first i'd like to talk about the district court's treatment of the prosecution history distinguishing the monolithic structure of the one seven seven colombo and i'd like to shift gears and talk about the district courts treatment of the your honor aren't the construction proposed by a protect was in no way structured to infringement it is the correct construction in view of the intrinsic evidence and the extrinsic evidence now did a protext design it product specifically to in void infringement under the correct construction yes so we adopted the construction that is correct on the intrinsic record and that construction necessarily leads to a finding of non infringement but it's not an after the fact litigation contrived construction and we can go through the prosecution history and will demonstrate that it's not an accident that texas many tablets don't have a everybody agreed the district court counsel for a palace it protects the experts the many tablets are uncoated there is nothing on the outside of the tablet so the ordinary meaning of extended release coating would require a coating so the ordinary meaning of coating would be some type of layer on the external surface of a tablet that provides for extended release and dr could not said that but here it's not just any extended release eleven forty one of the joint appendix during the prosecution of the related to application discuss the extended release membrane coatings we're talking about here and he said there are two ways to make them you either add a plasticizer to the polymer and then it coalesces to form a continuous film around the score or you spray it on without a plasticizer and then when the solvent dry ice you get a i'm sorry it's come to and you look at lines twenty seven through thirty one and this is the background of the invention section it's discussing a prior reference to a report and it says there that the polymer is applied between five and seventy five percent of the core surface so when the inventor wanted to claim something a little less than a continuous core a continuous coating they told you they said right here to seventy five percent of the surface is covered everywhere where they talk about the embodiments of the invention they talk about a complete covering or a continuous covering and that's consistent with the prosecution history and so we believe that the coating has to be continued yes and then if you look at the district court's opinion the district court said the ordinary meaning of surround is to enclose on all sides so the plain language of the claim require the coding surround the core was that the ordinary meaning are one definition from the webster's dictionary it was the definition from the webster's dictionary that the district court chose to put in her opinion and so we we agree with that meaning it's consistent with surrounding meaning continuous it's consistent with the prosecution history in the beginning of the declaration that plaintiff submitted during prosecution there's no evidence in the intrinsic record that  the one you're referring to are completely surrounded which is the typical way you make these coatings and then when you go to the mcguinty declaration on pages eleven forty eleven forty one and this was submitted during palace he's talking about the extended release coatings of the invention and he says there continues it's a continuous film which would support going all the way around but he also says it's  it has to be that water can get in and water can get out but that doesn't mean there's a hole in it means that it's permeable if there was a hole in it with the invention for its intended purpose it depends what particular type of coding you use you can apply certain hard coatings where you would put holes in by design because it's not a permeable coating but that's not the case with the type of water insoluble polymer membranes we're talking about here and all of the technical documents scots membranes describe them as and circling a cork and tellingly although the district court said surround means to enclose on all sides she specifically rejected the idea of continuity we view that as a claim construction error and when it's correctly construed you do need a continuous coating and then her infringement findings she had opted dr muzzio as testimony where he says the polymer covers significant fraction it's predominantly polymer he admitted appendix eight hundred ninety three that he made no effort to quantify how much of the  respect to surrounding or continuous i already pointed you to eleven forty eleven forty one that's the mcginn of the declaration where he's talking about the extended release coatings and he says that there is a continuous fill so we think that means surround has to go all the way around and be continuous it helps in a second way though and that's at joint appendix thirty three twenty five during prosecution the applicants distinguish the the examiner rejected the claims over the colombo one seven seven patent and that teaches a matrix there's no dispute that teaches a matrix and the applicants distinguished their extended release coated be from a matrix and they specifically said granular it's that or compressed in the tablet form are insufficient to anticipate or to render obvious each of the beads is individually coated with an extended release coating the granule it's of the one seven seven patent by contrast are compressed into a monolithic structure and that was those were the words chosen by a palace there was no dispute at trial that a monolithic structure guess it's your position that it still is helpful in understanding how the claim should be interpreted it is helpful and it it's not a disclaimer because i view disclaimer as when the ordinary meaning is broad enough to encompass something and the applicant says no no we don't want to include that that's a disclaimer when that click and says our invention is this not this they're making a distinction but they're not something that otherwise covered and here we have that situation they're just telling you what definitional it's definitional rather than a disclaimer of something that would otherwise be covered by the ordinary meaning and it's not just our view that the prosecution is helpful if you look at the district court's opinion at page ten and ten no thirteen the district court originally didn't consider the prosecution history in reaching her claim construction but after trial when the prosecution history was presented through an expert she then said that it informs the court's infringement analysis and it informs the understanding of extended release codings so clearly even the district court thought it was worth considering but then  strikingly she says nowhere in the cited prosecution history really terms membrane or matrix system used not in the one seven seven patent or in the prosecution history and then she dismisses the prosecution history the fact that it doesn't use those words in high gerba doesn't change the fact that they distinguish extended release coatings from monolithic structures which everybody agrees are major cities so the district court never really conducted an morning your honour's john lame from fish richardson from the balance on the claim construction there are two points i want to make i'm sure you have questions too but we do have when i first read the that claim construction sounded reasonable to me but reviewing it that claim construction order and that and the opinion i couldn't find any intrinsic evidence supporting that that a coating is a quote layer of any substance applied to another in fact it sort of looks like the district court in that definition from a dictionary that wasn't crawford and certainly exactly the definition court no i got that definition somewhere other than intrinsic evidence and if not where is it well here importantly which  the judge took words from the various proposed ordinary meanings from the parties and cobble those together into a definition that was somewhere between the two parties proposed ordinary meaning definitions what is the ordinary meaning of voting and the context of pharmaceuticals why isn't it something that goes around a core rather like an  says for example a matrix with a color matrix system where you have this dry coating formed by compacting very very small polymer particles onto larger parties agreed expressly that that term simply meant covering in the context of these patterns would approach the skilled in the art take the term member and as used in this in this industry the pharmaceuticals and say that it simply are quoting a coding or going for a covering of a covering well i think they would because that was what the parties agreed and about these questions you're asking about i guess my understand that only agent in construction and one of the first things they do is we look at the plane cleanly and that could be the words themselves that are being defined but you also have to look at the other i understand that but sheer your honor the parties who are sophisticated about the technology agree that was not the case and they they're saying that they agreed that it's not a bell surrounding a core a drug me why i'm not supposed to look at the words that are surrounding the term that is on appeal which is extended release coding ice and i look at other words in the claim to try to understand what that means well i think that's the law that you should look at those other words in the claims which outer right i mean those are kind of the definitional words that differ in their construction from your proposed construction right the yes exactly but in the work and but i would point out that we're continuously is never used at all in the brief that the prosecution history is irrelevant it's in that district court said that it was never joined in this discussing whether the claim language would exclude and the applicant disagreeing and then that disagreement not being resolved in the applicant moving away from that argument and distinguishing the prior art on another basis that's the fact pattern ecolab that's the fact pattern in m and under in those cases those were disclaimer cases they were but this is a report about just whether it could relate to claim construction happening just that the claim is traction but maybe some evidence that would support the claim terms based on the prosecution history of those eight years and there's no clear disclaimer so you can't look at it that's i'm saying that the proper analysis is under the disclaimer standard because the your point is that the only way that the prosecution history penn relate to claim destruction is if there's a disclaimer just to make sure we understand your position in this type of case with this type of fact pattern like amigo lab and mit where there's a difference between what the applicant said and the prosecution history and what they said in the specifications and in those cases and especially in nice from the core expressly found that in those circumstances you don't need to display more but interesting pays ten forty eight on another claim term the district court said the disclaimer standard was appropriate but again the the court said in the first claim term it wasn't disclaimer case in ice from because the described in palm six is exactly the type of brain the let's that after text makes they combine the great controlling polymer which everybody agreed at trial is what causes the extended release with the drug precludes someone from putting the center least coating on those types of granular sir form but on the other hand the specification certainly doesn't say that you must indicate in any way specifically that in that for that type of matrix rather severe and i used core right if you look at palm five in that language is talking about another type of formulation where you have these film it's describing a formulation the combines the rate controlling polymer with the two to form the granules and that's exactly what app a text does whether you code that later or not that that's as i see it i don't think the i have two points the first one is council pointed to column six and then to column seven for this treatment of what they say is polymer mixed with active and that that can be mini tabs and they say that's what the texas doing but if you look in that same column seven lines for through fourteen tells you in general it is desirable to prime the surface of  extended release membrane coating and then it tells you what line eleven the membrane coatings can be applied to the core using any coding techniques commonly used in the industry when you read columns six and seven in their entirety then and put th comprising a membrane they didn't claim any systems that don't use a coating their patent doesn't describe any extended release systems that don't have a membrane coating except in  when i'm sorry in column one the only discussion of the matrix in this patent is column one and fifty seven where they're talking about combining drug and polymer to make a matrix and there distinguishing the prior art it's clear that a matrix is a different type of system than the extended release membrane coatings that these inventor issues now the other thing i want to discuss just briefly is the issue of covering and that somehow this broadens the claim to get rid of membrane and suddenly you can have things that are coded there just make sure sees the district there was a disagreement about the construction of membrane coating the the parties proposed different definitions but the claim says it's a water insoluble polymer membrane surrounding the  leaving aside the word membrane it's made of polymer it surrounds this core and it's part of the coating that's what the coating comprises i thought about what other words you could use for a membrane if it's a covering or film we  weren't suddenly saying you will limit a membrane from this claim and it can cover major scenes or any other type of extended release system it was simply a way to try to provide meaning but clearly the extended release coding has to be a member well there any other questions no thank you very much thank you we thank you already for the