it's to take a morning morning to bed please the court leave jail supply market balance there sought to extend the life of its as a lake as a franchise by getting a patent on a formulation that encompassed only a very specific combination of exceptions it could not have passed as about what representation for me by your client before the f d a the district court actually referred to some of those in her opinion which i think is public information so that is that clear for purposes of our discussion here can we talk about that  the district court correctly concluded that you can't get from the patent specifically example to just what players an expert tried to read to get penetration and the answer to connect it up to less of them and triglycerides you can't get that out of the patent the district court was exactly and in particular if it doesn't do so at all what are not very clearly that extrinsic evidence can do that including most importantly with the chief was referring to before your own and well let me take that into steps if i may because i think the answer your question is yes but you don't need to agree with me in order to rule for our line in this case precisely because i think that this gets back to my colloquy with judge moore i think that there is more here that this this pattern actually teach it does not only does it not say anything about function it suggests that the function is something else and the courts cases clearly do say that when the patent just and the intrinsic record disclose one function you can't make up another  district court's opinion i play in construction you'll see the dispute between the parties was about iraq and this came up also in the dispute about what the prior art shows where does the nano emotion stop and what is the hydrogen up again that i think is the key the key relevance we where do we get out of the intrinsic record the function that that this is performance at there to the two places and one is the fact that more or less it then more likely to be an emotion so that the second is if you look in the prosecution history of the  the district court made its factual findings pursuant to a misallocation of the burden if you look at pages thirty two and thirty three you will see that the district court held ultimately that it could not rule out the possibility have to you have to same do the same thing or you can't get the end up until you've identified exactly what you believe less than and triglyceride do and he did let me ask you oh my goodness sakes did did you make a misrepresentation this is perjury before the f d a absolutely is the function and if we thought incorrectly that the function was x that does not make the function why i said and that is what you do think that your representations to the f d a were incorrect we we think that and then have you corrected that because it's really important when you found documents penetrates the f d a knows that your honor because the the bayer n d a clearly tells the f d a exactly what function and you came in and told them the opposite when you make a misstatement of fact to a federal agency you are obligated to correct it if you later discover your statement is a misstatement of fact so if you're standing here telling me it's a misstatement i'm asking you a yes or no question have you notified the f d a of your inaccurate representation to them i believe we are in regular contact yes or no i don't know i don't know answer to the specific question you're answering asked me wonder because i do not believe that we are that we have failed to carry out any such do any duty ultimately this this goes to the legal question whether a statement be an hour and can you give to the other side's product a function that it does not have that they did not think that it is the role that state that played in this litigation was and is one piece of evidence in a pool of various kinds of evidence i think it you know the respect i think it is not legally relevant what you know whether we concluded that this probably was a penetration answer based on the fact that we prepared and we prepared a generic formulation using extremely broad coverage and all it did was to make a finding that your particular faith was an equivalent and in the course of that so as to the function there is enough evidence and i could be said even if they could perform the same function whether they could be said to do so in the same way the district court said that it was not going to get into to page eight thirty eight it was not going to get into a particular subject in this case i said in other words it discounted our evidence about weight by saying it wasn't going to get into the sub mechanisms question but then they didn't apply a hypothetical claim that reflected the breadth of the equivalence theory without consideration of sub mechanisms that it was applying and that with the way in which two particular except the ends both operate if i may answer the question of the scope of the equivalence theory absolutely has everything to do with the breadth of the hypothetical claim the breadth of the hypothetical claim the coverage of the hypothetical ecting a great circle was equivalent and so the district court set of this court said either that a plane isn't zero or sixty it's zero to sixty it encompasses the entire range the coverage of the equivalence theory and there is no principal difference between any the question about the f d a correspondence because they are under a court order to update us and i was recently as wednesday there's been no representation from the f d a that any representation they made to the f d a is wrong now i tried with a five day function finding that it was the evidence but there's nothing in the patent that ties lecithin and skin penetration nothing of that ties them together well there's no explicit statement but i think judge words you pointed out that whole pattern is not penetration handsome and the reasoned opinion we disagreed with that particular findings but it almost doesn't matter because the evidence was so strong in favor of the function if you look at their own admissions and also that this report's way finding may disrupt the limits of the strata corn and water and so they all function in the same way and that dictates the function result because what else could they be doing there was other evidence it was publication evidence and so forth so there was a arguments you mean about function wavers that otherwise define what you are claiming to be equivalence of your claim elements ought to apply and you know you can't have it both ways you can't say everything that x is askin penetrator is so next case you could go after a different one right so how are they to know in formulating i mean you know some terrible thing for the market the competition and so how were they to know what exhibits are in fact they're going for it because in part the whole point of ahead and figure out how to compete well i think first of all we have a record in place right we've taken certain positions but i think that we don't want is another case the same way we don't want to do this when we take a look at that particular chemical see how it how it's how and what the way line because practising the prior art means something right there is some universe of scenes which are encompassed by it like that gulf oil and sporting goods so what i mean i guess what i'm trying to figure out is really what i'm trying to get at with all of this is how broad should a hypothetical claim be drastic because if you're going to go after every single penetrator just like i said broken mirror state then we ought to probably be thinking about that right when we're addressing that hypothetical claim if your argument is every single skin penetration enhancers that functions in this way every single one of them is within the scope of what we ought to be able to sue for infringement for dio you purposes and that is to some extent the nature of your argument functionally oversell then why is that not as your colleague on the other side says exactly the way we ought to be thinking number dr commented before that ways because it depends on the particular ticket if it functions in the same way that would be the consideration of a one if it gives it the same result that would be consideration number two and so before you decided to bring another case you have to look at both the way and the result does it give the same unexpected properties that is that the claimed formulation and i think you have to look at the whole thing before you decide to give a case and but i can say unequivocally there's nobody would have an intention state has a brother i don't even know what we'll call him but he's got a brother they're identical everybody knows these two are actually interchangeable and supposed the brother of ice that he's disclosed in the prior art this is just different than ranges so let me ask you suppose that your claim covers zero to fifteen percent and less that then and you want to go after someone under the doctor of acquittal and susie outside that ra thank you your honor i want to emphasize that it's the other side's burden the plaintiffs burden to prove that they're that the correct hypothetical wing does not ensnare the priority and the my friend said that the district court appendix is the testimony of our expert that they're in the same class of chemical penetration and answers and fifty five seventy nine to eighty is a paper named barry which refers to d m s so having an effect on needle and you don't make any argument that if there is a narrower theory of equivalence like him phillip water soluble