district court here in finding that hospital literally infringes the tool nine patents it did so because it did not give the claim the claims are plain and ordinary  meaning one question i have for you is if we were to work for the court on the doctrine of equivalence i can't tell if there's any reason we would then need to reach this question a little infringement am i wrong well but i don't see all of the same products that are covered either way so if i were to affirm on dio we'd for example i would never reach this little infringement question it would be not relevant and well that's true but the the reverse is also true but what makes the particular salt the point your honor is that again and again and again in the remarks that the prosecuting attorney made to the  festo are designed to say none of that we are not going to say that the point of the change is everything that you chose to include in your new term terminology there is there furthering courses of foreseeability inquir point for that reason for the amendment but that's not quite the inquiry once the presumption arises and lily agrees that the presumption arises based on the amendment that was made once the presumption of prosecution history of stop  rises then the burden is on lilly to explain why in this case because really rely on that in the tangential exception the burden is on them to explain why it's tangential and there's another required of the this is likely require explanation but that's not what i told all their explanation and what they told the p t o and i'm going to quote is to reduce the toxicity associated with the administration with permanent tracks to die sodium unless i'm mistaken and my understanding of this technology is probably not up to the power of everyone else on this panel but my understanding of that is it's the metrics it's what causes the toxicity it's not the salt in fact you don't get it until it's this is well so why isn't that since that's the actual words that they used when they made this amendment why isn't that explaining quite clearly to the whole world that it's and the metrics not the salt that is the reason but it's because i think the section in the in the appendix you will see again and again and again i'm attracted to actually was not disclosed in prior art and that's why in that's why we are avoiding the prior art have a truck said they sodium fixes the problem with in a very short paragraph explain that this is to reduce the toxicity associated with the administration of the metrics by sodium so i guess i'm i'm confused because my understanding is a skilled artist you know that only happens when you have a disassociated product in the solution so your hon i wish i could but the point is not the point is not the science in this particular instance the point is squaring up with the legal justification for invoking the exception with the statements that were made every single time as far as i can tell every single time i'm interested a sodium is sort of penetrate said is referenced it's always referenced in the form of dye sodium in that's not explained and that's not consistent with the with the explanation that's being and and there isn't anything that would allow someone to understand that they could engineer around in the way the hospital believes it didn't engineer to run by you by going to a product a salt form of  testimony that was before the district court that will be out from our on call just and also from our pharmaceutical formulation slash chemist expert that said that in this art and the ordinary meaning of a solution of turn into in solution and as it is a cat i end with with a bunch of small and i end with a bunch of sodium well so that that would certainly be covered by the claim and the point that i am making spirit had the opportunity to say no no it's clear as day that that's wrong and here's our expert here's our reference book here's our anything that says that's wrong they didn't do any of that and i don't think that this is a  to me they give general background about acids and bases insult but yes that's a fair point and if there were contrary references you would expect us here to has that i want to get back to us big clear what we're talking about i don't talk about literal infringement don't understand the point and the answer is that the undervote an expert testimony is that the usage in the field is one that is dissolved in same it would be considered an illustration become attracted by sodium now there is no legal rule that says a solution can a negative to charge when dissolved and the testimony from dr penal which is unrebutted is that means it takes two positive charges to balance that emma tricks and so when scientists think about what you would call this relationship between the equivalent but that's not the inquiry under the tension shall exemption the question is what is the reason that the claim was never here the file history shows that the reason it was narrowed is because of the rejection over the  two facts in the intrinsic record that demonstrate that the designation of the salt is changing to that amendment the st is what your more pointed out the discussion of the purpose of this invention is to reduce the toxicity of  is the pema tracks it itself in dissociated form that causes the toxicity the nd point and this gets lost a little but the specification income for defines what it means the float and the definition that it gives analysis would be the same but combined with the reference itself that was the rejection the discussion of the toxicity and the definition of anti fellate the just report was correct in holding that the reason for the amendment don't think there is any extra analysis required because i think you can't look at claim five with blinders on which is what i think i fear is asking you to do the same phrase n t foliate was narrowed to the same phrase them attracted by sodium at the same time in all the claims when lilly responded to the rejection over a scent that from the th district court found from the face of the file history the are sending an issue is the reason for the amendment and if you ask yourself well how do we know there isn't anticipation addiction leap argues that in light of the amendments the claims are not interested when it comes to obviously doesn't rely on the claimants to respond to any of those rejections it argues the merits of the references about whether you would expect to reduce toxicity which is further confirmation that the amendment was due to what of course it was due to the are sending rejection under one of two the final thing i will say here is the patent makes clear that the issue is the active and he followed the discussion of toxicity in the file history makes clear that the issue is the activity fully and the real world that we're all living it makes clear that the issue is the activity the only reason articulating my point well in her joy appreciate the chance to clarify all of the rejections discuss the toxicity associated with them attracted by sodium in the skilled artisan would know that that's about temperature x itself the language i was talking about was in the nd to last line of the anticipation rejection where it says in view of the present amendments and the comments above outcomes respectfully request withdrawal of this rejection and there is no such reliance of in view of the amendments we now believe we are happy in the obvious the word that you have as it with it's not a critical point rather i take your point i think i'm making of a slightly different but i take your point that even if we are relying on temperature to die sodium in the obviousness section that the association of the this way the claim term has a plane in the plane meaning is to dispense or apply heavy trucks a day sodium to a patient so it means the claim term is neutral with respect to in fact the entire claim twelve is a good one to look at is neutral with respect to route of administration it mentions for example vitamin b we know from reading the patent vitamin b can be injected through in the muscular injection it mentions so full stop that's what it means and so if that's what the claims me and i believe that is the correct meaning if that's what the claims mean then hospital does not infringed because his spear in never gives anyone