sustained release agents it's not stated that they must be chemically the snake so i think the claim in and of itself is saying that there's two different things and we're not walking away from that your honor however the question is whether or not they must be chemically distinct which is an was not me the argument was not raised that the two agents had to be chemically distinct in terms of the in terms of the prosecution history in relation to the two one two prior art reference could not be a sustained release agent for the purposes of the patent which would have been a very broad disclaimer as opposed to just saying that in relation to the prior art order it was not behaving as a sustained release agent there's really a question here   particular chemical a particular chemical component depending on the context in which is being use can have two very different functions both the the our experts agreed on that point and indeed i think it's just under stood and as referred to by sun's own authority to treat us this is something that that really is consistent with our position as to the claim the specification and the prosecution history different different from the recipe for the second enteric hooting layer which is substantially less origin and a difference that different except that mix there in that situation same chemical two different layers behaving very differently chemically layers so your honor yes in a situation where there is a single layer and there's a single lawyer shit and we can't distinguish what their behavior is we would submit there is no infringement yes however in this particular situation where you have two distinct layers with two distinct chemical compositions that's different that's where we say that's different your honor so there are in our view given the clear the clear claim language saying that there must be  describe your product it well robs what they claim require understanding the argument that we're making you can understand you can now you're describing hondas page what the claim requires in your market is confidential you cannot do that well i apologize your honor i do but in my heart that you can you can read these briefs and understand what our product is if you understand what these two hundred saying there are some top that shelving markets here which were broken but there are we disagree on that and i'll try to do better in the future now if i might drown or i think that we talked about in the in the first talk with my friend here about the specification a little bit and i'd like to turn to the prosecution history i could relate think that's really where things crystallize for us as far as these two discs that stink components are concerned that there are as you pointed out earlier there are examples specification there are descriptions of calm nine of these except the ends and they don't you know they don't overlap but i think if you go to the prosecution history that really were one skilled in the art starts to get a understanding of what's happening and what this invention is all about you heard my friend tell you that the function of the sustained releases agent is the question now if you read the patent the nine  specification you will not see a description in that specification of cushioning no where is the function of the sistine release agent described to one skilled in the art you would layers typically these are very small as i understand it and it's hard to get a complete coding because of surface tension a very small model i'm a very small beads so often you have to call them twice but you'll see in the patent for instance that eight you'll see whenever they caught them twice they still use a true component system where they have a sustainable use agent and in terry coding agent because they need to have that cushioning of fact  that second coding what they're trying to do is get a complete coding because you may get some air bubbles but you may get some surface tension that creates an incomplete coding so you want to code it wise to get that coding on these very small beads  really until you get into the prosecution history and you see what happens in the shimizu declaration that one three two declaration that they put in there in the prosecution there what they do is they compare the prior the shoe news who won twenty two european application to the claimed invention and what they do is they say that the prior art has a one component layer it has the l thirty to fifty five in terre haute in our invention has two components it has l thirty b fifty five and any thirty v and they compare the two in the schmoozer declaration and they conclude that their system has better acid resistance and better they have another property but it's all related to whether it cracks or not in the in the pressure of the tablet and they conclude that they get a better tablet and once filled in the are then begins to realize that's what happening here is it's not the steam release aspect of this except but it's this compressibility and that's what's happening so the examiner that is here is where i want to get into the the weather recognizes that if you look at it is rejection he says that appendix page nine twenty seven he says the declaration is not commensurate in scope with the claims they're very proud claims at this point basically they disclaimed in terry coated tablet with a sustained release component so he says the declaration is not commensurate in scope with the claims you claims are too broad he says the degree of partners in acid resistance have not been plain again your claims are too broad is telling them how to narrow them further the prior art does not recognize the degree of the prior art does recognize the degree of acid resistance in applicants that aeration admits that the prior art does have a degree of hardness and so you haven't shown any unexpected results of the prior are so he identifies three things you claims to provide he's telling them their earlier claim to a specific habit a specific drug in a specific hard so what do they do exactly what they do you look at the next  it down in the remarks they made to the patent office were telling they said on page nine thirty five of the appendix for purposes of advancing this prosecution in the present case applicants have amended claim one without prejudice to filing future applications and now they may say the limitations better that i just mentioned what are they saying to the patent office we don't like it that's all there was in the examiner required them to claim the specific habit that was in that their liberation and that's what they did they narrowed it down to a two component pellet that's what they did the declaration  from their patent and they explain to the examiner that the addition of the second chemically distinct component made a pattern of an examiner said yes you're right where they say that they don't want someone that's distinct that's what was in there there weren't anything else but two separate immigrated stink chemicals if you look at the last sentence of page twenty three the last sentence appeared a twenty three based on  done there this is what once killed me are their own expert says about these are chemically distinct these are two chemicals if you look at the shoes or declaration how can they not be anything different than that there is nothing that would ever tell you that two components should be separated in a way or as a suggestion on appeal nothing whenever two components are separated in a layer or two there's two layers in there patent there's always two components in each layer there's just no suggestion or all one skilled in that would never have thought of that not even their ow that be error for the district court to interpret the claim consistent with the way every other person in the art isn't true i'm coming up on my closing your honor thank you very much five is identifying it in relation to the function and then of course there's also our experts his health his deposition at two or three seven and his declaration one six two which stands for l thirty fifty five can be applications can be used as they release agent and that's precisely what our experts they added in is that position at appendix two four three seven page two sixteen lines one through sixteen so we submit the record does stand for that proposition and your honor had at correctly pointed in relation to the prosecution history i just wanted to stress that again to kant i said nothing about chemical distinctness between the