crux of the argument yes or no which here's a ball about disintegrating age and guess what that me and i guess the first general question i would throw out to you is what what's the difference between a disintegrating agent and it the mechanism of how these things operate in the sense that it disintegrating agent as i understand it acts to break up the matrix to do to break up  the structure that's holding the tablet together i think in the context of this patent we stated based on references and the patent itself that it's ok it's disintegration it's facilitates the break up chocolate certainly would dissolve and if that chocolate contained micro crystals or micro cap granules some sort of an active drug you could put it in your mouth it would dissolve you could swallow it and it would work just fine i would not necessarily consider that a disintegrating agent in this sense that i gather from reading that happened in suit and some of the literature that is in the record because it seems to could just step back for a minute is different from the lactose is that or described in the literature contemporaneously it's different from the store but all that was at issue in the current references which is one of the reason why we don't think accepted i think we have a hard time saying that the court was clearly erroneous in finding that we didn't meet that and that's why it's so important that everybody in this case agrees that the patent and the claim do not ascribe any where let me ask you this question is low yes to what one would you say that yes the district court claim construction correct in the sense that there has to be some degree of causation here  for the disintegrating ate of the disintegrating agent but that there was no disclaimer of lack of the words of one said just records right on this causation with respect to claim instruction but there isn't a disclaimer happen we got to the trial and i'm not accusing the i'm just saying they really have respectfully i think from a not infringement a point of view really push does know that this is a great age it has to be the principal cause there has to be a strong for the relationship it has to do the not in the past says one takes the position that there has to be a durable cause i mean both the swelling agent and the disintegrating agent have to act  in the starlight work together to cause the disintegration of the of the pap i think that the dispute on the facts side is whether the starts which we say is this well occasion in which the passes well a lot of things make it happen there and there's no reason respectfully it would pleading silicate with be a secondary cause as opposed to the primary you know because there's two of them and  the other was the principal cause the primary cause and not to be a broken record but the pattern doesn't say that everybody agrees and again this isn't a failure of proof i respectfully submit or something or our expert didn't testify that the the evidence at trial was that it was the star and not the lactose which is responsible for the disintegration of the tablet roquette the manufacturer of the stock consistently referred to th starch as being responsible for the disintegration never referred to the lactose as responsible for its integration the experts cadenet doctor for c t admitted that it couldn't show anywhere that wrote cat had either star or on the on the tablet product at the farms club or designee confront that lactose is not referred to as a disintegrating agent in the literature  together it's the starch that's responsible for the disintegration dr chan has testified about the role of lactose and what happens during disintegration and he did firm wacko's does does off in  proxy but dr chambliss stated in testified that the lactose not only is not helping with disintegration it's actually working against disintegration because it is forming a more viscous material and that's it page two forty four the starch in star back works well because it is put processed rep pat the manufacturer has confirmed and i believe this is page fourteen twenty five that r i would have two comments with respect to the prosecution history that one is better than a foreign reference which was the subject of a rejection during prosecution was specifically distinguished by  so you have a quotation from a card stating lactose is an exception and that paragraph or so later you have a statement that mccarty to us not disclose it disintegrated agent but it if it is same  can play different roles in different composition and in one composition here a business deal you want in another composition service a binder another composition as a disintegrating agent or simply did involving agent doesn't it depend on the context and isn't now earl that this prosecution history revealed lactose in them a party formulation was simply  perform different functions that are in this case i think charles robinson got it exactly right in her footnote it was footnote twenty two were she said that the mechanism of what the lactose was doing was the same both claim and by the way that is exactly consistent with the way the path was tracked at because there is reference in the patents and there's actually a specific claim claim five to direct compression sugars  pressure that was specifically identified as an agent separate and apart from the city grading agents and swelling agents so claim one specifies it disintegrating egypt and the swelling age it claimed five  a disintegrating agent has to cora's disintegration and it we would take the position that you have to cause disintegration to any extent so long as it does more than just  agent causing disintegration that fact finding is it's not clearly erroneous and in fact it's entirely consistent with with that record lactose is not characterized as a disintegrating agent in the prior art droplets and found that starting right at one point she said that it's at least as likely that the start she tosses disintegration as the lactose in it and that's bad she seemed to have said i can't really be sure say it's at least as likely t burden to prove infringement they haven't carried that burden here the record evidence clearly supports that conclusion that it is it cannot in our view be the case that that finding is clearly erroneous given that the manufacturer said disintegrating agent and would question it at trial he admitted that amorphous lactose was not referred to in the literature as it disintegrated agent so there were materials attached to his report for surely reference materials he referenced a table which was not specifically about amorphous lactose but it was about billions and it's add some properties of it's a judge robinson referred to that in her decision when she said that there has been some reference to lactose as having disintegrative properties in the literature but she analyzed all about evidence and the entire record so the record as a whole however shows that lactose is not referred to in the prior art as it disintegrated age so the w grieving impact was caused by a scar i believe he did because because the issue is over the lactose and he specifically said that lactose is not participating as a responsible agent in fact i  facilitation cause i mean it seems to be one can make the argument that if something is silicates it's in some degree causing something how do you draw the line between something by both parties has a section on disintegrating agents and in that section it says well the six graded agents facilitate disintegration was one of references relied on by the skater but then on that same page they that could affect disintegration time so there can be an effect on disintegration time it's recognized in the literature by things which are causing disintegration at all so the disintegration agents as used in the  to relate to the mechanism that what happened seemed to suggest that's what the literature seems to suggest and and i was a little surprised that the argument here  to break up the tablet i think that is that is the function of the disintegrating agent something in it and a mechanism it's added to as that component which might have a mechanism such a swell but it's added to cause the reported to us to disintegrate disintegrating the claim doesn't require these these two agents in a claim requires that they are responsible for the disintegration in last in sixty seconds i think jeff robinson got it right and i choose props here f i don't think i understand what your position is   agents are at work and they're tending to produce in tandem disintegration and what's wrong with u k disposition  disintegrating agent you're on it with respect to the claim is the agent which is causing disintegration the swelling engine is also participating to ensure that that takes place in under sixty seconds with respect to the test approx the start is the only agent which is participating at all it is not only causing it is responsible for that disintegration one hundred percent yes to one and if so which one it contains both types are honored to cater referred only referred to and relied on the morpheus lactose for their theory of the case so that was that was where the rubber hit the road in terms of the issues between the farmers right crude likewise skeptical of dr because he's untested theory attributing the disintegration of the end of the product with the amorphous rocco's content in starlight period indeed it is at least would say probably but to the extent she used mclarty to disclaim lactose as a disintegrated agent i think that was a conclusion of law and i do think that the entire opinion is if that's after that  he found separate independent sufficient grounds of the flaming with none improvement one was the disclaimer and the other worth the efficiency that she saw in dr would constitute a finding of fact what i'm saying is  because she believed it is to integrate engage it has to cost it i think that this opinion is in butte with that if you if you accept your position that the two things work together that it could contribute one in the end the disintegrating agent as it strongly calls being the primary cause of all of that can i ask you to rule for me and i said no and i i think that's right but i do i think if that if you change the claim construction except ours did then what she