the judge assumed for purposes of this case so what we have to assume is that that no grounding principle that could even take it down to there could conceivably apply that's the only way you can get for summary judgment not infringe is that right well we certainly there might be situations where it could be were we ninety nine or something like that where you might say that's close enough in this context but we're down to four point six was added to overcome stale is that technically correct they clearly made an argument about five explain xander why overcame t m but at least in that office action series i didn't see this limitation being added in existence of it overcame their rights and there's not there's amendments in prosecution and there's arguments and prosecution and a nothing they have to be treated differently i just want to do precisely understand the prosecution history is i understand clean  what once again i'm probably being imprecise and it may be you don't know the answer and that's fine but was this language had to overcome stable or was it already present and they simply pointed to it because the difference actually does matter to me but first i would argue with you it doesn't matter but it's my understanding this was the point after the original form but at a point facing the adopted a rule that you have to prove that use of a mathematical principles such as rounding is an industry standard before you can resort to it i don't read that in this case when they simply said that  welcome saying that in that in the in the second opinion where he is when he's withdrawing the honorary injunction or the temporary injunction that he put in place and you're saying that that that there he made a disclaimer finding i don't know that he used the word disclaimer but he went through that exercise to see what the prior art covered what arguments they made to distinguish the priority he then said here's what would happen if you applied dr  it you're bringing that from the wrong part of the prosecution history and putting it somewhere else but but your colleague on the other side argued that it is important that even if they come close they don't actually overlap and they argue more over that if you actually really look at them there's nothing in stand that actually goes above two so that even though there's a range that all the teachings of and then we don't actually have a whole analysis of this and inobvious this type  about a range of one to ten or to one and then a range of five to what i was all the way up to fifteen a while well certainly we all agree one hundred ten to fifteen the one wow they are substantially greater right i mean that the entire range have to be substantially greater can't you have two ranges that above each other but the range is so large that the second range really is substantially greater than the first range because it goes so much further beyond the first range well i guess i'm wondering if this language is absolutely as clear and unmistakable as to carry the whole case because i feel like this language best carry don't  range you shouldn't be allowed to recapture which you have or you distinguishes you from the perch and that's exactly what you'd recall of emphasized in his first and more so in his second opinion  let me first address the san juan case and i certainly agree with judge mallory on this point but the court never found industry practice what i was referring to was the i and i think that case by itself is quite telling because specifically this court in addressing what the i t c did in that case address the issue of romney because that's what happened with the numbers thirty six point four five and it's a court pointed out san juan argues that rounding cannot be used to expand the scope of the coins the quite goes on to recognize that there was no error in that situation to recognize these limits of accuracy and surround to the measured weight percentages to the nearest integer because that's the way the claims read there's no argument that it was recognised that you could measure more accurately than that you could measure to the nearest tenth or are hundreds perhaps but the claimed range wasn't to that level of specificity it was to an integer in this case thirty to thirty six for the range with no decimal point and this court found that the i t c acted properly in finding infringement and it with respect to how close can you be and still be patentable again i want to point back to the this case case where this case this court addressing a range of zero point nine one and due to the argument used during prosecution then held that range the zero point nine one zero but there was about there and as this court recognized the prior art that was taught went to zero point nine one two and this court said we need not decide what range encompassed by about and zero point nine one zero in all instances it can't reach films having a density of zero point nine one two but instance we're taking a patent claim to zero point nine one zero with and about and the eighteen twenty three that what was being discussed in this part of the office action were two things twenty to fifty percent by weight comp and the composition of the final five or eight and where in the hydrophil in age it was at least twenty percent if you go on to the language that's quoted it deals with those ranges that refers back to those so it to me is unequivocal this has nothing to do with the five to one to fifty to one range