that lined with scripts but there is if there did seem to be some language in the prosecution history or statement of the prosecution his granting it nine twenty six where it agree or disagree with the proposition that this this prosecution history reference at nine twenty six seems to suggest tell me think of iraq that the process caps are limitations materials which are translucent materials isn't that he would consider accurate but if there is a tolerance level and the tolerance level turns out to be about the same and as the visual perception level it's there is a color difference indicator or calculation that comes out of the delta there's a formula for it but the ability to perceive colors you can you can see different colors if they're different enough that they have a delta e of two but do the same expert also said that even if you take the same sample with the same machine in an you know certainly the district court i think showed bias towards instrumentation when he said that talked about the accuracy of the eye or spectral glasses we have no idea what the actual accuracy was it was challenged if i remember correctly i or spectrums have a bunch of peaks and valleys and noise and and so it may or may not be very easy to discern whether that there were twenty materials fabricating restorations from a definitive materials at two different times to a location using two different machines you're going to come up with very large or you could come up with very large the differences and that's exactly novelty was and how that car going through with what you just said that there is an inability to measure because of instrumentation limitations exactly where the differences are relationship between twenty six cultures and one of the relationships defining the pattern and the limitations of the pattern is that the central colors of these distinct planes of luminous need to be capable of being connected by a straight line you can draw a straight line between the offset three degrees to normal through the color space and your question was wasn't there undisputed evidence here that that straight line couldn't be drawn and the answer is yes then perhaps a straight marne would cover things well i think that goes to a different issue regarding whether the points live at the intersections of this regular grid of lines as i don't know whether or not they're at the intersection know be happy to cover again why the data shows feed it data shows that the distinction is levels are not there the second limitation is that the color points fall on the intersections of the regular grid of li mean pen and attempted to draw a straight line and she could and the court will feed on that page that it is no were near a straight line and couldn't be a straight line and in her deposition testimony itself thanks she says unequivocally it is not a straight line that limitation is undisputed evidence that the limitation is not met and summary judgment was appropriate even before we talked about any of the other limitations judge's claim construction which was actually undisputed the judge accepted via this product limitations regarding these products by process claims and what he said the limitation that we are now in gauging about must be metric measurements of deaths plus prox those measurements showed known french meant as as demonstrated by peter's own witnesses and so what has done is come up with this visual comparison but visual comparison in the end i think i will turn to that theory because the dispute here and the issue is not regarding whether in visual comparison in a case like plaxico which was a very different type of comparison of course it was a software program that measured the infrared spectrum of a pharmaceutical company not visual comparison of color but that's not the issue here the issue is the results of that visual comparison show no infringement the testimony that they're relying on for visual comparison dr are speaking visually impaired the shape guy with the dentist by proxy her testimony was that seventeen of the twenty six colors are a good match nine of the colors were not a good match her testimony regarding the twenty six pieces denton products was that fourteen of them were a good match and the other twelve or not that's forty seven percent of the colors did not match that is the mission of no little interest even under their visual comparison approach but that's very interesting because i didn't crux of the dispute our products are capable of being used in a different way to make restorations that match the shape of the shape guide itself is intended just to capture the universe of color people's teeth the process by which you mix the dental color materials which is what we're talking about here the claims here only about interplanetary to match the shade god one can do that in the claimed way that is the relationships between the colors that there were fifty seven patent claims or any of a number of different ways and what display does it it has double color materials that do not have the color relationships in the past material at nine twenty six of the joint appendix d is it your view that these claims in order to be met and accused product has to perform the process  prosecution the crack crack with the judge shall let's take a different approach he said if it took he judged on a product please correct correct and then he adopted product characteristics submitted by the undisputed which are the ones which is characteristics order this is a sixty six and sixty seven the product characteristics essentially parallel the process steps and the evidence is that we despise does not infringe those  expert dr white in question in the record explains this is a four zero four for his declaration what we're talking about here is not whether one spectra from meter measuring color under some conditions will precisely match under all conditions another spectra foot meter being used by somebody else under different conditions that's not the issue the issue here is about whether within a particular dataset the relationships match the relationships of the twenty six colors claimed in the past and if you look at it by measurements and you look at the video measurements while they might not be perseid slieve the same cross data sets the relationships within the data sets are the same and they show that in in that context that has to include sufficient specificity to determine what's being what's an infringement and i think i hear you saying that that can't be done what i am saying is that if you're looking at the for example take the conceptual grid and you have intersections that either the size of the intersection or the point has to be large enough that  but you have to be able to translate from a conceptual percentage of your world to real life so you think we should just look at these as product claims yesterday and if we if we were to look at it as a process claim would there be infringement and nature and so we would have to prove that they followed the conceptual process that came up with the identical set of colors that we came up with i think it would be difficult