Morning ladies and gentlemen. We have six cases on the calendar this morning. Three patent cases of veterans, a appeal and two employee cases. The latter two will be submitted on the briefs and therefore not argued. Our first case is supporting versus landal lakes 05 1548 Mr. Hathi. The district court earned in the nine porties close crown of the MOL because in this case the only piece of wire are Kim's property. Simply cannot anticipate as a matter of law. You consider the claim construction that was affirmed by this court in the first appeal. It is legally impossible that Kim's coffee right to anticipate claim one of the six seven patent. Why? Because of an poor limitation of the claim, bad limitation being additional milk solids of two to 12% added to this milk component. Well that means 8
.5% milk solids plus from two to 12% and one one looks at the chart seems to me that the anticipatory ledgerly anticipatory item has meets those well limitations. Your honor if you look to the formula, but I think it is important in percurses of this appeal is that the facts relating to Kim's coffee right were not in disputed trial. Notice the public was made in relative time for it. What the form is work, the ingredients, what the amounts. But if you look to that formula, the gerologist referred to as defendants except at 323, it's a appendix 540. The first formula is so called 214. You'll see there's a column for solids not fat. That's the milk solids not fat. And it shows it total there of 8.98 nearly 9%. And your honor is right
. The claim requires a couple different things. First of all, milk having 8.5% milk solids and then you add to it an additional 2 to 12%. Let me interrupt you to emphasize the fact that this is anticipation, a fact question, a jury verdict, substantial difference on this issue. I understand your honor, a jury and normally a despacious fact question. No, I agree with you. But I think as the court says in the Smith Klein Future case, there are some exceptions where the facts underlying the inquiry are not in dispute and it collapses down into a legal question. Much alike in the infringement context where the facts relating to the alleged infringing product or method are not in dispute, infringement becomes a legal question. And I submit that as the case here because we have the formulas in the front of us. There was no dispute. This is the product it was made during relevant time for it
. What the quantities were or how it was made. It's simply an application of this formula to the product. And back to the point that I highlighted, if you look at the total milk solids for formula 214, it exhibit 323. It's a nearly 9%. The claim says you have to have milk of 8.5% milk solids and then add at least an additional 2% Well, simple mathematics tells us that if you satisfy, if Kim's coffee right satisfied the milk limitation of 8.5% milk solids, it's only an additional 0.5% milk solids left that can never as a matter of law get you to the requisite number of the 2 to 12%. And so on its face, the formula doesn't anticipate, it doesn't fit like a glove. Not all the limitations are satisfied. We didn't need the jury to do the arithmetic
. But Mr. Hardy, I have a sneaking suspicion when we hear from the other side, he's going to maneuver these numbers around in a way that will be almost equally persuasive or at least reasonably persuasive. Don't you think that's what's going to happen next? I have no doubt that my opponent is very able, but I submit to you how he is going to maneuver these elements is inconsistent with the language of the climbing because what he's going to tell you is, well, the way that we satisfy additional milk solids is first of all, we take one ingredient, fluid skim milk, and then 214 PD, and we divide it up into two different quantities. I think the law generally is that when you have a composition climbing, you need to consider the entire new ingredient. When it's an exact ingredient, dividing it arbitrarily to satisfy a range limitation is uncroperable. Of course, so held in the the generic versus dealing case, I apologize, that's how the case is. If I'm correct, nothing in the patent limits what can be used as additional milk solids, right? That is correct, you're right. As a matter of fact, the column 6 as specific milk solids is not critical. The type of milk solid you're right on is not critical. In fact, the barely within their rights to do exactly what you said they shouldn't. In some instances, you're on these ingredients, some of which are listed in the form of this, could constitute additional milk solids, but they're not enough of them
. That is the problem. Any way you do the math, you can't add it up to get that to the 12%. The question is not whether, for example, in formula 214, could the condensed skim milk be additional milk solids? In some instances, it could. But here you have added to it 2,050 pounds of water. What it is in reality is fluid skim milk. And what you're going to hear from my opponent is, well, we can just divide up that skim milk out of fairly. And I'll submit to you, there's language in the claim and the specification that tells us that's not the right approach. The claim says adding additional milk solids to the milk component. And so to give that qualifier to the milk component, meaning it necessarily needs to be something other than just more milk. If I had a glass of milk, of skim milk, half full, and I add some more skim milk to it, I've done nothing to change the character of that product. And the whole purpose and what the patent teaches the purpose of adding additional milk solids is to enhance the whiting ability this coffee humor
. So it better simulates half and half. In that formula 214, on the additional milk solids, 348.08. In the third column from the right. And when you look at the most lower left column, total of 8758, isn't that 3.97 therefore coming within the 2 to 12 percent range? And if you disagree with that, to some extent, doesn't that constitute substantial evidence? Well, your honor, I think you've got the numbers right when you took the numbers from condensed skim milk, but I'll tell you why I don't think that is substantial evidence, because it's important to understand that these two formulas, 214 and 214, they result in the same product. And if anything is going to anticipate here, it's got to be the product, hence copyright, it's sold in the store show. And the evidence was undisputed trial that these are just two ways of getting to the same thing. And so I submit to you, if 214 PD can't anticipate by manipulating the skim milk around, well then necessarily a follows that 214 doesn't fare any better because at the end of the day it is the same product. And I get back to you, I think it's, I truly believe it is as simple as looking at the total milk solace in this formulation of 214, which is 8.98 percent
. How can that ever satisfy milk having 8.5 plus at least an additional 2 to 12 percent of milk solace? That number just can't get you there. You can pick and choose and pick and choose ingredients all day long, and you're never going to get to that requisite amount of additional milk solace. There's even perhaps an easier answer here as to why there aren't enough additional milk solace. Landel-Lates told the stat after the first trial. After they were adjudicated, a buffalo and fringer of the 670 happened in post trial motions, they told the district court, you know what? Kimpscaw here, just doesn't get you there. Doesn't anticipate. Doesn't have enough additional milk solace. And it is at, in this, at the appendix at page 1882, what's it, footnote 4? It's a clear, unambiguous statement. Now often as time has happened in these cases, you get a new settle lawyers and new set of extra reports. But I submit to you the statement that was made after, right after the first trial, is particularly provative here
. And that is, where Landel-Lates said that unlike other formulations, they did not have, unlike the Baker report, they were light on heavily in the first trial. They didn't have enough additional milk solace with Kimpscaw. That has not changed nothing has been done to change that except new theories in these theories. Don't fly as a simple matter of a rhythmically. It just goes back to looking at the total milk solace number, which is 9%, and you can never manipulate that claim to get both milk at 8.5%, plus at least another 2% additional milk solace. Now, going back to your honors earlier question about, what did we have a jury here? That's right, we've had a jury. But in terms of the two theories that have been pro-counted by the defense and the participation, there were no facts regarding those. The first is this dividing of milk. There was no dispute about what Landel-Lates and his expert doctor, Mester, did. They took the fluid-skim milk and we divided it into a 1-3rd volume and 2-3rd volumes and said, we'll call two-thirds of it
. The milk component will take the other 1-3rd of it out. We'll mix it with some stuff. Well, it's an antibiotic. It's a strangely drafted claim. But it is a composition claim. Exactly. And so if it has this as A and B and additional A, then the A and the additional A are A. In fact, this looks as though this, you don't accept that. It looks as though both limitations have been there. Well, you're right, I agree it is a composition claim. That isn't quite because it is a composition I'm talking about
. But they are two separate limitations. The milk, having approximately 8.5 percent milk solids, is a separate and distinct limitation from 2-12 percent by weight of additional milk solids. And going back to the formula, this formula, 323, was never disputed. This was accepted as true for purposes of the trial. This is how the product was made. Look at both of them. 214, page 540. It has 8.98 percent milk solids. 214 PD, which is essentially the exact same formulation, has 9 percent. And again, I submit as a simple matter of arithmetic, how can you ever satisfy both 8.5 percent milk solids and another 2? You can't do that. I mean, I think you need to have at least 10.5 percent milk solids and these all tank out about 9. And so I don't think we need a jury to answer that question. Now, because again, I think we fall into the line of cases, much like Smith-Flying patient that normally, yes, anticipation of the fact question, but not with those facts underlying the inquiry, not in dispute. Mr. Hardy, I thank you. Milk this argument. You want to reserve your rebuttal time? All reserve my relevant time. You don't think it was a solid argument? I reserve judgment
. And again, I submit as a simple matter of arithmetic, how can you ever satisfy both 8.5 percent milk solids and another 2? You can't do that. I mean, I think you need to have at least 10.5 percent milk solids and these all tank out about 9. And so I don't think we need a jury to answer that question. Now, because again, I think we fall into the line of cases, much like Smith-Flying patient that normally, yes, anticipation of the fact question, but not with those facts underlying the inquiry, not in dispute. Mr. Hardy, I thank you. Milk this argument. You want to reserve your rebuttal time? All reserve my relevant time. You don't think it was a solid argument? I reserve judgment. Mr. Dvini, before you begin, and this is on our time, not yours, you've noticed conditional cross appeal, but we don't think it's a proper cross appeal because it advances arguments supporting the judgment below. It would lead to affirmance of the same judgment of invalidities. So we're not going to consider that a proper cross appeal. You raise the same points in your argument here, but arrange your time without expecting that you'll have a second argument. All right. Thank you, Your Honor. Please, the Court of Council. I will confine my argument here to the additional milk solid argument. I heard from Mr. Hardy
. Mr. Dvini, before you begin, and this is on our time, not yours, you've noticed conditional cross appeal, but we don't think it's a proper cross appeal because it advances arguments supporting the judgment below. It would lead to affirmance of the same judgment of invalidities. So we're not going to consider that a proper cross appeal. You raise the same points in your argument here, but arrange your time without expecting that you'll have a second argument. All right. Thank you, Your Honor. Please, the Court of Council. I will confine my argument here to the additional milk solid argument. I heard from Mr. Hardy. What Mr. Hardy really is attempting to do in his argument, Your Honor, is add a new plan of litigation to plan one. He wants plan one to read as though it requires that the composition, the final composition, have at least 10 and a half percent milk solid, the 8 and a half percent from the first ingredient and another 2 percent from the second ingredient. You don't read the claim that way? No, I won't be the claim that way. And neither did the plaintiff in this case below the first trial because in the first trial, the product that was found to infringe had a total of 7.7 percent milk solid in the total composition. And this is one of the difficulties that Mr. Hardy and Dr. Hardy, excuse me, faced a trial when he was put a hypothetical question where he had to testify that a composition that had 7.7 percent milk solid in total would fall within plan one, but this composition with 8.98 or 9
. What Mr. Hardy really is attempting to do in his argument, Your Honor, is add a new plan of litigation to plan one. He wants plan one to read as though it requires that the composition, the final composition, have at least 10 and a half percent milk solid, the 8 and a half percent from the first ingredient and another 2 percent from the second ingredient. You don't read the claim that way? No, I won't be the claim that way. And neither did the plaintiff in this case below the first trial because in the first trial, the product that was found to infringe had a total of 7.7 percent milk solid in the total composition. And this is one of the difficulties that Mr. Hardy and Dr. Hardy, excuse me, faced a trial when he was put a hypothetical question where he had to testify that a composition that had 7.7 percent milk solid in total would fall within plan one, but this composition with 8.98 or 9.0 percent milk solid did not. And that's the fundamental imbalacy with Dr. Forty's position. With respect to that formula at appendix age 540, Your Honor, Mr. Hardy conceives this morning as he does, I think in his brief, that there's no question that this is the formula that Kim's coffee right was made from back at the relevant time frame. Mr. Hardy does not challenge that these formulas were in fact in place to prepare the Kim's coffee right formula. And all he can say about that condensed schema milk component is that if you add water to it, it becomes fluid skin milk. That was not the testimony below. They tried that with Mr. Hood, who was the guy who actually made this in the plan for Kim's
.0 percent milk solid did not. And that's the fundamental imbalacy with Dr. Forty's position. With respect to that formula at appendix age 540, Your Honor, Mr. Hardy conceives this morning as he does, I think in his brief, that there's no question that this is the formula that Kim's coffee right was made from back at the relevant time frame. Mr. Hardy does not challenge that these formulas were in fact in place to prepare the Kim's coffee right formula. And all he can say about that condensed schema milk component is that if you add water to it, it becomes fluid skin milk. That was not the testimony below. They tried that with Mr. Hood, who was the guy who actually made this in the plan for Kim's. And he testified that if you take all that water, all of it in the formula and add it to the condensed skin milk, you don't have fluid skin milk because then you have 11 percent milk solid and not the 8.5 percent is described in the first element of the plan. The testimony below Your Honor was that the calculation that you performed was done twice for the jury once by Mr. Hood, once by expert Dr. Metzger, that condensed skin milk in the plan in the formula contributed in an additional 3.97 percent additional milk solid to the formula. Condensed skin milk is precisely the nature of the additional milk solid that the plan, which I think is the patent specification described in column 6, where it talks about the no need for specific material, but a natural all-dairy material is preferred. And nothing is more natural or more all-dairy than condensed skin milk. As a result of that Your Honor, the jury had ample evidence below from which it could conclude and obviously did that formula 214 anticipated the plan because it got all of the plan elements. The testimony below was that the other formula on the page 214 PD got almost exactly to the same total composition simply by substituting for that condensed skin milk, some portion of fluid skin milk and then dry milk powder also and that's the way it was made in the plan and also satisfying that plan limitation. Was the jury given a general verdict or did they make specific findings? It was given one question Your Honor, which was, was there a product in a relevant time for any of the anticipated plan? Yes
. And he testified that if you take all that water, all of it in the formula and add it to the condensed skin milk, you don't have fluid skin milk because then you have 11 percent milk solid and not the 8.5 percent is described in the first element of the plan. The testimony below Your Honor was that the calculation that you performed was done twice for the jury once by Mr. Hood, once by expert Dr. Metzger, that condensed skin milk in the plan in the formula contributed in an additional 3.97 percent additional milk solid to the formula. Condensed skin milk is precisely the nature of the additional milk solid that the plan, which I think is the patent specification described in column 6, where it talks about the no need for specific material, but a natural all-dairy material is preferred. And nothing is more natural or more all-dairy than condensed skin milk. As a result of that Your Honor, the jury had ample evidence below from which it could conclude and obviously did that formula 214 anticipated the plan because it got all of the plan elements. The testimony below was that the other formula on the page 214 PD got almost exactly to the same total composition simply by substituting for that condensed skin milk, some portion of fluid skin milk and then dry milk powder also and that's the way it was made in the plan and also satisfying that plan limitation. Was the jury given a general verdict or did they make specific findings? It was given one question Your Honor, which was, was there a product in a relevant time for any of the anticipated plan? Yes. General verdict? Yes. Mr. Hardy, his argument also made the point that landal eggs admitted after the first trial that the Kench-Coffee-Wrecked product did not anticipate that's an overstatement of the record. What he cited to or I think intended to was page 183D nine of the attendance where in the first full period of time at page it describes the Kench-Coffee-Wrecked formula this time we bring to a formula 214 PD but there's no admission that the Kench-Coffee-Wrecked formula did not anticipate the claim on the contrary. The very next sentence says that from the viewpoint of the claim to the 670 patent, Kench-Coffee-Wrecked in fact free-happened hand are identical. No reasonable jury could find that any claim reading on fact free-happened hand was not anticipated or obvious over Kench-Coffee-Wrecked. So that's not the admission that Mr. Hardy would like it to be. Your Honor, your Honor is the jury below had testimony from lots of different sources in this case. It had testimony from a land of lakes represented who got this coffee-wrecked product at the time. It had evidence from a Mr
. General verdict? Yes. Mr. Hardy, his argument also made the point that landal eggs admitted after the first trial that the Kench-Coffee-Wrecked product did not anticipate that's an overstatement of the record. What he cited to or I think intended to was page 183D nine of the attendance where in the first full period of time at page it describes the Kench-Coffee-Wrecked formula this time we bring to a formula 214 PD but there's no admission that the Kench-Coffee-Wrecked formula did not anticipate the claim on the contrary. The very next sentence says that from the viewpoint of the claim to the 670 patent, Kench-Coffee-Wrecked in fact free-happened hand are identical. No reasonable jury could find that any claim reading on fact free-happened hand was not anticipated or obvious over Kench-Coffee-Wrecked. So that's not the admission that Mr. Hardy would like it to be. Your Honor, your Honor is the jury below had testimony from lots of different sources in this case. It had testimony from a land of lakes represented who got this coffee-wrecked product at the time. It had evidence from a Mr. Longke who in land of lakes contracted with to make our ultimate product. We also had access to the Kench-Coffee-Wrecked product at the time. It had evidence from Scott Hood, the guy who actually made this product or supervised. This the manufacturer Kench-Coffee-Wrecked in the plan. And it had evidence from our expert Dr. Metzger who carefully, meticulously walked the jury through each one of the claim elements with these formulas in front of them and testified that all of the claim limitations were met. Dr. Quarty didn't put on any testimony other than his own testimony concerning this additional notes of indication from which the jury could have reached a conclusion opposite that the one it did. This case was fairly tried with the jury, the jury reached the expert that the verdict should be firm. That's why I had evidence. Thank you, Mr
. Longke who in land of lakes contracted with to make our ultimate product. We also had access to the Kench-Coffee-Wrecked product at the time. It had evidence from Scott Hood, the guy who actually made this product or supervised. This the manufacturer Kench-Coffee-Wrecked in the plan. And it had evidence from our expert Dr. Metzger who carefully, meticulously walked the jury through each one of the claim elements with these formulas in front of them and testified that all of the claim limitations were met. Dr. Quarty didn't put on any testimony other than his own testimony concerning this additional notes of indication from which the jury could have reached a conclusion opposite that the one it did. This case was fairly tried with the jury, the jury reached the expert that the verdict should be firm. That's why I had evidence. Thank you, Mr. Dabini. Mr. Hardy has a few minutes. Very clear on. Mr. Dabini said that it had insert another limitation of the claim of our total notes saw as a I think it's at the necessary consequence that we have two separate limitations. You do not duplicate those in the bill for it and the necessary fact can also have at least the 10 to the 75 percent of notes saw as claim one already has a separate limitation of total saw as a level of 28 percent. Regarding the Schim note and whether or not that can constitute additional notes saw as it is important to begin to remember that these two formulas produce the same problem and the question is is it proper to simply look at the condensed Schim note in isolation for getting that there were these 250 pounds of water because the testimony was that it did comply with the Schim note with the water. That's how you make Schim note. Now there's a disagree must do well with the identical pan and Schim note would both have the same amount of milk solids but it necessarily follows your own that if these two formulas produce the same product which they do that is the evidence. You look at the total solids, the total butter fat, the total milk solids and they're nearly identical for all of these
. Dabini. Mr. Hardy has a few minutes. Very clear on. Mr. Dabini said that it had insert another limitation of the claim of our total notes saw as a I think it's at the necessary consequence that we have two separate limitations. You do not duplicate those in the bill for it and the necessary fact can also have at least the 10 to the 75 percent of notes saw as claim one already has a separate limitation of total saw as a level of 28 percent. Regarding the Schim note and whether or not that can constitute additional notes saw as it is important to begin to remember that these two formulas produce the same problem and the question is is it proper to simply look at the condensed Schim note in isolation for getting that there were these 250 pounds of water because the testimony was that it did comply with the Schim note with the water. That's how you make Schim note. Now there's a disagree must do well with the identical pan and Schim note would both have the same amount of milk solids but it necessarily follows your own that if these two formulas produce the same product which they do that is the evidence. You look at the total solids, the total butter fat, the total milk solids and they're nearly identical for all of these. One can't pass muster and the other one fail and I submit the correct answer here. The ultimate is a legal important question that turns on claim scope is neither of these formulas anticipate claim ones or so. Thank you Mr. Hardig will take the case number.
Morning ladies and gentlemen. We have six cases on the calendar this morning. Three patent cases of veterans, a appeal and two employee cases. The latter two will be submitted on the briefs and therefore not argued. Our first case is supporting versus landal lakes 05 1548 Mr. Hathi. The district court earned in the nine porties close crown of the MOL because in this case the only piece of wire are Kim's property. Simply cannot anticipate as a matter of law. You consider the claim construction that was affirmed by this court in the first appeal. It is legally impossible that Kim's coffee right to anticipate claim one of the six seven patent. Why? Because of an poor limitation of the claim, bad limitation being additional milk solids of two to 12% added to this milk component. Well that means 8.5% milk solids plus from two to 12% and one one looks at the chart seems to me that the anticipatory ledgerly anticipatory item has meets those well limitations. Your honor if you look to the formula, but I think it is important in percurses of this appeal is that the facts relating to Kim's coffee right were not in disputed trial. Notice the public was made in relative time for it. What the form is work, the ingredients, what the amounts. But if you look to that formula, the gerologist referred to as defendants except at 323, it's a appendix 540. The first formula is so called 214. You'll see there's a column for solids not fat. That's the milk solids not fat. And it shows it total there of 8.98 nearly 9%. And your honor is right. The claim requires a couple different things. First of all, milk having 8.5% milk solids and then you add to it an additional 2 to 12%. Let me interrupt you to emphasize the fact that this is anticipation, a fact question, a jury verdict, substantial difference on this issue. I understand your honor, a jury and normally a despacious fact question. No, I agree with you. But I think as the court says in the Smith Klein Future case, there are some exceptions where the facts underlying the inquiry are not in dispute and it collapses down into a legal question. Much alike in the infringement context where the facts relating to the alleged infringing product or method are not in dispute, infringement becomes a legal question. And I submit that as the case here because we have the formulas in the front of us. There was no dispute. This is the product it was made during relevant time for it. What the quantities were or how it was made. It's simply an application of this formula to the product. And back to the point that I highlighted, if you look at the total milk solids for formula 214, it exhibit 323. It's a nearly 9%. The claim says you have to have milk of 8.5% milk solids and then add at least an additional 2% Well, simple mathematics tells us that if you satisfy, if Kim's coffee right satisfied the milk limitation of 8.5% milk solids, it's only an additional 0.5% milk solids left that can never as a matter of law get you to the requisite number of the 2 to 12%. And so on its face, the formula doesn't anticipate, it doesn't fit like a glove. Not all the limitations are satisfied. We didn't need the jury to do the arithmetic. But Mr. Hardy, I have a sneaking suspicion when we hear from the other side, he's going to maneuver these numbers around in a way that will be almost equally persuasive or at least reasonably persuasive. Don't you think that's what's going to happen next? I have no doubt that my opponent is very able, but I submit to you how he is going to maneuver these elements is inconsistent with the language of the climbing because what he's going to tell you is, well, the way that we satisfy additional milk solids is first of all, we take one ingredient, fluid skim milk, and then 214 PD, and we divide it up into two different quantities. I think the law generally is that when you have a composition climbing, you need to consider the entire new ingredient. When it's an exact ingredient, dividing it arbitrarily to satisfy a range limitation is uncroperable. Of course, so held in the the generic versus dealing case, I apologize, that's how the case is. If I'm correct, nothing in the patent limits what can be used as additional milk solids, right? That is correct, you're right. As a matter of fact, the column 6 as specific milk solids is not critical. The type of milk solid you're right on is not critical. In fact, the barely within their rights to do exactly what you said they shouldn't. In some instances, you're on these ingredients, some of which are listed in the form of this, could constitute additional milk solids, but they're not enough of them. That is the problem. Any way you do the math, you can't add it up to get that to the 12%. The question is not whether, for example, in formula 214, could the condensed skim milk be additional milk solids? In some instances, it could. But here you have added to it 2,050 pounds of water. What it is in reality is fluid skim milk. And what you're going to hear from my opponent is, well, we can just divide up that skim milk out of fairly. And I'll submit to you, there's language in the claim and the specification that tells us that's not the right approach. The claim says adding additional milk solids to the milk component. And so to give that qualifier to the milk component, meaning it necessarily needs to be something other than just more milk. If I had a glass of milk, of skim milk, half full, and I add some more skim milk to it, I've done nothing to change the character of that product. And the whole purpose and what the patent teaches the purpose of adding additional milk solids is to enhance the whiting ability this coffee humor. So it better simulates half and half. In that formula 214, on the additional milk solids, 348.08. In the third column from the right. And when you look at the most lower left column, total of 8758, isn't that 3.97 therefore coming within the 2 to 12 percent range? And if you disagree with that, to some extent, doesn't that constitute substantial evidence? Well, your honor, I think you've got the numbers right when you took the numbers from condensed skim milk, but I'll tell you why I don't think that is substantial evidence, because it's important to understand that these two formulas, 214 and 214, they result in the same product. And if anything is going to anticipate here, it's got to be the product, hence copyright, it's sold in the store show. And the evidence was undisputed trial that these are just two ways of getting to the same thing. And so I submit to you, if 214 PD can't anticipate by manipulating the skim milk around, well then necessarily a follows that 214 doesn't fare any better because at the end of the day it is the same product. And I get back to you, I think it's, I truly believe it is as simple as looking at the total milk solace in this formulation of 214, which is 8.98 percent. How can that ever satisfy milk having 8.5 plus at least an additional 2 to 12 percent of milk solace? That number just can't get you there. You can pick and choose and pick and choose ingredients all day long, and you're never going to get to that requisite amount of additional milk solace. There's even perhaps an easier answer here as to why there aren't enough additional milk solace. Landel-Lates told the stat after the first trial. After they were adjudicated, a buffalo and fringer of the 670 happened in post trial motions, they told the district court, you know what? Kimpscaw here, just doesn't get you there. Doesn't anticipate. Doesn't have enough additional milk solace. And it is at, in this, at the appendix at page 1882, what's it, footnote 4? It's a clear, unambiguous statement. Now often as time has happened in these cases, you get a new settle lawyers and new set of extra reports. But I submit to you the statement that was made after, right after the first trial, is particularly provative here. And that is, where Landel-Lates said that unlike other formulations, they did not have, unlike the Baker report, they were light on heavily in the first trial. They didn't have enough additional milk solace with Kimpscaw. That has not changed nothing has been done to change that except new theories in these theories. Don't fly as a simple matter of a rhythmically. It just goes back to looking at the total milk solace number, which is 9%, and you can never manipulate that claim to get both milk at 8.5%, plus at least another 2% additional milk solace. Now, going back to your honors earlier question about, what did we have a jury here? That's right, we've had a jury. But in terms of the two theories that have been pro-counted by the defense and the participation, there were no facts regarding those. The first is this dividing of milk. There was no dispute about what Landel-Lates and his expert doctor, Mester, did. They took the fluid-skim milk and we divided it into a 1-3rd volume and 2-3rd volumes and said, we'll call two-thirds of it. The milk component will take the other 1-3rd of it out. We'll mix it with some stuff. Well, it's an antibiotic. It's a strangely drafted claim. But it is a composition claim. Exactly. And so if it has this as A and B and additional A, then the A and the additional A are A. In fact, this looks as though this, you don't accept that. It looks as though both limitations have been there. Well, you're right, I agree it is a composition claim. That isn't quite because it is a composition I'm talking about. But they are two separate limitations. The milk, having approximately 8.5 percent milk solids, is a separate and distinct limitation from 2-12 percent by weight of additional milk solids. And going back to the formula, this formula, 323, was never disputed. This was accepted as true for purposes of the trial. This is how the product was made. Look at both of them. 214, page 540. It has 8.98 percent milk solids. 214 PD, which is essentially the exact same formulation, has 9 percent. And again, I submit as a simple matter of arithmetic, how can you ever satisfy both 8.5 percent milk solids and another 2? You can't do that. I mean, I think you need to have at least 10.5 percent milk solids and these all tank out about 9. And so I don't think we need a jury to answer that question. Now, because again, I think we fall into the line of cases, much like Smith-Flying patient that normally, yes, anticipation of the fact question, but not with those facts underlying the inquiry, not in dispute. Mr. Hardy, I thank you. Milk this argument. You want to reserve your rebuttal time? All reserve my relevant time. You don't think it was a solid argument? I reserve judgment. Mr. Dvini, before you begin, and this is on our time, not yours, you've noticed conditional cross appeal, but we don't think it's a proper cross appeal because it advances arguments supporting the judgment below. It would lead to affirmance of the same judgment of invalidities. So we're not going to consider that a proper cross appeal. You raise the same points in your argument here, but arrange your time without expecting that you'll have a second argument. All right. Thank you, Your Honor. Please, the Court of Council. I will confine my argument here to the additional milk solid argument. I heard from Mr. Hardy. What Mr. Hardy really is attempting to do in his argument, Your Honor, is add a new plan of litigation to plan one. He wants plan one to read as though it requires that the composition, the final composition, have at least 10 and a half percent milk solid, the 8 and a half percent from the first ingredient and another 2 percent from the second ingredient. You don't read the claim that way? No, I won't be the claim that way. And neither did the plaintiff in this case below the first trial because in the first trial, the product that was found to infringe had a total of 7.7 percent milk solid in the total composition. And this is one of the difficulties that Mr. Hardy and Dr. Hardy, excuse me, faced a trial when he was put a hypothetical question where he had to testify that a composition that had 7.7 percent milk solid in total would fall within plan one, but this composition with 8.98 or 9.0 percent milk solid did not. And that's the fundamental imbalacy with Dr. Forty's position. With respect to that formula at appendix age 540, Your Honor, Mr. Hardy conceives this morning as he does, I think in his brief, that there's no question that this is the formula that Kim's coffee right was made from back at the relevant time frame. Mr. Hardy does not challenge that these formulas were in fact in place to prepare the Kim's coffee right formula. And all he can say about that condensed schema milk component is that if you add water to it, it becomes fluid skin milk. That was not the testimony below. They tried that with Mr. Hood, who was the guy who actually made this in the plan for Kim's. And he testified that if you take all that water, all of it in the formula and add it to the condensed skin milk, you don't have fluid skin milk because then you have 11 percent milk solid and not the 8.5 percent is described in the first element of the plan. The testimony below Your Honor was that the calculation that you performed was done twice for the jury once by Mr. Hood, once by expert Dr. Metzger, that condensed skin milk in the plan in the formula contributed in an additional 3.97 percent additional milk solid to the formula. Condensed skin milk is precisely the nature of the additional milk solid that the plan, which I think is the patent specification described in column 6, where it talks about the no need for specific material, but a natural all-dairy material is preferred. And nothing is more natural or more all-dairy than condensed skin milk. As a result of that Your Honor, the jury had ample evidence below from which it could conclude and obviously did that formula 214 anticipated the plan because it got all of the plan elements. The testimony below was that the other formula on the page 214 PD got almost exactly to the same total composition simply by substituting for that condensed skin milk, some portion of fluid skin milk and then dry milk powder also and that's the way it was made in the plan and also satisfying that plan limitation. Was the jury given a general verdict or did they make specific findings? It was given one question Your Honor, which was, was there a product in a relevant time for any of the anticipated plan? Yes. General verdict? Yes. Mr. Hardy, his argument also made the point that landal eggs admitted after the first trial that the Kench-Coffee-Wrecked product did not anticipate that's an overstatement of the record. What he cited to or I think intended to was page 183D nine of the attendance where in the first full period of time at page it describes the Kench-Coffee-Wrecked formula this time we bring to a formula 214 PD but there's no admission that the Kench-Coffee-Wrecked formula did not anticipate the claim on the contrary. The very next sentence says that from the viewpoint of the claim to the 670 patent, Kench-Coffee-Wrecked in fact free-happened hand are identical. No reasonable jury could find that any claim reading on fact free-happened hand was not anticipated or obvious over Kench-Coffee-Wrecked. So that's not the admission that Mr. Hardy would like it to be. Your Honor, your Honor is the jury below had testimony from lots of different sources in this case. It had testimony from a land of lakes represented who got this coffee-wrecked product at the time. It had evidence from a Mr. Longke who in land of lakes contracted with to make our ultimate product. We also had access to the Kench-Coffee-Wrecked product at the time. It had evidence from Scott Hood, the guy who actually made this product or supervised. This the manufacturer Kench-Coffee-Wrecked in the plan. And it had evidence from our expert Dr. Metzger who carefully, meticulously walked the jury through each one of the claim elements with these formulas in front of them and testified that all of the claim limitations were met. Dr. Quarty didn't put on any testimony other than his own testimony concerning this additional notes of indication from which the jury could have reached a conclusion opposite that the one it did. This case was fairly tried with the jury, the jury reached the expert that the verdict should be firm. That's why I had evidence. Thank you, Mr. Dabini. Mr. Hardy has a few minutes. Very clear on. Mr. Dabini said that it had insert another limitation of the claim of our total notes saw as a I think it's at the necessary consequence that we have two separate limitations. You do not duplicate those in the bill for it and the necessary fact can also have at least the 10 to the 75 percent of notes saw as claim one already has a separate limitation of total saw as a level of 28 percent. Regarding the Schim note and whether or not that can constitute additional notes saw as it is important to begin to remember that these two formulas produce the same problem and the question is is it proper to simply look at the condensed Schim note in isolation for getting that there were these 250 pounds of water because the testimony was that it did comply with the Schim note with the water. That's how you make Schim note. Now there's a disagree must do well with the identical pan and Schim note would both have the same amount of milk solids but it necessarily follows your own that if these two formulas produce the same product which they do that is the evidence. You look at the total solids, the total butter fat, the total milk solids and they're nearly identical for all of these. One can't pass muster and the other one fail and I submit the correct answer here. The ultimate is a legal important question that turns on claim scope is neither of these formulas anticipate claim ones or so. Thank you Mr. Hardig will take the case number