not have done that that that was drafted broadly with respect to a lot of different aspects and embodiments including saccharine ads that could be in all these different forms the patent wasn't drafted to include that to settle a good manners which is a specific chemical compound it's isolated from something that's on one we think that's a problematic construction because it gives no meaning even though this was a critical element that was added to distinguish paro moreover when that term was added into the claims the the isolated the purified other sac arise and they said we're just have independent funds that are narrow in scope and they said in support of those planes here's examples three and five here some other language and if you want to read what they're saying is consistent with the is not separate from the other from the sacraments right so your view is that a claim although it claims a composition in which these things are together understand your question correctly i think the answer is yes because the claims are two a combination of different isolated and purified specific sac rides and the reason this is important i mean they're not process claims they that composition claim and interpretation that says whether or not the very same composition which the things are together is covered by the claim depends on where the the components once were in the others is campbell and campbell is of an additive that was given to animals as a nutritional supplement that included a sea weed extract and that seaweed extract as expressly identified in campbell's including six of the list of specifically identified sac ri in combination with al of the rx tract and both of those things were substances that had been processed and that had removed done wanted substances but when you combine those two together which is an example three of the camel par offerings then you get basically the and we are allowed under violent scientific despite the fact that one of the pellets is in privity with mannatech to point out the prior art particularly prior in this case that was distinguished expressly during prosecution my name is eric pink around here with jared eisenberg representing man attack happily this case involves appellants attempts to dramatically narrow the scope of the patent on which he was an inventor in order that he can compete against that added later during patent prosecution history we believe that term is described through the specification the meaning of it the import of that is described through the patent specification i would hasten to add that as it relates to the two twenty  patent which is one of the two issues the actual definition from a prior litigated case is in and is part of the prosecution history and as such that term is literally they find through of them are coming here in claim construction as part of the the inventors intent and understanding as well as the patent examiners understanding of how that term was being used in this patent it is the same and perhaps more so pacific than a dictionary definition in this case because here we had a court decision that was final and binding ruling that isolated in purified mean meant separate from unwanted substances filed of record as part of the prosecution history for the two twenty so i think it is even better than having filed  example two is simply that is an example of which there are others there is nothing there their argument is essentially that the reference to example two is a disavowal of everything else and specifically examples three and four this circuit has been clear that a disavow those have to be clear and unambiguous and by simply referring to example to which i submit is the most extreme isolation purification it by no means disavowed an the reliance on the other examples or the other parts of the specification of which there are many that refer to model the go and pali i refer the court specifically i guess to two things in that regard number one two years after referring to example two which was done in two thousand and four and which they claim limits us only to example to two years later we've we cited two examples three and five in connection with adam and what lines sixty three through sixty seven of the four thirty one patent which is the one that we're all citing to those lines talk about how the gunman track a panther and who are shall be considered as providing and it lists a series of six individual sacrifice and so again that is a clear and unmistakable statement that high referring to the sources and referring to the complex polysaccharides we are intending to satisfy abuse the it seem i guess significant that the claim construction that was adopted here is one that would have the claim read on a piece of prior validity into the appeal of claim construction assume i think that that's ok i understand that and my point would simply be i didn't have an opportunity to develop a record on validity i do not believe in any way shape or family form campbell aggressives the integral and necessary limitation of nutritionally effective i do not think campbell speaks to the limitation of a dietary supplement but i have not had an opportunity to present evidence on that to obtain expert  witnesses on that to take depositions on that because literally validity was never a part of the proceedings below and so what we have is a very small i would say unfocused snapshot attacked on validity you haven't seen any claim testimony and have satisfied solidity challenges and lack of description challenges vagueness challenges and have have surpassed those in two prior cases and my point simply to your honor is to to raise it now in the first in deprives me of the ability to answer a lot of your questions with specifical specific factual cites because i wasn't given that opportunity so number one i would cite nutritionally effective amount number to a dietary supplement composition number three i believe that campbell really was directed to an animal feed rather than a dietary supplement for humans and those are the things that i would challenge in an evidentiary hearing if i had an opportunity to do that fundamentally the problem here is that fact there were some initial ambiguity in the claim instruction if if the terms are clearly defined or if the intrinsic evidence is such that you can get an actual definition from the intrinsic evidence without ambiguity then whether there is political arguments or not is not relevant to the claim construction we have to construe the claims as written consistent with the claims consistent with the specification and if it turns out that there is a validity issue i don't think there is but then we deal with that separately not meaningfully narrow the scope of claim one i do think however it communicates quite loudly that claim one must necessarily include a seal a demand on us you know both a modern american form and as a constituent do want to make sure i've addressed just a couple of things i'd like to direct the courts to really going back to my first point that this is an attempt to narrow dramatically the scope of a patent this patent has been construed now on two prior occasions high two different judges in the northern district it has been construed entirely consistent with this i recognize that this court conducts at the novo review but i would submit that those prior decisions are both persuasive in their reasoning and provide public notice and uniformity this court's constructions are consistent with those prior constructions the appellant's arguments are not  so is require compounds to be essentially one hundred percent pure require individual sacrified monomers and claim limitations or citing mixtures to require them to be separated from others that simply goes against most the dietary supplement industry i think it really means removing the rhine skin right so the results are going to terra will settle separating the compound you're looking at from the original source material it would be the things that grow in nature but we're not talking about absolute one hundred percent purity as it's made that would not be a little clearer than i wanted substances but i frankly think unwanted substances is a still fully done construction that was done first by judge judge kaplan and in the first case an adopted by two later judges because i think it communicates the breath of the patent as intended by the patentee and as accepted by the examiner they first with respect to the claim differentiation i think we're in agreement that it's redundancy is an improper depending clane i don't think that that warrants for adopting their construction versus ours because some of the examples of the sac rides that are going to fighting plane one are armada murs like special definition that's totally improper it was done after issuance of the asserted patents there was no but unequivocal statement that said the patent he was accepting these constructions moreover would run contrary to blinder tongue and not giving us  opportunity to be heard because all of henty would do is sue somebody get somebody small get a favorable construction run to the patent office file it in the and the file histories then all of the sudden everybody else in the industry is a stop to ever present its own constructions we think that's have been prosecuted and handed more over the specification these examples are drafted before the give and take with the patent office so that's not necessarily that there's that there's anything inconsistent with those examples not being included moreover the reference to those examples as providing support for these other claims was much later in support of the dependent claims including claimed on which we've now indicated it isn't at best a redundancy with respect to campbell there was a lot of discussion about whether or not they were given an opportunity to address the file history associated with the eight zero seven patent in these which actions was addressed below it was addressed in the briefing in general it may not have  focused on campbell but they were given the opportunity and if you look carefully at that claim distinctions between campbell and as construed by the district court and the asserting claims there is none they are providing