having to work closely with him for the past year as my law clerk i think i am thanks on my first hand experience with him i am solely convinced he has all the necessary qualifications and character to be an outstanding member of this bar he's been a he's contributed to the work of my chambers and to the work of this court and for that reason i am pleased to formally move the admission of kaz's a member of the bar and is in good standing with the highest courts of california and the district of columbia i have knowledge of his credentials and satisfy that he possesses the necessary qualifications authority and so there would be no opportunity to have zero twenty all right i'm just trying to remember i don't remember anything in the prior art references but specifically said anything below the number of fifty milligrams one hundred fifty milligrams or less but also the academic poster of the aca gym poster is adding years only for study but they published before they found the applications and within that study there is a chart that shows a lot of lower doses of quality and excluding doses within the claimed range twenty milligrams for example was able to provide enough section with sources in six out of seven individuals more than eighty percent and that reference what part of the jack pan reference said that the reference to a one nine one zero zero have a chart that explains how you can go lower with a lower dose trinity and within that same reference there is discussion that the purpose of quinidine or the goal of the study that they were doing was to find the minimum amount of the minimal amount of quiddity that could sustain therapeutic levels in the blood that's a good a one nine one zero zero right and the judge below determine m and in the person's bloodstream right the court made that finding and it is one of the errors of the court but when you look at the prior as a whole you'll see that that's incorrect for example in the applicant poster you see that showed that more than eighty percent of the folks were able to have enough dextromethorphan in their blood to be therapeutic that's assuming that sixty is is high enough that people of corners kelly are back in two thousand to believe that sixty three was enough was a high enough amount in the blood that's what the prior art show but but the district court found otherwise and now we have to ask ourselves why was that finding clearly erroneous when there court looked to were seven years old subjective beliefs which should not be considered here but also it was based on testimony first of all  to work to it's not the active ingredient here available and you have the teachings of the active poster which shows even down to five milligrams of quinidine per day people were able to get an effect in says that it can be anywhere from zero to one hundred fifty is in the over three application it says less than one hundred fifty milligrams asleep to work but that's going to rage a range nothing about claims otherwise because it wasn't read it was not discuss specific clinical trials now the reason is that we have the same disclosure of the one hundred fifty milligrams range below in pretty it just doesn't seem to me that that's clear enough to actually disclose the range i mean it doesn't say anything about what the lower end is and i believe you know the public to guess  that one hundred fifty or less for a number or less is a sufficient range that if somebody you know decides that you don't need a second drug at all that they're going to say a hundred fifty or less included zero and that seems hundred fifty or less as one would have understood at the time to be what would have been an effective dose and at the time everybody thought that one hundred fifty or more was the fact that that's a first that's not the standard of just such at fifty is an example but is not a floor and nowhere in the reference is there any suggestion that there is a floor that there is a fifty year itch or that you can't go lower and so  no suggestion in the reference either that or less than this might be expected to work the suggestion is is within the language of african believe this would work and it's a rage but again under the course was not discussed at all not a single word of testimony from any sort on that point again when the i assume when their experts review their reference they would you do tyrants for what it just flows they said fifty milligrams a day with milligrams of q quantity with sufficient to convert several people from an infected metabolize or to a poor metabolize description thereby creating a pathway for the d m dosage to go straight to the bloodstream yes or that would be the logical conclusion once you become a poor metabolize or right but it shows nothing about deficit whether that would work to treat a certain at the levels discovered after make  there's no evidence and again others experts never said at the time person whose records go here looking at that evidence whatever concluded that this would have been as acacia street in fact they went further they said that there's no correlation no room even if we could extrapolate from that that study to disclose a range given that this is a factual there are other other to going the other way without make it clearly erroneous regard to the active posters i believe the number sixty or sixty three i think is actually number if you look at each and every other piece of data that you have from the smith abstract where they actually dosed patients to see a physician is treatment all twelve of those patients had more than one hundred nanograms per load so that's what they are was and that's what they are talk about and that's what the judge found on that and then there's the example to the zero two four eight pattern right where there was a patient that had something less than so if you're honest there were funny suspect in that as well which would remain unchallenged and not shown to be clearly wrong as those findings were that that particular example was discredited when you go the i would not rely on it because of the faults in the exam also that your district court found that you wouldn't just look at that one example i will ignore all the rest of the evidence including other evidence that was supplied in the two forty reference for example examples three example three the next example shows i have a much h were they we're talking about two camps in the same pattern i guess one something that we should just kick to the curb and the other one is terrific and we should embrace this year out of the reserves for testimony concerning example three where they started and stopped the patient information for the patient example three we have more of that information for example three again from a gesture that's not just talk about chemistry let's talk about all the evidence because once from new york we presume to look at all those and you have to look at the smith abstract also that is it was a data point that didn't factor going forward with regard to clinical work when you look at the reference to fifty three reference in particular the word less than was used a number of times the words less than never appearing in the claim for in the disclosure claim talks about not exceeding and some of the other  to say that something should be worried about that's the only way because you have to try to retrofit that sample into invention you know that already exists that's called hindsight parsing to do a do over here if you will your honor and s its findings we find little more than lip service to that effect they did consideration of evidence is not the initial consideration of events is not the public role this court has rejected finding eight three three to again unsubstantiated turn the argument regarding the meaning of technical evidence again we heard that we saw that in the breeze with regard to what claim seven what deals fifty three needs it should is no substitute for to commercial success there was not a challenge to either the numbers for the next not a single word dedicated to challenging those those standing on rebut it the only argument there was a blocking patent argument which quite frankly your honor it doesn't make a lot of sense in this context because the patent at issue the two for your patent expired one year into the law when you run out of time and did have one more question this claim covers ratios of twenty ten forty twenty but and so i understand it your client didn't actually run tests on robust beyond anything they could have thought of that they then came up with the invention of lowering it even further it was eventually proved out later and subsequent testing ok there's no written description case in front of us now ok ok one five seventy five to eighty six that this range is disclosed within the less than one hundred fifty so it is not true that all experts said that the only thing dr carson did say is that example two i wanted to address the issue of it being dissed disregarded by the court by some sort of theory that maybe is not enabled but this is a one of three case an example t o is can be seen by one of ordinary skill in the art and can be read for what it discloses and in fact our expert stated that that example should work and so should the others but in this case that reference the two forty eight patent is looked at as a whole it for all that it teaches i also wanted to address the fact that the court had sixty three page opinion but interesting that there were only six that on a number of grounds but one of the issues with teaching away is that even has absolutely no prior art shows that you should not go below or below a certain amount there's no teaching way there's no criticism there's no nothing in the references that say do not do this that cannot be there for a teaching or way with respect to unexpected results again taking a look at the a reference the poster does tell that in a dose of twenty milligrams of quinidine or a day that one would expect to have enough b m in the blood to be therapeutic so this