then claim section seven and ten o'clock ten well we we have a kind of an unusual situation here as i see it and that is that there's a pretty good argument that the specification was limited to s despite that form of intensely clear disclaimer that to come along through the prosecution process and say you do over now i'm going to just put in a claim to alkaline salts and and the examiner for whatever reason that doesn't hold the patent into that disclaimer i mean it seems the public has a right right to rely on it so what do you do you really think that would be ok i mean not true unmistak produce one second tier answer to judge morris question so that i'm clear about it when when you say that you couldn't do that under hypothetical that you couldn't expand the  beyond what was in the specification where the specifications perfectly clear that you only claiming the sex you mean you can do that is a matter claim construction or you can't do that as a matter of written description genus and to the public by reading the prosecution in st it's clear with that those words meant they would be given their plain meaning and you know you may well think that we're limited to these six but that's something that absolutely it would make it seem like disclaimer irrelevant to claim construction ever under any circumstances your thing as i understand it when you during the prosecution knew comeback and clearly intended to do something broader that that dis will you please stop nodding sir you're really distracting it doesn't try to entire argument please stop so it doesn't exist exemplified by these four where in the list magnesium and sodium and then it says exemplified by these four  are several examples of different channel times including zinc copper several different forms of ammonia since this patent that have been made using them process so this is the disclosure is broadly  isn't that of a striking communication to up a world of readers that would think if you could do this with some you could do the do it with with all a little different than how you phrase it but i'm wondering if you're nonetheless thinking it it's a fair characterization which is to the average person it might look like you are claiming  and the one that made you different friends and purposes is an identical substitute for magnesium and everyone knows it is just more expensive so it isn't the one that you would have grabbed off the shelf and so it's your i guess i'm now the people all of us unfortunately isn't really in the record right i'm once the concert was damaged or might be predictable forms all but i wouldn't be predictable to make one of them was there well no not correct because if the software is the negative and handed then all of the evidence the record shows you that that will work now well some of them are toxic right oh sure yes some whatever it is that everything covered by your riding interpretation of the crying would be within cover the full right it could also not cover the requirement of suitability that you need to import into the phrase pharmaceutical formulation so i guess what i want to understand what the record is  runs right well but what about somewhere between commercially viable and would have a desirable effect within the first five minutes after you took it out of the test tube is your notion of statement that the claims are fully supported by the specifications or statements and we're not going to do so you need not or is it fair to read those as reassuring the examiner that there's not a written description problem and that the claims that say don't work these amendments no you don't use new matter they're fully supported by the specification why wouldn't you want to read those we'd assurances the examiner is limiting the twins to the second because it in other words a necessary component of claim constructions on there is still room for reliance on invalidity considerations as part of the claim destruction process for the words of the panel used their work altering considerations extent judgment we will not be challenging the validity in the future my point was that that is not a waiver of raising the validity question with regard to the altering considerations just looking at e g let him sodium potassium magnesium calcium and ammonium doesn't he she they're implying that those patents are not limited to those well so the court  a novelty arguably zehr the optical purity i mean that's what is really nifty about that is that right ninety eight ninety nine percent pure when you couldn't get more than ninety five that are just closed and there's actually a very very good reason for that they were looking specifically for salt that were resistant to resume his age here and in fact under typical  test and that was performed on the sodium and magnesium salt now if the question is is there any express statement somewhere in the absence of other salts for some particular reason can you just walk me through  everything in the middle is going to work to it isn't that exactly why the examiner accepted their argument that by demonstrating these to work the whole genus is supported because the examiner said you can only cover what you can give me data to show will work instability or unsuccessful working that that's where you would likely see it occur and then all the others are much more closely related and likely to behave more predictably so so that's why i think they did but tell me if i'm wrong i'm an  generally didn't the applicant make it quite clear to the examiner his remark which began on thirty two thirty three or one in particular on thirty two thirty three states is not a particularly long document it is nine pages in length in total understanding the end of the new playing language of their governing standard that can there be any serious doubts that when they went in and responded to the rejection at first they everything to the s and p air and then they said we want something broader and even if one could argue about the exact prosecution history language the claim but i think that ted's trying to get in the point of we're trying to ascertain what the examiner believes he was allowing right because that lends some insight onto at least what the applicant intended to seek and what the examiner believes he was allowing when he issued the words alkaline  so i'm with you i think clean differentiation by and large is a very weak doctrine that has limited applicability however for purposes of simply looking at did the examiner think when the applicant said the genus of alkaline fall they were referring to only the six it seems like there to me that they were not believing they're putting forth the synonym at that time and nor did the examiner based on the prosecution history now whether we ought to limit their claims to that based on disclaimer is a different question but it seems to me to be an unfair characterization