has has raised the court has jurisdiction over this appeal the district court only agreed to consider more males indefiniteness claim or indefinite motion because because hormel represented no genuine live issue remained in that case the formal record in shows that have submitted in agree propose form of order on july th in the district court and to final judgment on detail the prosecution history evidences that the term pan fry bacon has an established meaning in the art and had that at the relevant time the opinion says nothing texture mouthfeel by any appearance of our colors but it doesn't specify how to measure any of those characteristics what level of them must be achieved or how many of pieces of bait and i said tell me which one is microwave versus which one has been frightened you wouldn't be able to do that you would want to know which process it was made by writing the witness it would be difficult for him to single pieces of bacon and say this is like him for writing this is not like him for that that i think your honor highlights the point of disagreement this case is not about one's piece of bacon that compared to another piece of bacon the playing the claims decline in industrial scale commercial products product we're talking about in your expert repeatedly that the expert cannot tell the difference well what the expert the expert was being cross examined by the court questioned by the court of balance these underlying factors those are relevant the the district court focused on the on required quantified quantified criteria for the underlying factors that's not what would i know that a particular piece of bacon is a nothing like ham fried bacon you know ordered to that my device to produce that piece of bacon would french well that would be the  discussion before the district court in the did with the district court said as his ruling is if it's not indefinite i construe that have plain and plain and ordinary meaning nothing more that's an i suspect your honor the answer is it might matter not in a material way it might whether whether you leave it for two and a half minutes on one side or the other or you flip it is not on either side because what the record shows is is is the example which says the bacon is going to be pan fried had five hundred dollars degrees fahrenheit two and a half minutes on one side two and a half minutes on the other so that that's what the record shows and then the record says and if you compare that to pure those products to what you've been making in the example at two dollars tons per  hour you are going to find they are substantially the say but you're not limiting yourself as i understand your position before the district court was you're not limiting yourself to example one you know that's an example of one is lines talks about that the range of colors that a product can have and then but then it also says that the produce product does not have burned or black an editor edges and is much closer bothering me about this case and just it out for you you and i are probably old enough i suspect knitted to remember paint by numbers remember those games where you would color in the that particular portions of the drawing which sure enough turn out to look kind of like a painting in the american suppose i come up with an improvement on paint by numbers and i say if you follow this you will produce a painting that looks like the mona lisa and then i get a patent on that and then one of the terms is it has to look like the pope monalisa now how in the world i mightn't be able to is different from this it this case is different because again in addition to the one example we took the bacon that we would be comparing  is only compared if it needs claim imitation it's a through e in other words in order to be subject to the test of resembling a pan fry bacon product you st have to follow all the steps via the scope of resembling pan fried pan fried bacon product this is very similar to the kind of cases this court deals with with substantially or similar and  male is been marketing it and showing comparisons and using the phrase hand fried bacon showing pictures up the realities  the reality is that a person of ordinary skill in the art would will understand with with the comparisons that are available what resembles a pan fried bacon product after it's gone through the steps of outer it certainly did not wrap up the case at the time and it's explicit here your honor and that's that's i think the point is the parties understood even back as far as april of two thousand and nineteen that if the court issued an opinion finding the claims indefinite then that is a partial summary judgment and we agreed that if the court did that we would then take steps to dismiss our claims so that and that you had agreed to dismiss the judge understood that and the other parties the other party in fact that after this happened the partial summary judgment was entered the and it wasn't a decision it was the pill wasn't filed because they thought it was final the appeal was filed because they wanted to expedite this appeal because there's a parallel p tap procedure going on so they wanted and they in fact did try to stay that appeal so what they were doing was say let's crank this through as quick as we cab so and to represent us and that really followed up on it and the week after they actually filed the appeal within a week we final and no final judgment was entered so basically and then we provided them with a proposal we spent almost a month having to negotiate that proposal because one of the other elements of the court didn't deal with was the infringement element how exactly was negotiating all this the court entered the final judgment we asked them to and so the court has jurisdiction rules and the jurisdictional rules say that you have to appeal from a final judgment and rule for a the states that rule for a two can save a premature appeal or only when a district court announces a decision that would be appealable if it mediately followed by entry of judgment there's no way that partial summary judgment ruling asimo certification of the rule thirty four was a final judgment that could have been appealed and everyone knew it both before and after they had the final judgment in their a great case for having never that you're hearing because what we learned from that evidentiary hearing and i think would you recognize today is despite the fact we're standing before you today i certainly don't know i suspect no one knows what the standard is for an expert to apply to determine whether pan fried bacon really doesn't matter as every expert indicated you know exactly exactly and that's what the good thing was when the judge finally got to ask his own questions well the experts and their own expert couldn't couldn't find it our expert certainly explained that that it is purely a subjective term and while that in this case is really really on all fours with the data mice case is what you had in both of those cases where you had sopranos laid out in the past but you had no way to define whether or not those parameters were met and so just like datum eyes this purely subjective term had no objective standard either within the pad which both experts admit that the the the plaintiff's expert admits that there's no objective standard laid out for those terms and there's no and there's nothing in the art the also admitted their own expert admitted that even in the art there is no objective standard with regard to or melds own use of the term of their expert was asked well how does hormel pile he couldn't give a standard for bell's use either overcome the prior art they continue to give me jackets with the intent you think was to overcome prior again i can't i can't speculate on the intent or the key i think the key here is regardless of that decision and what happened with that decision were we all agree that it is  if it's water under the bridge your honor and i don't think this court either has the jurisdiction given the scope of the notice of appeal or or should even if it had jurisdiction address that because the that's a separate issue that order was never appealed only this order was not i think the other point if unless having further questions on that issue i'll go back to the indefinite this issue and i think the other point i'd just raise in response it doesn't provide the contours of the claim and just as in database you can have one exam you could have an example and in less especially with with a fairly subjective terms unless you patent something the found that with substantial evidence like you know the cases that have found the terms were not indefinite within the you know within the claim that within the specifications themselves there is sufficient data many examples provided that help guide  know we would just be right back up here given that with a fifty four b certification so well but i think that the point is the case is over and there was no appeal from that that judgment so we don't think that any reman question and that is you mentioned earlier with respect to the dismissal issue that there was some complexity to be worked through with respect to the proposed order of dismissal i think ye forth on how that was to be interpreted in terms of if there was a remained for example exactly what what claims we continue to have and so we negotiated that and that's where you got a civil result in the end which was we said in the are able letter what we said and basically left the decision of how that was going to be interpreted in terms of how any claims that were dismissed came back in the case honor i think in conclusion d that you know the other point that we haven't talked about but obviously this court is extremely well aware of this as it is not only did the court get it right but we are here under a standard or review and based on the court's decision and it's st hand look at testimony it's credibility determinations of the witnesses that were here not just to say it was a court right it was the court wrong but we're here to say did the court clearly  are factual issues that are attendant to that if you're in the nation does the clear error standard apply right that that's right or honor that would apply for example to the assessment of the the experts credibility t me not much else in that case has the clear ever standard right but the majority of this case because there is no standard objective standard within the four corners the majority of the case is about evaluating what each of the experts believed was the state of the art in fact the hips on its own counsel stated that this isn't the typical case where you can just sort of on the four corners of the patent decide whether there's the indefinite in order to understand these experts not just on paper but in writing and he made those credibility determinations in your honor you're correct that if you look at his credibility determinations and you look at those for clear air you look at what he decided based on that testimony did he clearly come to the wrong factual conclusions of what the state of the artist and then the question is which you can look at de novo based on those findings did the court of the district court properly conclude the court the district court understood it at the time the judge bryce reed asked a question about standard of review in the line of demarcation and what i would suggest is is that