the undisputed evidence of the product natural product is not really at issue here in terms of what is and isn't there can't be infringement if the district court's instruction is pi properly or if the be spatially in compositionally separate and distinct if we construed it that way do you think the district starts construction allows it to be an inner sorry if i  and you control the oil but it operates entirely in a hydrophilic manner that would still in french under the district courts claim construction in your view right and that's why the construction was wrong although it can be fixed by looking him and applying consisting of if you take the look the records construction of matrix with anything with a filling in it but if you just take that as it is for now but when you get to the consisting of your plan that correctly in terms of what eleven o'clock matrix can be it can be anything that's got some looks like material in it we happen to think that's not right we've argued that but it's in some sense it's parsing out one too many times in fact  rally follow what you're saying you just are disagreeing with how we applied it well two things he he didn't follow his own thing with structure and what matrix was stressed homogeneous structur well first i'm going to look for any other specified substances inside a granule place and then if i find one like i'm going to conclude that substance must define see his analysis throughout the entire volume throughout its whole volume all volume of the granular structure but somehow that fact is connectivity changed too it's just magnesium spirit and the problem there i he had to take the entire structure what the purposes of defining it is the little elect in a matrix right because his definition of matrix was that that included a lot of other stuff beyond consisting of language macroscopic homogeneous structure in all its fine ok the granule is that in fact he said that several times ok then he said but actually now i'm just going to look at a part of that structure he gave up on looking at analysis where it started with looking for the ingredients and saying well if the ingredients there we must have the structure consisting of is what limits the universe of potential infringing into you good morning and sick leave the court welcome judge use judge middlebrooks downbelow took a lot of time in his case he had a full mark when hearing including watson's expert testified at that hearing we have a claim construction ruling in the problem but isn't there also i mean isn't that give unbelievably broad stroke to your path because it's always been it's like saying a forest is a tree or is comprised of treaties so therefore if there's a tree in the middle of he's talking about the where is that i'm this is on o j and triple zero twenty it's page eighteen of me so i'm understanding you correctly in order for it to be an  no matter if there's other things and it's hydrophilic if it has a hydrophilic it's if it's you know matter of the other thing which seem to allow for that possibility though no because because magnesium steering can has two functions it has a release function two different functions when it's inside the granule it doesn't do anything it's inside a grand into anything when it's outside the granule in the extra granular space as the judge writes in his opinion now you have the red dots as they shouted out recently at the m photographs you have the red dots which which represents is a sodium starts like like molecules and they're in a macroscopically homogeneous structure throughout the tab they interact with the green which are inside these gre matrix that is controlling release of the masowe meaning which by the way this is a typical formulation because it has a decent ninety five percent of active so into my understanding if i would just listen to what you were saying here is that the  well i think it should be excluded it's not part of the matrix for sure it sounds like then that even though you oppose having the separate a distinct that you agree that there have to be two different letters correct separate right yes what so you agree that they're separate that they're what they now the word separate doesn't appear anywhere in the claims that's why we say you should even read that word it's already there but distinct appears nowhere in the intrinsic record now what does this thinking they say it means physically overlap is it's too much left to make them not the pretty well the well the overlap mean it well i don't know if you if you question means by overlap mixing if you mix right the specification itself recognizing that that's already known in the art to do that right now how do you know how much is enough within the context of this clay you have to be able to control the release of them salming and meet all of the other limitations in the important were watson is only trying to focus on one limitation and pulling it out and saying you know abstract this is just too broad well it's not too broad and it has to be read in the context of the claim is in its entirety and dual structure in the proof which i guess for as the pictures the your microscopic blowups the only proof in the those two nicely separate activates that are not us it's not a graphical depiction it is a photograph that is real evidence of the real product that is the watson product which looking at the end and by the way they appeal have not challenged any of the factual findings the fluff on the testing whether the testing was right wrong or not and the judge's opinion has a lot of facts findings in it and so they are all they're not in dispute breast and again we're talking about maybe less than five percent of the experience it's ninety eight to ninety five percent is masowe me so so just picture a tablet and it's got all of citrate now watson took the position right from the beginning when we just added as a conventional lubricants are going to be in order to look matrix well that's what they said but when we did all this testing with the experts the proof is in the pictures the magnesium spirit went migrated through poor's or as in the sound and got into the inside of the granules and that that scientific fact coupled with and let me just tell you what was troubling me here about the district court's opinion in the claim construction was that it seemed like the way the court did the claim construction and the way it's opinion was written all it did was identify some kind of interior portion and say there's a life or so like element in it and once there's one like that to like that's enough to be an inner life it's like matrix and then it look outside and said well there's one h element there and that's enough for it to be a hydrophilic matrix but that nessus that wouldn't necessarily operate in the same way that you're describing the way it should operate just because there's one element it could be because obviously in this one there's both in boat so i'm struggling with how to confine the district court's claim construction is to a proper articulation of the intention i think evidence those relying on this is no actual evidence by the experts who are opining on what's happening here with the watson formulation as explained by dr sinko on cross examination exhibit and found in different locations within the don't understand all this in any operation and the facts seem to suggest that it operates in that manner but what i what i have trouble with is the claim construction and it doesn't seem to me that the claim construction would rule out as infringing a and it's a three dimensional structure it is a distribution if you will of all the magnesium spirit molecules that because of their spatial relationship to the sodium start likely which is similarly isn't dispersed with in the lipophilic matrix which it isn't if it's only the magnesium series and that's not consistent with i think when something is dispersed in something that something is not part of what is dispersed and in other words process that's what is happening in the watson product that's what's shown in the pictures which are in evidence you're aware of that and it's also in the example i'm sorry if i'm being dense about this but i will going back to your agreement that th confusing here because you keep going back and forth between the grand you are not is that why aren't you saying that the granule is a little matrix because it has been the selami with the magnesium steroids and enough measure to make the granular operate with  and then the elder stuff is the hydrophilic stuff with the far end of the product well one as a matter of clean construction the word granule is nowhere to be found claims was never the mansion is not limited to granules someone can come up with a different way of making their formulation that doesn't granulate and then they would argue because you have to have granule i'm outside at thank you very much  undisputed of the s s g and magnesium star eight in distributed all within the granules and also outside the rentals all throughout the tablet point is you can start with one but he says it acts differently in one place than it does in the other and that distinction creates the matrix structure because of that it acts differently when it's in one place and then the other yes i heard to argue a lot of function today and this the problem but they also campaign magnesium sarah right because the claim isn't to all enter the fuck actually it's just those consisting of and then there's a list of look at philip ingredients the fact that this has now that's the problem consisting of doesn't make boundaries consisting of help to sort out which lipophilic major cities are within the patent and which