thank you your honor a place the court the issues in this case both an infringement and validity can be divided between two different claim terms the first being on which genius matrix the second being hinted enhanced yeah there's not much there correct and then they said and in the working examples so i think there's a big difference you're between saying i can find support for an amendment on something and saying that the characteristics of that of an example then define the meaning for terms of claim construction so i think if i was making an argument saying homogeneous matrix is limited to the result of example fork that's the only one that actually has all four ingredients it isn't limited to that that all i get i'm not sure it's the ingredients i think it rightly of trying to limit the claim to the working example for trying to import limitations from the specification into the claim and there's a big difference your honor i said respectfully submit between saying having an expressed definition you know in the terms of either lexicographically or as used here in this chair means that on the one hand which will clearly control claim construction and on the other hand having this standard statement that says support for the amendment can be found at this paragraph and i would and i would continuously that's really the problem is there really isn't anything in specification other than the one appearance of the work moment he has that tells you what it means and the only part of the prosecution history that tells us what it means is that animals but again i don't think that controls for purposes of claim destruction i think your honor that the that the limitation not in terms of the claim limitation but the limited amount of information it's in the specifications respect to a homogeneous matrix contributes both to the problems that we pointed out with lack of her description and indefiniteness but if i could take the infringement first the district courts claim construction on its facts she seems  we argued for and the district court the markets they said and matrix in which the ingredients are constituents or uniformly dispersed and her honor specifically rejected the arguments  and the claim construction on its face is not indefinite but it is pretty narrow so uniform doesn't mean mostly uniform substantially uniform largely uniform it doesn't mean that only the active pharmaceutical and greedy it needs to be uniform it doesn't mean that only part of the formulation needs to be uniform it is a narrow term that was construed it was the patent these choice to use homogeneous matrix during the prosecution and it is now stuck with i know it could have challenged the claim construction was no evidence or testimony that the phrase homogeneous matrix in quotes has a particular standardized meaning to one of ordinary still in the our so the district court i think quite correctly looked at the so either it's a very narrow and we don't infringe or if it's really isn't helpful as the question posed it's it's indefinite and looking at the process your honor i don't think it's right first of all i don't think it's a claim construction issue when somebody says i rely on this for support but let's consider a claim where in the applicant head sadly a matrix where and the uniformity of the ingredients is in accordance with the result of example one for example four because that's really where we are where this is go and i don't think that that amendment would remotely have been accepted it would not have been found by the examiner to have been supported it would not have been found to be definite i wouldn't have been supporting the  formulation etc very different here we have a particular characteristic of the formulation which is not identified at all in the specification right so there's this phrase homogeneous matrix which talks about something else there's nothing in the description of the working examples that calls out for identifies as there characteristic uniformity a certain level etc so now we have a situation it's very analogous to the produce of the fold in case that we talked about in our brief where the applicant takes a character respect an arguable characteristic in that case it was a clear characteristic  it's some examples have a characteristic and some dark does not cause a problem if i have a narrowing amendment to claim some of them the problem and produce really which is what's analogous to that is that c max oversea twenty four ratio was never identified in the specification as mattering to anything it wasn't characterized it wasn't discussed there was nothing in the area that's the situation here with respect to the working examples there's a nice may have something clearly on one side it's infringed it's within the claim and clearly something on the other side that's outside of the claim so the fact that i can point to notice that this situation is not that indefinite no your honor because again there is not a description of the standard explain myself very well on that again the fact that i can follow something in this specification and infringe the claim does not mean necessarily that the boundaries of that claim are clear the fact that i can pick out example never jive necessarily is the key word there where you created the hypothetical when you've got testimony about infringement history his rommany images and again with respect to the district court i think it really got it wrong when it said that the they were not very important in the manufacturing process is what was reported we look at his testimony it's clear there's point well we then would have looked at for example what are the conditions in example for there's nothing there about how long things were screaming and how they were mailed what the particle size was how they were mixed and dr testified without contradiction that those things are all very important if you're trying to characterize the the uniformity of a resulting product by its manufacturing process so we would have had to have looked at  that and that would have been a very different case that we would have try it would have been a very different infringement case also that we would have tried as well as a very different indefiniteness case the  there to get over the prior or perhaps than they had to when we talk about the possibility that maybe they could have tried a negative limitation some examiners like negative limitations some view them with a lot of suspicion when it comes to written description but for better or worse they chose to go with a very narrow term and they got the land which based on that and now they're stuck with it in to say well i didn't have to go that narrow is is incorrect analysis or to say i'm going to look at that claim and i'm going to construe it not on its face and not on its terms but i'm going to give the cat and the the full breast that he could have gotten if he had clear is not that people are disagreeing over the characteristics of the product which is i say your raman images all roll and these romany images control that's not what's being disputed here what's being disputed here is the meaning of unifor so isn't it what's being disputed whether there is romany images showing uniformity or not but again and yes your honor but what controls that question is what does put it beyond review obviously clear error is it is a deferential standard but this court reverses on facts and jury verdicts even which is even more deferential standard in the u s gypsum case says you know a definite firm conviction that isn't when you look at what the f d a is there's no testimony there's nothing in there i'm sorry not tested there's nothing in the intrinsic evidence here about f d a standards not not anywhere there's nothing that says that example one example for me to have to be a standards  there's absolutely nothing in there and so what we have here i think is one of these gotcha situations where superman is pours through the records and finds words that match up you know i find the word uniform i find the word homogeneous morning your honour's may please the court i think i'd like to pick up where the last discussion left off and i think i could shed some light on this this question that the panel and activists council are struggling with what does uniform mean and i think the best way to do this is chronologically so let's start at the prosecution history during prosecution the claims at issue were formulation having four categories of ingredients a b c and d the examiner identified prior art a prior art reference a specific reference and rejected the claims over a formulation that had a b in c seem to have a very precise definition in the arm well that's not necessarily fatal but that's a problem with all due your respect your honor there was ample testimony during the trial from multiple experts in fact witnesses that the concept the system of a homogeneous matrix tablet is well known in the art of direct mature i mean that's not there's no question about that the question is what does it mean how does someone who's accused of infringing it's a binary analysis you're either homogeneous or you're not homogeneous if you're not homogeneous you are you have one of the ingredients eight b c or d dispersed in a discrete area like a coating or you can envision and in her opinion at appendix fifty one and appendix fifty two quote the constituents are not localized in one discrete area but rather are found throughout the tablet service surface appendix fifty two this is again the opinion ho  engine eighty in this context is measured by a lack of localization in a discrete part of the tablet so i get the binary analysis is are you mixed together or are you look dispersed homogeneous i would agree with that entirely except for the concept of some mixing the mixing the degree of mixing is you have to read this specification and example for through the lens of a person of ordinary skill in the art now you are correct judge mix that persons of skill in the art know now example either yes god is not what he told the examiner he said that in this riding to him what i'm a genius means you said look at the examples right my point only was and maybe we were talking past each other my point only was that it's it's not limited to those precise specification but the concept of example four which is what granulation which is a mixing blending of shopping milling sieving  the so written description support can be found in examples one and for which we've already discussed ok example for ends with their house example for ends with the production of tablets and these tablets are tested in the lab those tablets are taken into example five where there administer to canines and then example seven with their administer to humans now if viewing this disclosure through the lens of a person of ordinary skill in the art and who would know that canine or to a human that is an implicit expense disclosure of the fact that these tablets were in the possession of supernews they actually made them according to the process that was example for and then they administer marriage than ever the reason why i asked the question w specific process with very specific steps and ingredients added at certain times and your claim should be limited to that you know and in fact exhibit example one an example for have slight variations so that in and of itself shows of the matrix so that that explanation was added and the amendments and the corresponding explanation was ended so that it was understood that everything was mixed together in the core and they pointed to example for to show look we've actually made the type of tablet where you mix everything in the core and that's a way to mix it there is expert testimony that the judge credits district court credited that says persons of skill in the art understand this dichotomy between localized dispersion and uniform dispersion and uniform dispersion is made by these techniques that mix the ingredients whereas these localized dispersions result from coating a tablet or making a layered tablet or by layer to work or surrounded by some of the other ingredients so that's really the the dichotomy here and and for this case to to address judge collaborators clevenger is earlier question for this case clearly the manufacturing process an example for tracks would activists does produce its accused product and that was the benchmark of the judge's opinion and then she found confirmatory evidence layers of confirmatory evidence all for fact findings all the result of weighing competing expert testimony  testimony and she found that this f d a uniformity testing while not necessary in and of itself confirms that the process that activists used mixes a b s c n d sufficiently just incorrect fifteen pages of her opinion are dedicated to analyzing the competing experts interpretation of the chemical initiators definition is example if the definition is if it is example for you stop at the manufacturing  process judge but was it was diligent in that she layered her infringement decision with three distinct layers of evidence and weighed each party's evidence in those three distinct layers to show that not only is the manufacturing process th proposition in a in a composition of matter claim and not a method of making a claim so let's consider what would have to be the case if example for it was definitional we would have a claim that sat is the same degree of uniformity as example for because it's a composition of matter clay not a method of manufacture of clay so we would have that and then the way you would have to prove infringement of that is not saying you use the same manufacturing process because this isn't a process claim it would be here i re an example for this is the result in terms of uniformity and this is the result of  process you're product because you have to compare product to product and saying in that circumstance that we can disregard the images because it is a really striking proposition for  have also i mean i think that would be it was a paradigm of indefiniteness it is is i decide i have a i have a claim to composition of matter it's a structural limitation even if you say did you gree that's required is the degree that's a cheap good example for it's still a structural limitations have a structural limitation where infringement can be proven by a manufacturing process and cannot be disproven by the actual structure of the product that that to me is it is a remarkable proposition but i want to also point to something in the record that bears on this is at table for actually it's table five are the only examples we have of embodiments that are within the scope of the claims in terms of having all four elements put aside uniformity i'm sure you're all right ingredients correct and ago this is in the record at appendix one two eight four three lines fourteen to twenty three where he talks about why the act of this manufacturing process doesn't