diversion the patentee is during prosecution explicitly stated that size zero capsules are one size smaller than in the claimed adventure thout are the district court interesting you say that you are because i think the example i would use is if i went to a store this afternoon and they said we're having a sale for all people that are super size forty four last and i was a forty four along i would expect to get that discount because i'm a size forty four or less and so i think that the claim act language especially when it says said capsule that is size or a zero if it really meant only one capsule the zero zero it would say the size or capsule the examiner i think shared our view that the elongated size or capsules are included within the size or capsules instantly claimed and that's his phraseology for i think it's age twenty eight we know that because when you do the expertise in this field we said what does it mean when you say zero zero and their expert dr banker said that tells you the diameter that is the ordinary meaning we ask there are other expert dr goldberg and he said if you just said size zero to a have to specify when you have a particular eyes need to specify the other dimensions in other words if you have a filament it's a particular drug that you need to get into a capsule you know the amount of the active ingredient of summer when you have a particular rise need to say i need this not clear then it has to come back to us and i think that if you think that it's not clear then i would agree with you i would urge you that i think it is clear the reason i mention the g p h a is just to i think acknowledge that when they say typically then i think it's hard for anyone to accuse us of anything other than the ordinary meat i mean that's what's typical in this field and it may seem a bit arcane but that's exactly why when you're construed technical terms of mark that you need to be careful that you're coming at it from the perspective of a person  in the intrinsic record do you think indicates what the ordinary meaning to one of scale in the art would have been as of that relevant point in time other than your argument that you think that's what the examiner thought to fix the first i think the most important is when we said actual now moving on to the interest of record i think we have the math from the examiner of the prosecution history we have the claim language as i indicated that i think with the analogy to one of the size forty four of all the specification you know the district court affidavits sort of has something for everyone if there are some support for your construction and some support for the opposing construction i think that it's near uniform but i think that there is at least one piece of evidence do you what do you what comes your right while i know that i am there and when you ask the other expert what would happen if you would call a supplier because that's how this works in the field you know you call a supplier and you say i want to size zero capsule he said they would ask you which one you mean because the the former can hold more i certainly could i don't imagine that many people would do that i think doesn't that claim call for a precise number that's in fact i would suggest the opposite of what the claim says we deliberately also as a housekeeping matter we submit that there are four references that roxanne submitted in its opening brief in the section entitled other authorities that were not in the record below namely the final f d a draft guidance and the three references they use to equate needle gauge and super size to capsule size and therefore we don't believe those are probably before this court for failing to be in the which said that the specification is the single most important guy and that uncorroborated expert testimony is rarely reliable to the core and the danger in relying on extr there are families capsules and i criticize that at the preliminary injunction stage because i told judge kessler that i could after hours of searching there was no document i could find that said the capsules came in families and in fact the chester court in his opinion he queried whether there was such a metaphor as capsules of families and so they dropped that argument as your honor said the roxanne in the last hearing well don't you get a second shot to claim construction  we speak for the poor and so they drop that argument because there is not a single reference in the extreme six or intrinsic evidence that equates capsules to families they now rely upon diameter and they say well let's diameter alone determines capsule size and on page thirty three of their opening brief they say length is immaterial to capsule sized as ignat and i posited this example the last time since they say length is irrelevant let's take a twelve inch long capsule that's the same size as zero zero there's no way in the world most people are going to be able to swallow a twelve inch will long capsule but they say like these are relevant to dirt determining capital size but then when you go into their proposed definition which was completely different from the preliminary judges say they say well you know it's size zero zero is the swallow ability to pharmaceutically acceptable so now you have to have it if it's it has to be pharmaceutically acceptable it has to be per oral consumption it has to be swallowed whole and it has to have the same diameter regardless of l light but reference that when you look at the lightfoot reference which is at thirty three zero three three zero seven the first page table in one has a table of capsule sizes and the only thing that it pharmaceutically acceptable with patient acceptable not every patient can swallow even a zero zero caps and so therefore formulators based on the intrinsic evidence look z came out and said in her declaration although i believe her statement was false that zero zero is the largest acceptable capsule that can be swallowed the spike the fact that she attached lightfoot that shows that triple zero can be swallowed and we submit that their definition which is like a chameleon is just it just doesn't make sense because also because their definition requires swallow ability or consumption if you look for example at their own experts treatise at twenty one fifty or durgan it's at seven hundred sixty two they describe how triple zero capsules would cannot oftentimes be swallowed by either the elderly or the children so you can merely twist the capsule car put the contents in it into a juice or applesauce and immediately consume it well in that case there's no oral consumption of the capsule does that mean it's not pharmaceutically acceptable of course not it just means that some people can't swallow it and you know th the claim should be given their ordinary construction is just chest which state stated that when he cited philips and i think roxanne's argument that merely focuses on diameter ignores the fact that statement with the district court's construction but you agree that light for his part of the intrinsic yes but light that actually shows the examiners map that's exactly the spring point from us showing that the volume and so they are one point zero two is the only volume that can get you to fifty percent larger going for a double zero e l caps so the intrinsic evidence shows the doctor you're raising the examiner speaking the same language they understood that it was simply a matter of math and that one could figure out the fill  from the volume and the ball density and so if you recall from the prosecution history the examiners response to her declaration was telling by the way it's in our brief in the calculations in the record at eight two four seven three we showed below that you can do simple which again is consistent with our construction and you've got really that this records this issue being predicated on him basically restricting us to one embodiment in the specification which under this court's precedent is  zero capsule is fifty percent smaller than the size zero zero capsules instantly when we made our statement we tied it to the claim to pension so we know we were talking about the phrase that issue and when the examiner says that he says fifty percent and the only math that makes that work is the lightfoot reference with the volume of one point zero two millimeters i think you understand that those two people of skill in the art the examiner and doctor raese were speaking the same language and