good morning your honor that may please the court today to the reviews the summary judgment of the district court that found that a particular equivalent was foreseeable and therefore outside the scope of the doctrine of equivalence that judgment was in error for two reasons first the district court misapplied the standard for foreseeability because it took a particular sentence from this court's feste of ten decision out of context and therefore applied to per se rule that if an equivalent was identified in the prior art or mentioned in the paddock used and in terms of those mentions i think the main reference there was that issue below was a p c t application applied for by color con that p c t application noted that all the previous attempts to make a p v a coding option however you want to phrase it would know all of that p c t application but there is still a disputed question of fact as to what that p c t application actually taught particularly in conjunction with the other information available on the record  suitable applications and we have expert testimony on the record that because the p c t application didn't include any data to show that the over dry a m b coating actually work to overcome these disadvantages of prior p v a based coatings a person of ordinary skill in the art wouldn't have accepted or believe that it would dry and be would have been usable in the pharmaceutical context and that's the context that this court has to look at the equivalent through the lens of whether this open the inventor testimony we have available in the record shows the person of ordinary skill would have required stability data data showing whether the moisture sensitive active pharmaceutical and greedy and actually degraded in a tablet that was correct your honor and this goes really to the issue that several of the discords previous decisions i've gone to which is the issue of before and after develop technology and this happens to be a technology that was right on the cusp of development at the time well what's left is the factual dispute about whether a person of ordinary skill in the art would have read that p c t application and from that actually taken away from it that open dry a and b could have been used as a coating in an actual pharmaceutical composition based on the language is but it was never tested it there's no test data provided in the p c t application that test data to show whether it actually worked or would only have come later and even the later data and there is some dispute about whether that data is in the prior  in the smith kline case which i'll discuss a moment earlier as a sub coat to help applied the actual moisture barrier coating so that's not actually the use of the jordan reference and this is the main one nine five i believe abstract correct so that doesn't actually describe both draw a and b it describes color cons attempts to make the p v a based moisture barrier coating and the problems it ran into using later efforts were also discussed in abstracts but the main point is there was no evidence on the record to show that these outranks were part of the prior art that's kind of the fundamental factual question that need to be resolved at summary judgment now the district court  ignored those abstracts and i think while that reaches the correct end it did so for the wrong reasons the district court applied a per se rule that evidence that a particular quibble and was unsuitable for the claimed invention was and didn't matter as long as the equivalent was mentioned in the prior art according to the district court it was foreseeable that well i think this court did it in the complaint case of glaxo versus a protects and smith kline versus excel in glaxo this court said it scoured the record for any evidence of a verifiable scientific reason that the equivalent in question there was not suitable for use with the claimed invention and only after it found no such evidence did it allow summary judgment to be affirmed on the flip side in the smith kline case where the same patent was at issue the same limitation was at issue does because the only way that summary judgment was affirmed there is after finding that there was no variables verifiable scientific reason to show unsuitability of the equivalent for the claimed invention and i think the courts for for further trial on that issue by the district court particularly because it wanted to give the pantene opportunity to determine or to provide evidence to show whether it would have been foreseeable that unforeseeable that aluminum could be argument it was looking at a different purpose so instead of looking the purpose of the original purpose of the sleeve which was to hold the magnets in place it was now arguing that because the sleeves were magnetised ball post amendment their actual purpose was to provide some shielding and discord i think correctly found that that purpose the post amendment purpose wasn't properly the focus of the foreseeability inquiry here the claims were the claims original purpose and the claims post amendment purpose was the same it was to provide a moisture barrier coating or the limitations purpose at issue was the same and that was to provide a moisture barrier coating for a pharmaceutical product that had a more sensitive active pharmaceutical in gradient specifically pretty clearly resolved that but the factual issue the factual dispute here and what is set up by the expert testimony on the record is that in order for a person of ordinary skill in this art to believe that a p v a based coating could be used with a pharmaceutical composition they would have to see stability data data that showed that when you put the coating on an actual tablet with a moisture sensitive a p i in it the a p i wouldn't degrade under certain stability testing condition clay i think what we have to look at is is it suitable not suitable is it foreseeable for use as a moisture barrier coating which he clearly is all those references that iran is of already asked about do talk about just that  con prior to the date we're talking about the date of the amendment here it was also published in technical articles in fact two of those articles that we cite were authored by expert who was  bad expert in this case yes i think it is and i judge san found that baton he also relied on a few other references prior art references to find the support clearly for why it was foreseeable he didn't rely on four of them he didn't sought to be forseeable particularly not when they wrote their patent application the test the legal test is whether a person of ordinary skill in the art which find the ledge not only the alleged equivalent but p v a in this instance would be being urged that this the standard should be suitability i don't believe there's any legal support whatsoever there is and have we haven't found a case that supports a doctrine of suitability in order to find foreseeability i mean suitability equals but two points the first is whether there's any case law to support this suitability requirement and i think smith kline is clear in smith kline and glaxo the two cases the court considered prior art the disclose the equivalent in question and that prior it was before the patent office in the prosecution history but in smith find the court remanded the case for further proceedings because it asked it wanted the patentee to have an opportunity to show whether that particular sustain that well your honor it talks about it certainly being known in the field of the invention but what it has to be known to do is to be usable with that invention at least as the invention  example if there is no evidence in the record the conjugated actions are special compared to other boys your sense of active pharmaceutical gradients i don't think there has to be a specific reference that says use p v a with conjugate with pharmaceutical compounds that were moisture sensitive this particular coating would have to be known to be usable with moisture sensitive pharmaceutical compounds because that's what this invention was a pharmaceutical composition with a moisture sensitive active pharmaceutical it doesn't show it to the satisfaction of a person of ordinary skill in the art that at least from a factual standpoint and this is a summary judgment case there is actual testimony to show that person of ordinary skill would not have accepted that the lack of data in the p c t application overcome the statements about previous p v a based coatings being on acceptable and pharmaceutical compositions there was no stability testing stability data in the p c t application that would have shown that open draw a and b was suitable for that purpose the other question that judge moore mentioned was does a subjective knowledge of the inventor's matter i think that's kind of where we're judged as question is going and while it may not be dispositive it certainly is one fact that would suggest  what the outcome should be on an objective foreseeability analysis