that is potentially a case dispositive of the entire case if you agree with any of those and that is the issue of whether or not the principle lubricant is disclosed within the ranges set forth in all range it does disclose serum id which the district court relied on and which very relies on what the ranges disclose either overlap or encompass the claims range and  an expert a declaration or expert evidence on criticality yes but dr scott with your expert and he didn't offer any critically testimony on the primary lubricant which is the issue you started with and what you and i are discussing and you have to show don't you that there's something unexpected about the properties of the subject is to make it palatable the distinguishes it from the broader range correct well ok and so i don't read this affidavit as same that this blooming phenomena resulting from too much lubricant was something that was unexpected or not known in the prior or  the the fact that this the fact that this invention came six years after the prior invention which was also developed by any of us suggest but he doesn't say there's anything he says maybe there's a benefit to having this narrower range or not allowing you to two to go about point five and he says that that's desirable because going above point five might cause blooming but he doesn't say that this was an unexpected or unknown property you know owner doesn't have to see the need doesn't have to say that there's something unexpected or are novel about this particular aspect is to the operability of the invention because all of his evidence it simply goes to commercial advantages of doing it the way that he says it doesn't go to operability looming doesn't affect friction let me doesn't affect just as much as blooming or cloudy caps are an issue i don't know that either one goes to operability in the sense that it won't work it will work if it doesn't taste well it will work if it has an odor but it just is not attractive from a consumer standpoint and that's what we're relying on in any event i think that's that the cases we relied on   beyond this in this case beyond a certain point which in this case is point five you will get results that negatively impact on the use of the nih then i have to be unexpected right yeah there's nothing you have to make of a discovery that unexpected there's nothing suggesting it was expected does not matter but you agree with me there have to be unexpected if you if you if you let me answer it this way if it if you would expect that cutting it off at a certain range would create a problem if you would expect that i know but it has to be it has to be that the there is a discovery  is different from the broader g s you have to show that it's different in some meaningful way that is novel on expected now i will say yes but there's no evidence suggesting that it was expected because the judge held very did not have to submit any response of critical criticality evidence the judge not only didn't look at didn't rely on are critical of the evidence but told by basically said very did not critical scott uses words like central to the invention and gloom talked about a problem resulting from it there was no response to that so i suggest that on this record summary judgment is improper i mean that's the kind of thing that a jury should consider if they wanted to if they wanted to respond with a response of declaration they could have done that and said this is not critical this is expected there's nothing in the record suggesting that and i see i only have you want to religion good morning your honour's mislead the court but i'd like to find no for the court one point of agreement between the parties and then jump right into the range issue and direct that concern with you head on and obviously the concerns are well founded and that is the party here today agree that the claim limitation the second limitation of claim one is really the only claim limitation that's in dispute and that is the saturated fatty acids and component in a particular range so to go right to the range issue head on it is our position that either under a critic ality standard or just looking at the clear disclosure of the eight for six patent that there is really no issue with respect to criticality and this is how that goes first of all we have as the court has noted already disclosure in eight four six of teaching the use of point one or point two or point four and call so the most common point so while the language there is at least as well if the dennett fied as the most common point no one but the sentence you're stopping the sentence read as a whole talks a point one in particular of at least two parts by weight or quantities about reese points for parts for weight being the most common warns the total quantity of lubricating engine doesn't seem five part or weight more especially two parts or weight or a maximum of one heart or weight it's kind of hard for me to say that's not a range you've got a starting point and an ending point in the same exact sentence and yet you want me to find that to be indiscreet point your honor we believe it is both so that when you are nice point one with a maximum of one how is that a discrete point well if you read the entire disclosure in context and you have at least point for what you find an example one of the eight for six pattern is a total  in that example you're pointing to doesn't it my recollection is it includes higher than point one five percent of the secondary work in your honor we do respectfully disagree and it's for this reason this is exactly like the para concaved if you go through columns two and three one thr can use one of those alone or both of them and then it goes on after that and says the lubricating agent which is one or more is point one or point two or twelve for release point one at least point to yet at least point four and up to a maximum of one yet on the complete set yes that's absolutely correct but again in a den of find with most common points along with the example one that tells one of ordinary skill in the art that here's  than point one five percent the preferred embodiment you're absolutely correct that is the preferred embodiment and so if it were the sports present president to limit the disclosure to the preferred embodiment that would then be the result but that's not the sports president the court is to look at the full extent of an enabling disclosure and what it says is we have this finite list saturated fatty acid damage that can be used in a specific amount but let me go back to the range issue as well if you're going to believe that what if we don't  opposition summary judgment yes and what i meant by that comment was that that was something we argued did not apply critic ality did not apply because we had these points within the argument for tell you the relevance but i didn't read it as saying they failed to create a material question of fact about pretty calm and that is probably the most fair reading of our arguments below our position was the critic ality doesn't apply because we've got these the treat ranges and we've got points within a range and if you look also at the eight for six out and and eight six three pat and look at the examples in the organic left of properties that they say are are there are  they both come up with an organic left index of the same of one point three so you're pressed our position has always been pretty kalighat does not apply but there is evidence that just on the face of these patents that it's not the you have the burden of showing lack of proof well they have to come back and then show critics ality that was their burden read or court didn't make any findings of perspective he did not what he found it was again that we have that if you ignore i mean the result of this would to be be to ignore as you've noted with the word at least and that we have a long sentence would be to ignore that specification completely and find there's no disclosure at all and so we can have our point one point for at least point to at least point four and the most common points and what they're saying is i can come in then after that even though i've got all of these ranges disclose i can then pat something that is easier to point five percent now there's and there's another issue here that's important too which is even if you get rid of the eight for six patents you can also look at merck ami they've made no argument whatsoever with respect to critic improper for there to be this large disclosure of these intermediate ranges which was not the case and out of it just wasn't there it was one it was one hundred or or less i believe with the number four i'm sorry those  were the heating ranges but there was no there was no disclosure of those points within the range and again with a four six we have it from start to finish all of these very closures and even if you look at the eight six three patent ranges there are not much different than that lease point zero seven percent by way at least you know does not exceed point four percent by weight preferably blips amount doesn't exceed point three five percent by weight so there we have the same issue and you have an eight for six of the primary argument made before the district court and so if we had thought it was that the core issue had to do with pretty kalyan that that was a real issue we absolutely would have free well when you have a chance and you run no they submitted to declarations dealing with critic my definition granted the things that may have been with b p or dictionary dot com is not a very scientific place but my understanding was it goes to the senses and the organs including taste sight smell like cetera so as this patent is directed if it's a critic county is to organize a left dick properties and the only ones mentioned are odor and case why wouldn't blooming which goes to the notion of science nonetheless be something that at least there's a question of fact maybe about critics ality and its relevance to operability when they start talking about gloomy week because your honor again so the claim doesn't talk about at all doesn't it does not talk about odor or off pain at all i mean all we have is one sentence from paragraph nineteen or a few a couple of sentences that talk about limiting it to point five but again we have specifically that that's it and if you look at the face of the pattern the eighty six three pattern again morgana left the property of limiting it within this respective range are not clear at all from the disclosure it's just it's just not there they're not any better than in the eight four six pattern if that's the issue but there's no there's no limitation with respect to the health that is actually a relevant scenario always didn't work as well don't work that was enough to create a question with regard to critic cally so i don't know and those are composition claims of course the company she claimed didn't discuss the performance of the how what are the criteria that you use to measure how well this product worked the patent says we've formulated something that is directed to reducing friction while simultaneously reducing bad odor  six pattern if this eight were six patent doesn't anticipate a saturated fatty acid am and in these various amounts that are then later were claimed by any of us in all this finish my answer if i may be wrong and i can you run well yeah but you can argument is gosh darn it how could that if we have come out the way it did that's the argument you're making i'm stuck living in the universe where it did come out the way it did whether i like it or so you know let me be  there was nothing from dr scott with respect to critics ality of the primary lubricant there was very little discussion of this point at all quite frankly what i'm looking at now is something that says if you limit it to point five a couple of  denise plume that say this is good for ghana left of properties it doesn't tell us why with respect to point five that that's important or not it simply claims the same ranges that are disclosed in the prior right now it doesn't say it's unexpected either it just says this is what happened and again if you look at if we want to go down that path and look at the organic electric properties that are disclosed on the face of both patent it's identical so there was there was very little discussion of this critic ality issue it was again focused on something else and if you really want to dive in here the clear record right before your honor is that there aren't improved at least on the which i didn't reach that and that is the district court did not reach that issue and we suggested this court shouldn't reach that issue there are several problems with your economy and your company has a lower range which is one fifth