and they are not being challenged here on appeal originally filed a cross appeal and then later dismissed that cross appeal and so that that ruling that the other four claims are anticipated is final and uncontest isolated it certainly could be your honor we are not pressing that we're not present argument on appeal and i don't think that the court needs to get there in order to resolve this issue but i do think i'd like to make two points just let's not question me to get there if we administration of buttermilk anticipates claim one so we know that claim one reads on it is covered by and to subpoena to buy skim milk and butter milk you know comes down to the meaning of isolated and as i understand it you're relying on line the right of the broad definition that says something to effect of events used here and in this in specification the word isolated means and it's broad yeah that's what you're relying on if you think we should not consider anything else in the specification including the repeated examples which say that the n r can be isolated from it well i don't think there's anything sources your interpretation right you're saying it can come from a natural source it's and that makes source what why should not isolated be given some meaning now i think your argument for why it should be given a meeting that's inconsistent with its plain ordinary meeting is that you think the pattern here chose to be its own like a cover for right yes your honor and and it shows i mean the way that it chose to define isolated is not strange given the time in which this patent was drafted and prosecuted this is the intended to two it was really just that's the slightest hand of man so that the claim would get over a one on one problem but it wasn't certainly certain design of what we should be thinking about that right we should just be focusing on the intrinsic evidence here yes your honor but i think it explains why i think it explains why isolated was defined the way it was and why it was defined as broadly as as it was because the applicant intended for that word to be extremely broad really as broad as possible to exclude only ok but setting that aside your interpretation of what you think they were thinking why don't you really just focus on the intrinsic evidence ok so the we think if you begin to claim so the specification clearly states that there are three sources of our that's undisputed dartmouth agrees with that and the specification says that there are three sources there are natural sources there are synthetic sources and then there is chemical synthesis and so what claim to is doing it is narrowing the scope earlier because there is no support for that finding the board there is no there is no expert testimony to support that argument dartmouth's expert did comment on claim construction in his declaration but he didn't comment on clean two and he certainly didn't that whatever isolated means it surely doesn't mean just having well i think what the specifications says is that the milk can be a source of of an r and that is exactly what the prior art disclosed so you don't think i mean it for example in column twenty six lines thirty two through thirty four it says the n r is isolated from the protein ised way fraction of cow's milk and there's other places too and they use the word isolated they're not just saying there are places i guess where the patent specification says that the n r could be the source of the n r could be no like with what i just read two years is the word isolated yes your honor and so our response to that is that is exactly what is going on in the prior art both both pieces of prior involved process milk products skim milk and butter milk where whole milk is being processed to create a new product where where it is different from that from the from the whole milk and where the n r has been isolated i understand i understand what the parent teaches i'm asking you why the specification with its example of saying that an r is isolated from l y that doesn't support the board's conclusion that it can't just be skim milk or butter milk as was the case in one of the reference of two responses to that the  st is that the statement that you just referred to is not inconsistent with the broad definition it falls well within the scope of what isolated means as defined in the specification it may be more isolated than what is defined in the  specification but it's not inconsistent with it the nd thing in this perhaps is even more important there's nothing in the specification certainly nothing in that statement that gets you to a twenty five percent purity requirement which is what the board held right and so the the isolated molecule is a polypeptide otherwise those words wouldn't appear in the sentence and so they've taken something that that by its plain terms applies only to poly peptides and said that it applies to all isolated molecules something that can be made as a pharmaceutical composition i don't know the answer to that the specifications so how do you tell me i don't have this kind of technical back tell me what happens to the n r and how it becomes enter yes just to kind of reiterate a couple of the arguments of the so that the there we think that there's really no way to square the diplomatic language of column nine the definition to impose a twenty five percent purity requirement on any isolated molecule is just not what the specification says in the certainly was not putting the public on notice they claim to carries with it a twenty five percent purity requirement notably dartmouth itself the patent honor so that the with the with the with the board did in sort of its fallback position is that said ok if there is no surety requirements then then the the and our must be isolated from all of the components of the natural source all of the facts all of the carbohydrates all of the salts so they they said here's our nd possible claim construction in just a two paragraph section of its opinion and so that that construction is wrong as well because there's nothing in the specification that says the n r a has to be one hundred percent isolated from its source even even in a fraction even way protein example that was referenced earlier it's not completely separated from from the n r but that leads me to your in your construction was incorrect we asked that x but it is it true is what they're saying prove it to make that argument whereas in the right what they're saying is not should we certainly have plenty of evidence to support the it's construction there is no expert testimony on really either side of talks about this twenty five percent purity limitation what we have is expert testimony from elisi i'm where they just quote the definition and apply it but they take this a wants to do is take that definition read it in a vacuum and say ok well if we pull a single molecule out of the naturally occurring organism the cow we have isolated and  actually the last line of column twenty six the last word natural bridging over to column th this is the portion of the specification that identifies what the natural sources of an r are and the natural sources of an hour from which you can isolate something is a list of foods this is a list of food items from which you can isolate an r and that list says cows milk serum meats eggs fruits and cereals is impossible to read a claim that calls for isolated an r and r that's isolated from a natural source on the source itself from which you isolate the n r there's a long line of cases sign med that say that says well they want you to read it under the cow up well it's interesting your honor because if you look at their reply brief we made this argument that there's no way you can read this on milk that comes from a cop and their response in their reply brief is no no no we're not talking about whole cows milk we're talking about processed milk here they're trying to draw a line between cows milk and processed milk why because they say the prior art is skim milk and butter milk that's processed no but today you heard a response where they were walking and walking a little bit about whether or not isolated  several portions of the specification that talk about milk being a source of and are never says unprocessed whole milk and that if you look at this list of sources these foods it shows that this line that they're trying to draw between process and on processed is just silly presumably under their logic he might have even made it to and in his view unprocessed milk would satisfy this claim i believe that he meant it i think he did say that today but even setting that aside and saying that your argument is that no matter what you think claim destruction is it can no matter what the claim construction is it can't include milk certainly but it also can include skim milk or butter milk right because they're trying to draw this line between whole milk and skim milk or butter milk but there isn't a lot there isn't a line in this list of natural sources between processed on processed foods under their proposed lin drawing if you pick a banana off a tree you've got yourself a natural source of n r but you peel that banana and it's no longer a natural source one of the examples as a whole eggs from a chicken well if you crack those eggs you've removed the shell and all of a sudden that's processed and it's not a source meats is another one presumably under there construction any sort of butchering of the meeting you're being the target of that ok and but the reason that i'm beating that there it's as if but the reason i'm beating this horse to death is that and this this goes to the point that your honour's made about what the opponents have called the alternate construction and what i think the parents of kind of mischaracterized this alternate construction because what the board said was ok if you don't like the twenty five percent limitation we we still have no anticipation why is that what you heard appellant say was well there's a portion in the specification that says when you're going to isolate milk you've got to get rid of all these other components so that means it has to have a high purity up but that's not what the board said in its alternate construction what the board quoting from appendix page twenty seven and thirty eight they say thus regardless of whether the claims require a minimum percentage of an ar we find that the n r present in skim milk is not isolated because significant amounts of other components remain after the fat is removed so what the board is saying is that if you don't like the twenty five percent we know that there has to be something more than an insignificant amount and there's no evidence that the prior art has anything more than an insignificant amount how do we know that well dartmouth submitted evidence in its brief at pages and forty three percent and our and those numbers are not challenged by opponents in this case and so when we look at the definition of isolated in column nine of the pat it has the definitional phrase but immediately after that talks about the polypeptide since it lists a number of purities where twenty five percent is the lowest purity for the poly peptides so that follows the definitional phrase so we know at the very least that an isolated molecule has to have some minimum level of purity a reader is going to understand that from the specification so what is that minimum level of purity for an r in this case  would say that for the polypeptides that minimum level is twenty five percent for every other molecule it's completely diminished it would cover the tiny amounts in milk and there's no way that you can read this claim on milk we know that can't be possible so we know that this broad grammatical reading of this single sentence in column nine can't be right we know it can't be right so the question is weird you set that purity level and what the board found was well we think it's twenty five percent we think there's enough information the specification to put it twenty five percent but even if there but there's certainly evidence in the record in terms of the percentages of n r that are actually in milk and these are the sources of mill don't you think that kind of weird and to for the court to i mean it is true they have an argument this level of care for sure and so the question is how how can you anchor the n r to that twenty five percent number if you're going to support the twenty five especially when there's disclosure of anarchy and that's sure and to answer your question that you paper be a molecule that's isolated for therapeutic administration the answer that question is yes that's in the column nineteen of the patent and this gets to the issue of of and i think part of the reason why you were asking that question your honor is that what do we know about the polypeptides this talks about therapeutic administration of the n r k poly peptides can be purified and then it goes on to talk about the isolation techniques that you use for the poly peptides and those are centrifuges and you should ripping out the cellular debris and then you go to the fractionation techniques that are identified for isolating that are used for isolating and are these are laboratory techniques for ripping out a small molecule from a bunch of other small molecules done at a molecular and subsoil your level it's talking about ripping out these these small molecules from cellular notion that regardless of what the definition is regardless of the claim construction that's this claim to cannot read on the prior art as a matter of law under sime edit and all of the case that say that when the patent specification makes it clear that a particular feature isn't covered by the invention then it is improper to construe claims to cover that feature and what we're doing or what the palace are trying to do in this case is read the claims on the sources from which you isolate and are the nd way that you could affirm the board's decision is through this alternate construction the alternate construction is if we don't like the twenty five percent we know that you like the twenty five percent what's that do you point the nd point is it's the board's alternate construction and that is we know there has to be some minimum level of purity we don't know what that number is but we do know it has to be more than in significant and we don't have an exact number for that but we don't know how much and are is in the prior art what we do know is that in the prior art these are milk sources these are the sources from which you isolate and so there's no evidence that there's anything affirm the board's decision because regardless of the construction there's no way to read that claim on butter milk and skim milk that's the goal of all thank you like to begin by addressing this question whether regardless of the claim construction the claim is anticipated that is a disavowal argument there is no disavowal here the rules for disavowal are strict and they are not met here no where in the specification does the does the applicant say are our pharmaceutical composition is does not contain it is not to skim milk is not butter milk they simply talk about milk as being the source of an ar and that is exactly what is in the prior art the other thing is that they have already admitted it is incontestable that the prior art buttermilk and skim milk in french are anticipate all of the other claims of this patent and there is no reason to think that claim to alone should survive because of the few references to milk in the specification with respect to the alternate construction there needs to be a claim construction this claim construction news whether it's the broader construction of isolated you know the definition in the specification that's vacation also let you know that it's not well so it would be isolated but not the natural source itself somebody but the specification never says are pharmaceutical composition comprising and are isolated from a natural source that is not milk the specification barely talks about pharmaceutical compositions potential source of an r your fruit or your meat has or does not had an r and the specification says the st thing you can do is prepare a sample and isolated extract of your of the source to see whether or not it has an r or does it have connection between the n r detection method description and a twenty five percent purity limitation and their argument to that we need to look to column twenty six dollars twenty seven cents to impose this stringent requirement on isolated is  inconsistent with the expressed definition of the word i mean the public and people out there in marketplace should be able to read a specification and see they have express lee defined this they use the word and isolate molecule means x and they should be taken at their word and we should have the claims dramatically rewritten dramatically narrowed in an i p r so that they can avoid the prior art your view is they milked that for all it's worth excuse me if the applicants wanted a purely limitation they could have easily said where in the the end ours constitutes at least twenty five percent of the product and the elected not to do that they've enjoyed these broad claims for years i thought