intent and nd we have to analyze whether that intent is directly relevant to the equivalent of issue here well and there's a there's an interesting discussion of policy back and forth on this case and this is kind of an unusual case but the backdrop of knowing that there's a real strong no dysfunction in that even if the credit everything you say about why that you're in the circumstances what his motivations were her motivation s if those if you choose with specific language changes to its presley claim or brain in furtherance of that motivation why does that that the motivation may have been a little different or not directly well i think that we were considering the public notice function we have to consider who is being noticed you know so here this is a drug patent supposed to provide notice to competitors and we have to kind of consider here th to institute i can institute for him whatever that case was there you know you have to look at the rationale behind them that's that's what the case law says we have to look at the rationale and i'm sure that i was to avoid the reference yeah  you know the one suction cup in that vacuum device and i can provide some background in you know what you like but the rational ways to distinguish prior are based on the source of the vacuum right and just because the plane was amended in a way that read out is a matter of lit one of those options and it's quite clear from the language what's at stake here i mean i see a distinction to be drawn between the cases you've cited and one here so how do we get by that here the language is there's no question the line we can see clear so if you're on the receiving end notwithstanding the drug companies may be pretty sophisticated and you're looking at the prosecution history it just seems like an unreasonable amount of effort to require a future business holder to look at the motivation and then compare it to the claim language here there were several stages of the amendment right some  and it just seems to me striking how much effort and speculation it would take on the receiving end to get to where you want to go i mean i disagree that there's much speculation required i mean we look here i mean there was one single prior art reference right which is cooper and cooper expressly says particle size range up to two thousand right and we've looked at you know if that is i will acknowledge there are there is some complication at the examiner didn't seem to understand the argument we're making throughout the prosecution and if you look at the record the record you know says the examiner rejected because he said ok cooper goes up to two thousand you all are within two thousand but then the final amendment didn't actually cure that objection right there is still an overlap between the range hawkeye cooper and the final range and so if you're competitor and you're looking at this and you say ok i look at the cooper and that's not that challenging it's right there in the  you know again particularly considering you know that this is a sophisticated company that you know that is investing time and money into you know development and locks and formulation i mean it's interpreted in the prosecution history and looking back and forth and use a lot of distortion and again the bottom line is irrespective of your goal you have choices how  agree as as litigator i mean i think that every litigator wishes they had a time machine and they could go back in time and rewrite claim later on you know and every prosecutor wishes they had a crystal ball to look into the future but like the supreme court said festo is that we there's no mean this is all we do is read the examiners reasons for allowing you know you just have to really even as a competitor read that you know it's the examiner lays it out very clearly she says look cooper teaches up to two thousand but cooper teaches a narrow range these know demonstrate the broad particle size range and i don't think it's that i mean it's all throughout the prosecution history there's i mean certainly you know some statements that you know are challenging but this is not you don't have to look that hard to find the rationale here so and so let's go ahead and we can go ahead and turn to i guess directly relevant if the court which is or if you will have additional questions on the record we can obviously address there but so let's turn to the nd question here is is the objective rationale directly relevant to the equipment issue and so on that we the rational which was to avoid a very narrow distribution top by cooper right so in cooper you know we have to remember it like if we look at cooper's actual data in cooper experience truckstops consistent with the common knowledge of time is that you want to have a  whether the equipment edition you is within the prior art is not necessarily answer the question but it's certainly relevant inquiry here and if we look at the computer prior art and lupins you know and a product compared to the patents there's certainly a lot closer to us and they directly address the rationale that they claim that they were focused on the difference between the fifty and ninety the size of the particle limitation but if you look at the prosecution history that's not what happened if you look at joint appendix page one  dollars this is where the d ninety limitation is st introduced into the independent claims and it's during prosecution of the thirty one thousand eight hundred they introduce the lower limit of nine hundred but there is no d fifty limitation they told the patent office that the dean ninety of cooper is three hundred and the d ninety of their claims was nine hundred dollars the sole argument for patentability that they made over cooper at the time of the amendment was a difference in the ninety this broad particle size distribution that they're alleging now doesn't come into old way later in the prosecution history when they make the subsequent amendments to one thousand two hundred at page two  the appendix they make the same argument they focus solely on the ninety no argument about broad versus narrow particle size distribution it's only that the difference in their claims in the ninety is allegedly different from so the rationale for the amendment was to distinguish cooper based soley on the d ninety limitation they do it again at page six hundred and six thousand six hundred and seven of the joint appendix so throughout the prosecution history they try to distinguish cooper soley on the basis of the ninety and so that was the rationale for the amendments now those amendments sequentially didn't work and they alternately have to make other amendments but we look at it on a limitation by limitation basis and the d ninety limitation was expressly added to distinguish cooper based on d ninety alone even when the exam allows the claims though the examiner doesn't say oh it's a broad particle size distribution if you look at page six hundred and twenty five dollars of the joint appendix the examiner is very clear that it's not any broad distribution it's a broad distribution where they fall within these specific ranges and the examiner three times refers to the specific gene ninety particle size limitations and so any objective reading of the prosecution history is that the d ninety limitation that lower limit  of st nine hundred then one thousand two hundred was made in an effort to overcome cooper it's directly relevant to the loop and product which has a much lower than ninety value turning to argument based to stop well it's not just that they made the amendment on pages nineteen million two hundred and forty one thousand six hundred and six of the joint appendix they specifically say it's a minimum and they argue that it's a minimum and that minimum distinguishes cooper so you can't represent to the public throughout the prosecution history that the lower one thousand two hundred dollars value is a minimum and then say during litigation that representation doesn't apply what your friends a bit of as the answer is that we're not at an objective standard and what would a person of skill in the art view the prosecution history of reading so it would be a skilled artisan in the pharmaceutical art and unlike the policy of most doctor and equivalents cases where you have vagaries of language and you may not be able to capture your invention that's not the case when you're dealing with numbers the numbers are express nine hundred is always less than one thousand two hundred and the value that was picked in the loop in product eight hundred is always below what they see that there wasn't some ambiguity in the range they picked they now just don't like the range they picked because objectively reading it some was that someone was able to design around the there there is not at least in our research and express numerical range case that we were able to find and it's not cited in the brief your honor it just came out on may st is the non presidential opinion in cobol boat versus brunswick and the statement there is in particular when claims are amended to include a and seventy one dollars but that case was the number of units eight versus nine it was in the numerical range case so this this would be the closest precedent in terms of a numerical range but i little bit of wiggle room on the numerical range right i mean it that it is their patents and i don't know the science so maybe this might have a big difference practically that just bear with me and i let it go their patents at one thousand two hundred and you  words of approximation and this claim doesn't but even if we gave them that wiggle room we're in a scenario where they amended to add the nine hundred dollars the patent office said you can't have nine hundred dollars then they are meant to  they certainly can't get back far enough to recapture nine hundred and lupins product is so far below that at eight hundred that the the hypothetical you might get some range of equivalence but that's not the scenario we're dealing with here so by ninety five percent similarity to these five strains they had positive the patent office and roughly seventy three percent homogeneous with their previous p c the one so there was a numerical range in that case as up nine hundred and there are eight it seems to me that that's kind of a hard line when she specifically you know whatever reason you gave it up for you gave it up well i mean how much that wiggle room would be would probably it would depend on the specifics of the case the technology you know these are all factual issues that i think would be appropriate for a determination of whether their product is or is not equivalent but as a said no and he went up to twelve and so it at least has to be anything below nine hundred can't the equivalence and then we can talk about between nine and twelve well i mean so that again is i mean we look at subsequent that ground we're gave up we have to be able to at least give you have an opportunity to rebut that presumption but just simply because we went from nine to twelve doesn't mean we automatically lose everything between nine to twelve th was nothing reciting i guess everything that twelve or zero to twelve depending on how you want to think about it but yes there was certainly something to nine to twelve correct but again that's the effect of the amendments the law says we have to look at the rationale behind