patents the district judge a lot of this marvelous opinion a lot of effort on us and i said a person a skill in the art would look at the graph figure one be able to figure out where isn't that enough to render this definite well let me address the the expert first ok because as an initial matter the court has repeatedly and as recently as last month held that whether the claim is indefinite is a question of law but of course one can look at an expert to help explain the extrinsic needed at the expense of the evidence but under philip intrinsic evidence is still the key and when you look at dr gran error from the information in the graph by his own calculations dr grant calculated those number average like your weight and weight average like rate from the data and significantly the number he came up with weight closer to the numbers in the legend but he goes on to explain where in a very high level of skill in this art and that a person with ordinary skill is going to be able to adjust that make it work but there's no support in the intrinsic record chief judge for the fact that there's any error in the graph so that's the kind of expert testimony that this court doesn't accept which is the ultimate question of what does the specification need is a question for the court regardless of even if you whatever standard of deference you apply council there are group one patents directed to group one claims in group two claims you follow me know what i'm talking about right there is every twenty three percent of its molecules within the molecular weight range from about two to about twenty that is not a claim that covers average molecular weight at all it's not asking for m w m p m n or anything else to get their four types and a member before them something else so it's not asking for any of those it's saying each looking at every one of the individual pupils you know seventy five percent of them have to be within this range so it's not it's irrelevant there is no m w or m p there so molecule within the molecular weight range from two to twenty silicone that's each individual molecule that's not seventy five percent of each of the individual molecules not average it doesn't make sense you're talking about each one even even some of the other claims that would give your calling the group one claim thing having got a little in these groups to claim yet the big one claims would be the one that actually turn on average molecular weight yes but even those playing say a copilot or having an old molecular weight of forty nine and dr grant said that now that all right because that's the copilot months you're talking about the average of all the molecules but this one actually says seventy five percent of each molecule seventy five percent of all the molecules have to be within this that's not an a mix of different sized molecules in each slice and therefore you're necessarily talking about an average if so even with respect to the two killed on the twenty kilograms are you talking about the species and i do agree with you you're still talking about an average and at the margins between two and twenty it will make a difference which type of average are talking about it so it isn't definite but even if that for thought there was a distinction that one could draw between these different claims the ones you're calling the group for claims are on would be i know i'm  claim that i still need to look at indefinite for the group one claims because the injunction the length of the term of the injunction will be affected by the group one claim because that's the longest life patent is that right yes your honor and also some of the other don't claim should be held invalid and it will make a difference so it does matter and we do think that if there ever is an indefinite claim these are they that there are it's just like honeywell they're trying to add in information that statement in all types of patents so they made the disclaiming statements in the molecular weight profiles patents they made to disclaim statements in patents with the group to type claims that judge moore is referring to polymer and whatever else these patents claims none of them can cover a weight average let their weight of ten or more kill it off because they repeatedly gave up that to get this coverage if i can simple mathematics here is the only kind of mathematics i can understand and that's what i'm here to point out the court below air the perspective for the unusual where you in fact i can't think of another case where you error regardless of the review standard that's applied whether you look at this as a you know the standard because it's claimed disruption or faxon's vague we get the same place and it has to do with one word and that's the word approximately in the state the district court made is how it compares to ratios and if i can i'd like to use an analogy to try to make the point i want you to assume your honor that there is a model that predicts how much what percentage of people in america is will have each of four i colors brown hazel  and the model tells you that the ratio of those people will be six to five to six to two to five to one and when you do the percentages you come out with exactly the percentages this record came out with which were captured on page thirty one of our main briefing the table that we prepare now assume you just take a thousand people off the street and you look at them as a sample and you to determine whether their distribution by colors is approximately the same as what the model says the percentages that the district court calculated which  in a thousand people your model says just as the judges ratio did that you'd have four hundred twenty nine brown eyed people which would be alan even though and in fact what happens in your sample if you have four hundred twenty seven it's a tiny difference turns out it's two tenths of one percent one in fact you have ninety two and that's a thirty percent difference the mistake the district court made here was it added the difference in percentages as if they were absolute numbers and said well the difference for the blue eyed people is two point one percentage points even those a difference of twenty one people of a base of three hundred fifty seven and the difference with the green eyed people is two point one percentage point even though it was a difference of twenty one people off of an expected number of seventy one those are simply not the same  those twenty one people represent a huge difference off a small base and a very small difference of the big base and yet what the district court did was a simple mathematical error she added up all those percentages and said it's only a four point five percentage different among all of them if it has too much of that of that material in it so that it has an effect upon the environment in which it sits which is watered it could have an effect upon the effort to see even though even if it is bioequivalent in terms of registering it in the arms of the there is this question here is not whether it's b quibbling for aren't what purposes the question is whether it's an infringement under the patent claim and i would submit to your honor that the word approximately has to mean something and what is a district court do when she rony easily added up all these percentages of said the total of the percentage difference four point five she said let me find the example that has the greatest difference when you add them all up and it's a particular example in the title down reference which is incorporated in the pack she said the biggest difference there is lies in its twelve percent four point five is less than twelve pence must be approximate well if you had done it the correct way if you had looked at each of the amino acids and found which the numbers plainly show in eighth grade mathematics that there's a thirty percent difference for tires and if you've gone to exactly the same example in exactly the same publication but that's to entitle them she'd have found a difference there is only sixteen percent and i would submit at a minimum the district court has to reconsider on remand whether thirty percent difference for is quote approximately the same as that ratio when in fact the greatest difference in the record here is sixteen percent remind me to the district judge to the on her record was that following formula that was presented by your own following formulas present with let's assume for purposes of this argument a question of the alternative argument which we made in the brief i think is a credible argument is the word approximately must be understood in order to interpret the claim because it says a ratio it's called copal are one and the she got approximately the same she got four point five less than twelve percent approximately the same what i'm saying to your honor's is go to exactly the same reference but instead of making the mathematical mistake she may look in fact at the fact that when there is a twenty one unit difference on a base of seven point one percent it's a thirty percent difference not a two point one percent difference and say is thirty percent close enough to be approximate go to exactly the same reference batch to entitle them and you'll see that for tyra's mean the difference which is the biggest difference of any reference that incorporate in the pattern is sixteen percent and i would submit your honor that therefore under her own methodology of finding what is approximate it would have been a completely opposite result and hence not infringement had she not made that one mathematical mist let let me make one more analogy if i manage stuff i live in a small town in westchester county new york if i ran for mayor of that town and i was by the thousand votes it would be a landslide if i ran for the governorship of new york and i won by a thousand votes there'd be a recount vary enormously and some of them are huge and some of them are smaller they pick one is an example to make a very good rhetorical point but in fact if you look at the real world of the actual drugs some of them are enormous numbers and the differences are much much larger than that so it's not one molecule i see that i'm within money no less it's not it's not one molecule of the mino acid in fact it depends upon which particular version of it you look at and there are many and some of them have huge numbers but that same difference of thirty twenty nine point six percent could be an enormous number of difference a minute you agree that the process they made in the prosecution history of your product would infringe if the statements made in the prosecution history are the way can properly consider what approximately mean and then your product inferences you know your hon according to your preferred methodology i'm saying done according to the statements that they made the prosecution history to further define or explain as ratios in iran or even under that standard they would not until the trial keva had never in fact calculated the ratio other than by normalizing to the lowest populous amino acid which in this case would be tiring and one of the first time they used the methodology that they proposed to cavite the ratio said the right way to look at the term approximately to figure out what the errors those he added with them you know al analysis was the district court didn't agree with that but i'm going to look at the issue with that framework anyway and made a specific finding that anything them something very important tells them that they should assume that the average molecular weight means p it's true that you can do manipulations and calculations and eventually get to way to average or number average but the data that you anything that the type of average molecular weight that's being discussed so in the context of the intrinsic evidence as a whole the specification which is telling you p five b nine prosecution history which is telling a piece a person of ordinary skill  patent the number on that figure doesn't correspond m p so one of the film we are looking at that is in chemistry especially when you're talking about these sorts of things it seems to me declaration the process of transferring the data results in a shifty that would be understood by the person of ordinary skill and that is why it's critical here to look at the specification from that perspective not as a lay person as well as the president ordinary skill in the art w there is no other way to read it so they're walking away with that understanding and then the questioning can you overcome that by coming along later and correcting it or dismissal we add to the indefinite you're in the question i'm not go r crowder the same exam that was on both the parent and the continuation and both times you were saying that want to kill new york based on this specification would know it's empty but both times he rejected all of these claims saying i can't tell total mass versus molecular weight do you on the average like you see the seven point seven the problem is that's not right molecular peak weight is six point something m w is closer to seven point seven so i think one figure one is what it's meant to represent and how it relates to that's at the sig from matt a grand that's the original data that comes from the use of the size of the ship from atop the sea there is no effort on sandoz side disputing that you would have there's no basis in the records of the steve that anybody or the scientific matter based on a high level of skill in the art here we see is nothing in the record except the fact that the examiner rejected it despite that disclosure twice and one time he said n w the next time he said what then does doesn't construct a very elaborate daisy chain going from the prosecution history to the psyche of the pan which itself does not talk about any particular kind of average molecular weight to the seventy one teitelbaum paper which is well as you correctly know f c c can get you one of three different one to be read all graphs right recipe calculated but there's there's no basis to assume that one of these very highly skilled ours is going to take the easiest path and  asserted patents here and so when one's trying to figure out what the asserted patents cover one would look to the title by article and the title article says that the weight in that article in the articles written by three of the named inventors  understanding of your incorporation by reference law which is cited in our briefing is that it includes things that i consider perforated by reference are incorporated in toto as if as if written in the patent itself but even even with even beyond that your honor if the person still in the art sees f e c knows that and that can give you at least three different ways there's no reason to assume this person feeling are going to do the easiest thing and they're trying to figure it out they're going to look at this article written by three of the names inventors of the history patent how they were measur result neither mylan nor temper uses that process if they both use the process of the separate patent felicity which appears in the record eight three two six six eight and follow it and in the temple went and got a patent on a process that fixed the problem by adding feet all fixed the fact that you lose thirty percent of the tyrion which creates the discrepancy which the district court missed by doing the math wrong mathematical calculation so in fact counsel was wrong which you said that we both have practice with fact the process in the past ok thank you thank you