honors this is not a classic credibility case while the district court mentioned a lack of credibility and the arguments numerous times in her opinion what this case is really about are clearly erroneous finding of fact on which those credibility by needs were made there was no finding that documents on his demeanor suggested that he was lying there was not telling the truth it was all based on fact finding and we submit that fact i think was clearly erroneous over and over and over again and i have one other question just before we hit intent to heart since our federal circuit ruling this is been reissued without examining with things in the thout example six which we suggest were clearly erroneous were two basic findings which you repeated over and over again one was that the central question of patentability dealt with composition difference and to the doctors i'm trying to overcome that through a half life finding she mentioned the compositional difference point nineteen times in her opinion i wrote i prepared a paper and listed them over and over again and if you look at those findings you find that underlying her findings have no credibility were those two reasons over and over and over again the fact is that the central question about this case was not compositional difference it was not only section one  in the first two obvious actions there were two rejections basically two that are open to this case one was on what some people call them or d n a what some people call e p one forty four i was one of two rejection there was also one of the three rejection those were independent rejections she may have asked for the same one to prove that they were independent rejections and the proof of the put it is in the third office action because in the third office action the examiner withdrew the section one of the two rejection notwithstanding the similarities difference in his case to clean the two and then goes on and also talk in more detail about what i'm sure you would characterize thereafter as compositional differences as well i'm on page seven of his declaration paragraph number eight it's a ten ninety nine of your appendix that hell yes i have ok paragraph bates's for the first half of paragraph eight is the half life discussion correct that's correct yes and the second half of paragraph eight is the discussion of what you would probably term compositional differences yes yes ok and so your argument on appeal is that the district court erred in concluding that the first half of numbered paragraph eight similarly pertain to compositional differences your argument as i understand it that is all going to whether the properties were different for obvious purposes exactly yes but how are we supposed to tell that because unfortunately dr didn't articulate any sort of separation between the two paragraphs or even both under number eight it's not even separated in terms of one zero two and one of three how can we find it clearly already i did three with you if this were to novo review but clearly erroneous is a pretty deferential cmdr then i just don't see anything in this particular declaration that would suggest to me that this argument was meant by dr who than to only applied one of three so that's why i need your help you are let me respond to that first of all it is clear that the exam are appreciating the difference but isn't it equally clear that your own attorney prosecuting this didn't appreciate the difference that's exactly right nice that the examiner did not as the attorney did not appreciate the difference and are counted on that so how could i find the clearly erroneous when the attorney who prosecuted this on behalf of your client thought that applied to one of two because there's no evidence that the attorney knew that there were different doses and there is no evidence that doctors are knew that the attorney was making those statements that will come upon in this case is directed to doctors and i agree but but the district court found as a matter of fact that when doctors and wrote this he meant both the first paragraph and the second paragraph to apply to compositional differences that's a fact finding and you know even your own attorney thought both paragraphs did so it's really hard for me to say the district court is clearly erroneous  reason that judge selzer found that was based on her clearly erroneous bindings that the only question in the case even from the third office actually was compositional difference coupled with her finding that doctor that he could not distinguish composition shown council where she said the only thing pending after the second office action was the issue of compositional difference because if that's correct that may change my thinking and that's what i thought i just understood you to say and  didn't see that i didn't see in her opinion where she said the only thing doctors and was supposed to be rebutting with compositional defend your honor i have a list of all of the findings in which unaware of the fact that there was a one of three rejection pending as well which is what you seem to suggest to me because surely if he erred that no the only rejection made with one or two therefore this must are going to want to kill i think you might even make your case are clearly erroneous but that's not what i understand her  to the second declaration and there was clearly only a one and three still pending at that point in time that we should be concerned about fact finding but if the first declaration which we all agree doesn't have that situation one hundred two and one of the three were clearly pending why shouldn't we just look at her fact findings with regard to the first declaration after the second office action and say i can't say that that's clearly who prove composition difference under that one up to rejection was through life determination but it's certainly possible one could prove compositional differences by showing a different half life at the same dosage we agree with that right so so it certainly would persuade an examiner even if there was nothing else in this declaration this would persuade an examiner if you were to believe the half life differences are being shown at the same dosage if you were to believe that it would persuade him the council people make multiple independent arguments to overcome rejection sometimes right so why is the district court wrong in saying both of these arguments in paragraph eight a single number paragraph were meant to go at one o two and weight distribution showing i could only prove it through a half life showing she said this i'm trying to find out exactly where she said this on a sixteen and seventeen based on a difference in properties in other words he said he couldn't he couldn't prove it based on molecular weight difference he had to prove it based on ideas and properties and that theme courses through out her opinion and in fact the examiner got it right the examiner said in the third office action ok she didn't use these words but that's the necessary fact of her action you've given me a molecular weight distribution in the first officer in the first operation that's the operation and then she was drilled in one of three rejection so the examiner saw the dichotomy the district court held he couldn't do it the examiner proved that he could do it and he did do it and coursing through others opinion the entire opinion nineteen times she says this central question the principle question is the composition difference the one or two rejection she thought she she took to go to the words inherent city and the third officer and she said  significantly different that would be an argument you would make would you that they're not it's not obvious or would you it's really quite it can be used as part of the argument but but the thing is once you show our position a difference then and expect  the question then is if there is if they're close enough and they destroy the examiner thought they were they need to show unexpected properties she did not find that the composition difference was enough to knock out one o three she found that the composition difference was that was adequate only to knock out one or two a he had to make a separate showing in a supplemental declaration the second operation in order to get what was rejection knocked out the district said that could be done the district court did not appreciate that she thought everything was part of the one of the two rejection she did not appreciate they were separate issues capable of being overturned by separate kinds of proof  physically the this is just an effort to the district judge can continues the mistaken or footnotes doesn't she she says the one zero two anticipation rejections were still pending in the third office action that's wrong isn't it your honor what we did wrong but it doesn't effect if that's wrong doesn't that show that indeed  zahn was responding to the request for unexpected properties which is entirely consistent with what he did using doses rather than exact milligram animal biologist he had no knowledge of the subtleties of us patent law we don't even i we're back to the specifics of the case here the district judge has said that interpretations probably it was gone but i know it you said it was an error i don't say much ambiguity but go ahead i had no way the proposition that that collapses the whole case because all of the fraudulent activity but doesn't that justified but does not justify the first in the example ships where he intentionally disguised the true facts instead of taking the meaning of the standard deviation it was clearly set forth in the case in the start with the presentation exhibit six with these bogus cutoff concepts that have no support any other and so if you look at exhibit six of the patent he's talking about so many over this search artificially off there was no justification for that if there was no evidence justifying it was pure deceptive conduct council yes turk for me to imagine that a scientist with a pedigree like doctor who  has no personal stake in the litigation is going to come in and intentionally the fact that he apply an analysis with a different go figure that really hard for me to fathom given pedigree it's really quite fabulous and he doesn't have anything at stake in qatar for me to imagine that any attorney could lead him like a bull by the horns through a lying declaration so tell me how you convinced two district court judges to the contrary first of all  did i mean that for me was kind of difficult to get to the site and buy into but i just wasn't because of other things that he did throughout the course of the litigation to sort of try to wiggle around the problem that confronted him self was confronted with the well  and she didn't believe it if we go to you say there's no support but again if we're talking about unexpected properties and not identical ality wisely dissed doing what he would any scientists would do i'm showing you that just like to traitor with the second declaration being utilized because clearly one of the two he is absolutely right you've admitted as much one of the two is not still pending after that left office action but but that's why i keep going back and throughout the entire thing to the first predecessors for over thirty years when he submitted the first declaration and by the time he testified at trial he had been on their payroll for over fifty years so there's that backwards but there is constantly shifting there's first of focusing on it because it was the preferred therapeutic dose of course that's true but i have to i'm getting a little confused here why if you are if if this pattern will or at least some members of this pan proceed the judges can have been committed clear with respect to her findings and conclusions on the second and their anything beyond first office action then how can we affirm we don't even know what the district court would have done do we in deference to the district court but if we're sitting here saying that we don't even know what to do we know for certain what the district court would have concluded with respect to the case in its entirety if she didn't consider the other  i think if you look at her or in two pages and you think about the kind of findings she made about the lack of belief in the support for those lines that is and then the only reasonable conclusion i would suggest is that deceptive how do we know that we didn't change your findings here on her if she really knew that she was considering something that had a alternative reasonable explanation judges limit the immediately preceding question the central question throughout the prosecution was this it conveys her view that even if she was wall about the meaning of the third of his actions she still found  word inherently despite the fact that all of the theme to think that he was focusing on one of three right well then that's the other that's the other issue i'd like to address because i don't necessarily agree with mr ledge all the patent office said in the final office act was the the claims are rejected over one of three for the same reasons previously stated mr dunn was wrong she did not say i specifically withdraw my want to rejection she did say for the reasons they were rejected for the reasons previously computer he said identical or nearly identical reflecting the fact that she's talking about one or two i want to three will miss one the words are only nearly identical correct reflecting the fact that she's no longer talking about identity to happen if they wanted to say well it's still under the under the  still imply it with well i'm saying that the district court judge did not commit clear error because there is an ambiguity in the office action where she is same that is i'm i'm objecting to rejecting the claims for the same reasons previously stated although she says one of two if she never specifically would drop with the group one of two so there is an ambiguity there but what the district court judge said was ok to find wrong as the court pointed out well it's still up the evil and in fact when she judge was saying actually same was absolutely correct and the absurdity of the argument that that event is making here is that all that comparing the drugs at different dosages doesn't prove numbered paragraph eight that first declaration was meant to go exclusively to obviousness are you thinking she made a fact finding that that is still an equitable conduct intent with what she said was she said in addressing the issue with us in the case on she said that it their whole argument begs the question of whether or not where are you in her opinion just so i can make sure and damn what it is you're talking about she always said nearly identical highly similar minimal differences might be differences and she clearly was talking about one of the three at that point and when the district court gave this alternative statement what about  and clear that that's not enough on page fifty four of our blueberry we say and the seven zero seven point zero seventy eight and also the federal circuit case paperless accounting versus bear rapid transit system and i gave an alternative holding i have two comments about that one is that given in the judge's view nineteen times that compositional difference was the essence of what was involved in this case her mind but what about the following statement because even if it's not this is my finding i mean what about that she clearly didn't ignore the possibility that the third office action no longer continued the one zero two rejection