agents the parties of a few claim construction disputes that are addressed in the briefing today and i'd like to focus on one of those terms as the enhanced term which the district or it found on it's an excellent question on the intrinsic record the term and handsome was introduced in the prosecution history in response to a one of three rejection the examiner found their mere additive a fact but that if owner could show it combination directed to greater than additive a fact and the one of three rejection would be overcome thought with one of these other chancery chains well i think those two points go together and i think the point is i believe the record shows that the examiner wanted to live or said it's to show that any number of these human therapeutic agents could be combined as the panty argued however of the research to not focus on the specific claim combination which distinguishes itself by having we are you greater than fact here the applicant attached an exhibit a that contains a series of materials that reflect the will science at that time in particular additive this act when you're combining these ingredients together as i didn't quite see that i didn't see that and say there's something synergistic you know one plus one equals three right bri remaining life span from eleven to forty weeks an increase of three hundred sixty three percent banty pointed to this as evidence satisfying the examiners rejection  even that article however notes that further clinical trials would be required to prove the effectiveness of the combination and that is consistent with the p expert however to be clear a less than additive combination would have to mean that the components of the combination actually inhibit each other you end up with something a little bit less than that it yes that's in the abstract that is possible i don't believe that's what this person claims is the both specification and the inventor testify combine in a way that as the prosecution history shows have and a fact that is greater than the generically disclosed and it is combinations of livers that so yes become back to the live but to find that the pan claims a less than additive combination would be to find that there was no invention at all and other words it would be contrary it would be difficult to read in light of the record that the pantie intended to cite exhibit a showing the results that blew away  investigators and why you that those results were claiming it less than additive combination but are invention something that diminishes the effectiveness of each of the components that would not be consistent with  definition of less than additive that as of last the narrative combination would be one plus one equals one point five so in other words the components each component would be diminished consistent with the prosecution the the notion here is this combination is better and better and what does it mean we don't know they they they argued that the results they got in  bounds of what that enhanced combination is has to be known and with reasonable certainty by persons of skill in the art these claims don't have a reasonably certain scope they do not provide the notice function the claims have to provide as to what's in and what's out nobody competitor want to stay away from these claims of wanting to not fringe has no means by which they can do that with any reasonable certainty  if they had simply set your own let me let me put this in perspective of the situation one often finds in pharmaceutical cases whether it's a combination claim or or not whether when there's an obvious debate about whether a given drug could be a combination is a factor of or is a non obvious or not sometimes a pat they will put in evidence are for example synergy to try to establish non obviousness the put it in as a secondary consideration and the examiner may find it view of the synergy showing as a secondary consideration that the claim is allowable and they will allow the claim has the showing of synergy in that instance we're used to get the claim allowed to establish an obvious that is not what we have here they wrote a level of enhancement into the claim and so you happen to practice imagine one has to achieve of up twenty percent and then when i combine the two are i get a cure rate of thirty five percent that's a nice improvement it's increased which is what your outcome with the combination than with either drug use or luck so in my hypothetical the combo that achieves a thirty five percent sure rate is clearly a better outcome than either drug a lot it is fully within this broad notion of enhanced of a better outcome as is described even in their own alternative definition aren't they conceded that this claim when extended to these less than additive effect which are certainly not excluded by the claim is a definite and that's judge entries relied on that representation relied on that concession that they made to him today article which has become kind of the foundation really of their arguments that the claim does not extend to less the negative effects of this this argument wasn't made to the district court made for the first time when he said we know when he said he was blown a bit blown away by the results that it can't be less than additive because you would be blown away by a less the negative effect well that speculation that's just a trainee argument personally as a patient and perhaps as a doctor in my hypothetical when you get a thirty five percent cure rate instead of twenty as a patient i would like that much better and i like my odds better and i would be perhaps blown away by that does that mean that it's no longer less than additive just because i'm blown away by it and i'm and i think i'm thinking of this court's statement in interval licensing where it said that a claim is indefinite if you leave the skilled artisan to consult the unpredictable very good readers of any one person's opinion and that's what we have here we have the patent he consulting the vagaries of drug or gruber's opinion that reported in the usa today article no data no data to tell us whether that is greater than additive additive or less than that it's actually even more opaque in the same cancer and he had a patient who survived for eighteen months after treatment with a little mite alone so that seventy two weeks as opposed to the forty weeks median that the d rely on the concession that andrew was made before the district court he interpreted the claims correctly good system with the intrinsic record they did not make any statements indicating when they made their touch on one other point very quickly in my one and a half minutes here on you heard my colleague mr griffith talk a bit about how to read these plans as a patient as a doctor and i think that calls to mind the problem that we have here that we do not have the perspective of a person born or is going you are in the record before the district court and that was an emission rights and that was reversible error by the district  the objective of combination chemotherapy it would not be long before the word synergy comes up there's a term that has common usage in the field of medical oncology is one that medical oncologists persons  i understand by analogy this court upheld or that person of ordinary skill in the art in the pharmaceutical context would understand the meaning of effect of amounts that regardless of the fact that effective