with respect to the nine nine what arguments do you have in your paper with respect to that if you agree with us on the construction of the eight nine three patent the nine ninety five we are not infringement in validity of claim six under three the anticipation argument goes away the obviousness argument still remains turning the coin two of the nine ninety five patent ranbaxy does not infringe claim to because its product does not contain a tortoise that an and then finding infringement of dependent claim six from which which depends from point too the district court also erred in refusing to invalidate claim six of the nine nine five patent despite recognizing that this client fails to comply with the statutory requirements of section one twelve paragraph four the district court's conclusion that quote section one twelve paragraph four should not be used to invalidate and issue patent validity of an issue the point once it leaves the patent office for failure to comply with the statute but what do you understand them to mean when they say it's not a grant from injection but only grant for cancellation what the m p what's the difference between rejection and cancellation in practice there doesn't appear to be any real distinction in the patent offices treatment of the claims if you look at the cases ex parte moleyns and ex parte order in both of those cases the examiner actually did reject the claims in one of those cases ex parte porter the fact they talk about the proper approach is that it should be an objection not a rejection that distinction doesn't make any difference from the standpoint that the p p o rules provide that we will not let a point out of the patent office that we don't believe complies with one twelve any of the requirements of one twelve but once the coin leaves the patent office there is no basis to distinguish a fair to comply with one twelve paragraph four from a failure to comply with any other of the paragraphs of one twelve and the statutory language of two eighty two is very clear on that particular point it says infringement suit invalidate a claim just because it's not written the right way obviously the examiner looked at the claim he saw the limitations found that it was packing the ball you know other respects so why invalidate it just because it's not written in the right way maybe it should have been an independent claim instead of a dependent point whitewash and we invalidate it because it was incorrectly written as a dependent clause because it doesn't comply with statute and the failure of  to comply with the statutory requirements any of the statutory is no power if the requirement was no policy ingredient there's no reason to do it is just because that's what the statute says following the statute yes your honor for whatever there's no reason behind there's no reason to invalidate the claim just because the statute tells us to do the statute gives us a search of public notice function and here fines or had notice of the deficiency of the claim since if they had any basis to fix it they could have pursued that option they chose not to also from a policy perspective this is not a case where pfizer is left without a claim to have a stack of counsel claim one of the nine nine five patent is a broad claim that specific least covers sorts of the acid and salts of the laptop pfizer withdrew that part from this litigation and granted ranbaxy a public not to sue for the purpose of trying to treat playing sets as an independent claim recognizing the defect so rather than fulfilling the pop public policy of doing something to fix the defect they instead tried to hide it in this case turning to the double patting issue of the panel doesn't have any more questions on the one twelve issue the conventional means that it's got a specific listing of salts it lists seven battle salts including calcium so clearly claim twelve is a recitation of a process for making salts of the how to convert that like turn into an acid and tells you how to make salt that is the answer if you can figure it out but it's not specifically identified in new york the claim is not specific with a compound it is not specifically named but the not to they chose to file a separate application and get a time wise extension of the monopoly over a tortoise that in calcium and that all that would happen is that they could have terminally disclaim the ninety five the regular term of the eight nine three patent ends may thirtieth of the of this year so what we're really talking about is the extension regardless of whose construction is adopted the district court fact failing to find the patent term extension invalid for lack of disclosure during the prosecution of the term extension charles ashbrook the prosecuting attorney had a board decision regarding what the eight nine three patent describes he had pfizer's representation regarding what the one three patent described both of which were from of the later prosecution of the niners i'm not here to find that were there was a bench here the district court made finding that the district court finding was that pfizer's representations and the board's decision about the eight one three patent were per se irrelevant that finding cannot stand on this record the district court didn't address whether there was gross negligence with the term extension only whether there was material materiality and that finding is clearly erroneous as both the board's decision and the question and as i understand it the specification also only discloses the race made version of it and the question is should we interpret this as going beyond the right to make and i've read all this expert testimony and i think i understand that the formula depicted in the claim at least according to some people could be viewed in context could be construed to cover both the race i made in the r n and can you comment on that issue there is testimony to that effect and there are examples in the record of we're a single formula testimony is from dr rao who is our independent expert and the testimony is also from the inventor where we are in the record that i read that says well i didn't see testimony like that and i may be missed that that's the whole particular time when i'm working towards testimony from somebody that in this field up are that it was common to use the r nana mark to represent both that one in the same time you are an american and the resume there is testimony with regard to the they you know what their conclusion re pesca morning was about the interpretation of this particular quaint but whether they testified that in this field of art there are other examples there is evidence that people would use the r in an america draw is identical for each of the plus the minus and plus minus in other words there they went on to make it very clear that that same structural formula was intended to mean the plus the minus and the plus miles but it's the same structural form ok i'm going to pick up right now much of your time but so there is plenty of testimony in addition to that your honor and  there one skilled in the art knows that that structural formula one cannot mean an individual in the interim or because it says there are for one skilled in the art but also no it's not limited to a rassam a because that would be only  transform the transform has been previously identified earlier as the r trans and the s trans this does not say trans plus minus four it does not say transfer seen it before it says transform intrinsic evidence makes it very clear that structural formula one is limited solian only by excluding sis it is not limited by excluding any specific trends if you braces all friends which it has a numerated if you look more intrinsic evidence you look at the titles you look at the introduction the background and so forth it talks about trends it's the examples that your honor referred to are just that examples i don't have to go into the law about how claims are not limited strictly to the examples and here there are affirmative statements that the use of animals are just that the last part then if we go out of the claims that are presented we see that claim five is the only claim in the whole case suppose the whole issue patent which uses plus minus or a designation of the receiving mixture playing one upon which to name five depends does not if claim one were interpreted as ranbaxy then you would have a situation where in it would already be limited to a rason and a plus minus would be totally s we look at the intrinsic evidence it is in full conformity what the patent office failed in granting the patent term extension and remember a grant of a patent term extension depends upon the plane at least one covering the product for which approval was saw an opportunity and the patent office was told what the active ingredient of a little was was told that it was an ant in and the patent office had all of the disclosure before and made the determination that the claims in the eight nine three patent embrace the pure in answer so we would say very clearly that if you look at the intrinsic evidence just as it was done in the district court it fully regard to the point one of the two of the points that mr zimmerman mr zimmerman when the response to your honor's question about the patent office his treatment of paragraph four of section one twelve zimmerman referred to the mole landscapes and to the porter case and said that both of those addressed the issue of compliance with the deep end claimed technology technicalities as rejections that's not quite true  formal matter that's the difference between the two and that's how the patent office has always treated any allegation of alleged noncompliance with paragraph or section one twelve however i don't want to know the states as if they bore a nine member board in poor specifically said that the patent office will treat alleged deficiencies under paragraph four as a matter not of rejection as a formal matter giving patent office deal with the board was considering whether it should be pretty that's a rejection or cancel absolutely and that's why they impaneled nine members of the board full board to consider that including the same three members that decided the mole in case approximately two years earlier so that the patent office who benefited from the change in the statute that incorporated paragraph four has consistently treated that issue as one of technical compliance not as a matter of rejection that is the agency that benefited from the change of the statute which was based soley on overly generating additional fees and making it easier to prosecute pa applications so if the patent office the effective agency the agency which is tasked with the job of issuing valid patents treece this matter as one of a mere technicality we would respectfully submit contend that claim six is in fact a proper dependent claim it is unambiguous as to what it covers everyone still in the art knows what it covers their testimony from their expert agreed as to what it covers it that was not the situation cannot trump the plain meaning of plain sticks it's the only thing the claim six can possibly say and if you want to call claim six independent claim masquerading as a de penetration well fine the patent office did and the patent office didn't extract its extra sixty dollars which is the maximum difference between an independent claim and independent playing at the time and now that the patent has issues there should be no valid attack on the grounds of noncompliance with paragraph or we have here a genus patent followed by a species patent designed to encourage improvement pfizer made a first brought invention that was not limited to stereo chemistry other than being a transformer it continued to work it invented then the remarkable molecule which is responsible for the working of live tour the thank you your honor i have just three points that i make very quickly mr hucks alluding to the fact that there is a potential to treat claim six as an independent claim i want to leave no doubt that the pardons stipulated as a matter of fact the claim six is a the district court adopted that stipulation with respect to the church takes point about if there are any evidence in the record that it was common to use and they had similar to represent all three there is no such evidence in the record as for the two examples mr hucks couldn't have said it better that in each of those the stocker and the only know that both of those are very clear that they represent more than one thing start or through the specific plus and plus minus it as a matter of objection in the porter case the examiner had made a one twelve court rejection the board said what you should do is make an object and you should either require an amendment or cancellation in either case you have to make a substantive change so this point because they cannot issue in the form of that is a substantive change for reasons related to patentability if it doesn't comply with statute then you have to make a change and there's no distinction when they make a change because it's an object a rejection in either case you're either going to cancel a fine in which case it doesn't issue or you're going to fix the problem and once you get a player out of the