and in the case of bad waxman the act looks at the actual product that will be marketed and that did not happen here the lower court committed a number of legal infringement under two seventy one the two seventy one now the errors there were many highlights the court found the hand manufacturing specifications to be irrelevant as a matter of  that's clearly wrong the core secondly the board read out of the claims the requirement that the modified release materials actually had to modify the release case and manufacturing specifications are irrelevant as a matter of law we can see that in the appendix at twenty two of nine to twenty t ten of course that was simply not correct this is directly contrary to glaxo and as a result the business record did not consider all of the amendments to watson approach here to look at the court or the coated tablet because it seems to make a difference in terms of infringement you know our position has always been that that this product that was a pattern was directed to a finish material exactly well because he determines what all right so in the end when the court did not consider our manufacturing specifications our manufacturing specifications we have a requirement that the target for pressure the target for pressure is fifteen k p and there's a manufacturing spec that says d they were approved worldwide they were even approved in the united states they simply hadn't been marketed by pfizer laws so that was that's not and i met me there and there was  fifty with no room no really no five hundred at five hundred milligrams but but the key here is that the dosage the daily dosage and the recommended for a patient to take two of those four times a day had the target of four thousand patent claims say six hundred fifty milligrams if you take two of those three times a day and you get thirty nine hundred milligrams right smack in the middle of the prior but the prior teaches now that's man that's math that's not invented as if you know the tablets themselves in the body are not any different than those five hundred milligram tablets from a bioequivalent standpoint the only difference safe in point two is that out of the water out of the body water test which from it ther they were tested in four different labs every single lab showed certain of the samples met the dissolution limitations and in fact two of those labs were watson's old labs their internal lab and a lab they hired their expert witness was expert witness looked at those test results and he said yes they meet the requirements of the patent place so there was no dispute the mathematics you can't dispute it those samples tested commercial samples estimates of seven out of three hundred fifty events and how specification is it different fluids simulated gastric fluid we tested actual product samples those samples showed infringement up to at least sixty percent of the time for certain batches by their evidence and if you could are evidence up to multiple samples tested and the evidence was that up to sixty percent of certain batches undisputed evidence infringed and yet if only sixty percent friends that does presume that others don't meet the claims but they're not allowed in french at all and they i don't think there is a i don't think my memory judge larry is that they have a specification and that's greater than eighty percent and i've met that set and it's tested and similarly gastric slit that wasn't an issue that was litigated because we'd actually products to allow or production of up to sixty percent of batches with infringing samples shows that under snow beyond the scope of their approval to cut this infringing formulation we just had to rest and today what's the effect of the amendment that  the testimony says he isn't repeatedly says can have an effect can have an effect it doesn't in my view say it doesn't have an effect you would agree that the claim construction requires that it doesn't have an effect testimony and it seems to me it's dealing with him rather than those that's what i understood yes i heard did you agree with dr moran i did not would you explain the basis for disagreement with dr moran referencing p s three eighty one which about which he testified in various cases he so in my opinion it's not just the color coding because  that there was a modified release material and they can it's unfair to point to an isolated snippets of testimony that don't reveal the record as a whole you pointed to test here you are practice i just disagree with the reading of the testimony i think it's very clear that dr williams was offering the pinion of infringement he wasn't saying maybe in french it's you saying the in friend his opinion what this limitation was mad there was be able to balance that with the absorption of the active ingredient such that it got into the bloodstream at the same rate of an immediate release type formulation and therefore it was the best of both worlds that the type of blood absorption of an immediate release while leaving side at it's not of the port specification of a drop product what's important are dissolution pass like as the things that are going to simulate so we had a with counsel is that when we talk about things that we said about about the modified release materials are whether they were or they weren't weren't  you have to understand that well again what we were concerned about in our past and then are and was how things react in the body these modified release materials that you see  being claimed in this pattern relating to the water dissolution outside of god and one of the arguments you frequently hear with this whole pattern is they've behaved differently whether it's outside the body or inside the body so what we have sad relates to in the body not not the dissolution profile that you see and in the past when you measure according to the u s speed twenty seven that when you follow it it's in with claims it says measure going to the us p twenty seven and it requires the measuring the six samples and in which is a scientific method requires that you look at six of them and had you tried to get a uniform result one one test one measurement does not give you any sort of reliable