and its ruling that the residual is not a finding of fact it is a matter of claim construction that this court has argued with all of the court considered specifically the claims and found that based on claim differentiation the clearly when it wished to claim the hydrogen peroxide residual requirement did so specifically and when it did not it did not and thus that was that supported its finding that the hydrogen peroxide residual was not part of the challenge this court's construction of a sceptic except for it has asserted that the court should not have concluded that the hydrogen peroxide residual does not meet its construction that it hasn't hasn't challenge the underlying construction at least based on the recent for this court the certain is that this court should have found that as i understand it opposing counsel asserts that this court should not have concluded that the residual requirement is not in a set the standard that is they assert that it isn't a set of standard but the court went through that analysis and made that claim construction affirmatively by looking at the claims based on claim differentiation a was not really a claim construction issue  i mean i tend to agree with you that they're not challenging the claim construction that a septic means up to the standards of a septic but whether or not the regulation itself the residual regulation if your honor concluded that the regulation you know after looking at the specification for history and regulation i see this is where i'm a little confused by your argument no i don't think it i'm not sure it really matters much is not sure that we got it wrong but i don't know why it's a claim construction issue of what the regulation is a claim construction is what they mean that term a separate processing to be or a sceptic we said that means f d a regulations relating to it  then we have to look at the a regulations and put them in certain boxes but that's not clean construction that's constraining what regulations are for so why is it one thousand and five just use for a septic processing entirety does it lead you to the conclusion that it actually is the whole point of that is the residuals of hydrogen peroxide and its use as a sterilized and it's up to processing systems no your honor does not hydrogen peroxide by humans could cause health and safety concerns and so it needed to limit how much hydrogen peroxide could become in contact with the food product and thus be ingested i meant and it determined based upon a number of studies and an suggest that in the legislative history where the records of the government that's what the f d a regulation and even you know perhaps you know if there was an impetus there but it's clear and there is evidence that that i'm not i'm not sure how to refer to as i think the point is that this is a regulation that applies to all kinds of food processing not just a septic processing and the f d a that one standard to apply to everything not just for this to apply to a septic and not to have a limitation on other food processing it take it you would agree yes your honor that's right i'm sorry and i think i misunderstand what you are saying think i find your red brief a little confusing on this point and i know that that our decision came out in the midst of rethink that you had it there do you agree that in that decision we said t graphically defined as at the level of a sceptic and with this court decided in the seven hundred fifty p o is that would implicate those f d a regulations related to or governing septic packaging the clean term here and it said that this regulation about the hydrogen peroxide residuals was not one of us regular that's correct and i'd like to come back to the other one in that binding too regulatory regime well we said that this was not an f d a regulation related to a sceptic right yes you did and and if it's not an a regulation related to a sceptic then you lose here and less you can convince us that either we were wrong or that a sceptic processing means something different and a sceptic assume that that the hydrogen peroxide regulation is only related to a septic processing and not just a limitation on hydrogen peroxide residuals would not that's correct that's the basis for our decision that's correct so it's not what you're trying to get out in the regulatory history to show us that that one thousand and five is only an a septic processing regulation yes i want to seventy we're on the track so the regulation doesn't you i would just for a moment like to give a bit of a backdrop here and it's our understanding that in the seven hundred fifty appeal we did not undertake regulatory construction we didn't go through the details of with gre legislative history this can't this regulation was the statutory authority for these regulations we didn't do that level of analysis with that level of analysis had we done that level of now so i think we would have found it one seven eight nine ten zero five issues suggest if i could convince you that that decision that it was it was not in a septic regulation is wrong which i would like to do then we have a different result and i were exposed to overrule the earlier case no i think that there can be a consistent construction both on the other then we just look at what the regulations are it's not a claim construction issue it's what the regulations are and so on its face is one thousand and five and a sceptic process and regulation yes and it seems to me that there's nothing that limit asking us to change their our interpretation of the regulation where you whether you view that as part of the plane construction or separate from the plane construction it still was something that was decided in the earlier case and would appear to be binding on us regulation that's the way these work under twenty one u s c three forty eight this preamble says hydrogen peroxide solution identified in this section may be safely used to sterilize sterilize means the septic sterilize means where we're regulation and i would say the chambers reference which is that appendix twenty four twenty eight that states quote the date that section one seventy eight ten o five went into effect quote will be remembered as possibly the most important date for a septic processing in the united states on this date the f d a approved the restricted use of hydrogen peroxide as a package that is with  zero five one seventy five provides or authorizes the restricted use of hydrogen peroxide as an experiment to do for in septic packaging and with respect  construction that the board used in the seven hundred fifty case it's the construction we agreed with in part that it means any at the a regulation regarding a septic processing or a septic it's not a different construction it's it just well again you want us to reconsider what one thousand and five is for there was a statement in the earlier decision that because one seventy  time around if you didn't i'm sorry but you certainly didn't get it i don't see how or we can get out of that on a claim construction because it's not a different claim construction you're asking us to change our regulatory interpretation of what one thousand and five that it was not a regulation directed to a septic or a septic processing and the claim construction or lying on in this case from the or as you read it to me defines a septic this is the f d a septic regulation one seventy point ten zero five and now there is a statement that is inconsistent makes the seven hundred fifty decision internally consistent  packaging and subsection even requires the residual requirement so they have now conceded after they got a decision in seven hundred fifty appeal that in fact once seventy point zero five is exclusively a septic and