points today if there is time but before getting to specifics let me summarize them first if one doesn't confuse the in new york minute standard with the joint inventor ship standard or mis focus on post invention work all claims here are invalid second if one doesn't incorrectly treat anticipation enablement as requiring more than skilled artisans ability to make the standard then all claims except twenty five and twenty six are invalid under one twelve and finally if one it hears to the right skilled artist and perspective in judging what the vulgar article teaches the same claims are invalid for obviousness i'd like to begin with joint inventor ship because the facts we rely on not only on controverted but in fact come right from this court's cooper opinions which explain what cooper did to contribute to goldfarb's july's seventy three conception and reduction to practice of this invention not to later answer is that gold is that cooper's contribution to goldfarb's july seventy three conception and reduction to practice was significant cooper's year long technical efforts were central to developing the thing implanted not and implanted by gold far and then examined to arrive at his invention and in claims that are to the thing implanted not to techniques of implanting cooper's contribution was significant the facts i think are really quite simple in november of seventy two after a year of graft development work cooper undertook a three structure experiment july of seventy three i'm talking about everything that leads up to that so eight months earlier november of seventy two cooper having already spent a year with doctors refining various  grafts decides to in gauge in a three structure experiment fine structure core structure in a kind of medium structure he sends those graphs out to various doctors in february he begins to get results and that same really the same week he and his colleague mendenhall at for contact go far and for the first time introduce dr goldfarb to e p t efi material which he'd never heard of then in april of seventy three with new results particularly the results from dr sharp coming in on the three structure experiment the new results showing the course which is to say the longer fibro structure the most promising but too thick cooper has his assistant de make four precisely four six inch graphs sends them to dr goldfarb with a letter that says these are the most promising ones yet expecting them to be suitable as vascular graphs he asks dr goldfarb to implant them all of this is straight out of the cooper one cooper two opinions dr ct far ben takes one of those six inch grafts cuts a slice implants it in the dogs and six weeks later harvests it examines it under a slide recognizes the international distance single graft provided to him by cooper in the april seventy three letter which is an embodiment of the invention that cooper's contribution refining the graphs to arrive at that embodiment significantly contributed to dr cole fargus conception and reduction to practice of simultaneous redox conception and reduction to practice when examining the slides after examining that two seventy three wasn't if he had we wouldn't been here because we'd have the patent and the critical thing is that there is a legal difference between the soul inventor ship standard or in the particular  situation the enormous standard the inurement standard which required cooper to have in his mind some notion about fiber length which is the same thing as international distance he didn't have to recognise that what he was sending had it but the court the reason cooper lost on in your mint is that he didn't have in his head a notion of internode will distance that's not the joint inventor ship standard joint inventor ship  is properly awarded whenever there is any significant contribution to the one who conceives and reduces to practice but doesn't there have to be some collaboration oh yes but there was plenty of collaboration remember collaborate and requires require communication of the full invention and there was obviously an open line of communication cooper sent dr ben far first some material in february second some material in in april in fact the material that embodies the invention plus two research reports the letter itself says i'm going to continue communicating with you as new research comes in dr goldfarb at bendix page nine three seven seven betting who had just come to work for cooper in february or march was now the go between and every week or two that from who are coming to goldfarb and sharing information and back and forth and taking the results back collaboration is not i think a serious issue here the question is simply whether the objective work that cooper actually did which i just described the flu or the july seventy three invention was a significant contribution to that and i think it's right to say that bart has no evidence contrary to any of that none of the other gore employees who have disparaged cooper ever once denies any of those documented contributions well of bards evidence is in fact about post invention activity remember what happened was go from gets the reduction to practice of a single dog most of his experiments fail he doesn't have anything that can reliably work in humans which is the object is not required by the claims but it's the object so with lord they create a sixty four graft experiment after the invention here after july of seventy three members that is the date that goldfarb got awarded this invention and they then then undertake a year's worth of refinement activity to create what could her called an ideal structure a structure that would actually be useful in humans that work what is necessary to arrive at something well beyond what the claim requires but that's not the question for joint inventor ship the question for joint inventor ship is what did cooper do to get goldfarb to the july seventy three stage  no no it was a joint inventor ship was not decided in the in the interference and why wasn't because at least under i think what was called the interference standard questions  to be decided by the board there was a little bit of invalidity determination by the examiner at the initiation stage though not joint inventor ship joe didn't or ship was not part of that but that piece of it on limited sort in the district court the district court denied that motion i think it twenty five seventy eight of the of the appendix and bar has not appealed that so they're going to cut you off but your time is short and i want to hear distance within the claims is actually disclosed in maxim out of my picture that's enough because there's nothing else missing in particular i want to it's just a little snapshot of these  one that's all you can put in a picture where you need lots of magnification second the testimony is going to happen that was represented oh and we stand on that was consistent throughout and there is no such evidence no that's wrong we had such evidence and they had no contrary evidence in particular our dr weil or said when i read a refereed journal with somebody a doctor describing some some device  i understand that to be representative of of the of the whole device dr anderson their expert when he did what he thought was missing from  in particular at the transcript page three zero eight nine he said something like well that's just a case report as though that had anything to do with whether it was in fact a one zero two publication it was clearly  of evidence that bard said went to the question of whether that's a moto was an enabling anticipation and i think that the right thing to say about that is that while that evidence has nothing to do with the correct legal standard the correct legal standard for one no two enablement is could somebody make what maximo show not was there a chain of custody problem where gore couldn't actually trace the particular material the particular batch or a particular lot the particular extrusion  that's just a chain of custody problem there was absolutely no evidence that anybody tried and failed to make what matzoh moto showed there was evidence that people couldn't achieve the hundred percent set success there was evidence that a lot of work was needed after july seventy three to create a working graph but the whole you're arguing that the evidence of whatever evidence here relates  question the question of whether there was anyone with able to make a system uniform or standard or some some reasonably uniform product that would produces results are no and i bet that the language that barbara introduces now to talk about that is this idea that the graph had to be repeatedly successful not in the claims not in the claim construction and the whole reason that there had to be undertaken after the july seventy three invention i did years worth of experiments by the arizona heart institute under dr goldfarb and others is that the invention in july seventy three was not repeatedly successful he had more failures than successes the question is whether the claimed invention could have been made and that does not require was not really present through with what's on your menu in your beneficial was actually hotly at issue at the case and part of the issue of mr toronto's discussion is that he gets the story wrong so we to take a look at the story and the evidence to support the jury's verdict that core had not met its burden by clear and convincing evidence showing that there was joining benefit what happened was that after a number of years of failures of being able to make any p t s d vascular graft gore approached dr goldfarb in february and they sent him a bunch of undifferentiated tube and said here please use these as part of your experiments dr go for was an academic and a doctor at the arizona hard to tear it and the jury heard how he had his own experiments and they said we euclid our material along with your work and he said yes and they sent him a bunch of undifferentiate you to never say a thing about why any of them might work or might not work because at that time the adventure the gore had no idea what would work  says that there was a second and they remark that there was no response your response agreed to the sooner the simpler that was sorted out as being the best s for because the april letter as this as is portrayed in that briefing is your trade here doesn't say or says so i will read to the court what it actually says and i'll explain why it was that the jury was atop the whole that that other evidence supported the fact that cooper was not joining we have penetrated the walls of the tubes this is important with many fifty to one hundred micron holes to allow direct issuing going through the two walls hopefully of these pathways will allow rapid from attachment of the neo into a circus the importance of that letter is that it doesn't say this is the best we have it can say we hope it will work what is actually transmitted dr will forte is a failed theory what happened was is that when they attack one more contact adoptable fart they had gone through a number of different theories trying to figure out was that they provided him these samples with the reports of the failures of others and the theories of others with these punctures that destroyed the microstructure he just scored the punctures and said let me take a look at the micro structures here and then he figured out based on his own knowledge of what would walk in the body that what was important wasn't making big hurdles into these things but he figured out what the jury heard uncredited was that he took a look at the parts of two that one punctured and he said what's important here is internal distances hard the nodes of tatooine that if they're too close together will prevent red blood cells from getting through to nourish the scar tissue that grows in attaches this to the bot so but this said this at this point and ask hooper to says afterwards afterward what happens if he were able in the time of april they provide this to dr paul for people seventy three as well as a bunch of other tubes that they provide to him that were worthless they then go their friendship was not an issue and the interference but that being said the fact that coop work conceived in june and the fact that he sent him these two moves in april before anybody conceived show there was no collaboration as a conception the invention all we have here is a point at which he sends the troops to go far with a letter specially saying he punctured the holes and here is that what we've had to date in terms of our theories which turned out to be wrong which a jury determine wrong and then they go their separate ways june cooper gets a conception july before gets his conception of national practice we don't have the interference which in turn means that go far as the first to invent but by april there is no invention by anybody at all ever cooper has provided and it is evident from his own testimony which the jury heard which is says here we punched her nose in it and letter that going far discounted and got rid of and then he went off and figured out the invention separately from cooper so the fact that cooper had a separate conception over here is irrelevant to gore far conception over here and the only holes in the tombs with a sewing machine i guess nobody has ever argued that that was an invention no one has ever argued that that was right so what have what you have your people and i apologise to the court because i think the war has misled the court in some ways by saying that this was the best attempt what you have here is it april before either party has a concession you had were providing go far too much as they provided before and here it's almost like they would be better off without the letter because the letter says here and here's the latest attempt and here's our theory punched holes through it and then you'll get tissue ingrowth one five discredited that testified he cut a wait that portion of two and then he went on to make a discovery that has revolutionize medicine and as part of this invention disclose the structure that go far came up with people then could not make it a working draft it's the very fact that matsumoto shows that little spec at the end doesn't tell you anything else to either say it's represented it will give you any other indication that this is the structure of a graph or that there's something there what happened was you have ended up with letter after letter for people saying tomato presumably we're using the same thing as you dr kelly wrote to him doctor eyes narrowed to him dr fiber pleasure to show in growth into these four notes just to show that this had been a working draft there's nothing in there first anybody to take months ago and then make a matsumoto graph then we have evidence that the jury saw over and over and over again from the world people from other independent doctors from doctors around who had much more ahead including fuller who had his own work was matsumoto and this very factual intensive pressure on the jury and what the jury saw was that nobody could make a graph whether it's a moto and figure out how to make it seem to this wasn't a question and certainly the jury was entitled to find it's a matter of fact that this was an issue of chain of custody it was an issue that moscow doesn't disclose enough and to this day i don't think anyone has any reason to believe more on the whole disclose a raft with an average international distance within the go far brain just all we have is that little spec and we have a lot of evidence talking about how variable tubes were at the time and we have in the pattern itself  we had to take samples from around the to in order to have a broad sample to prove an average you don't sit there and take ten thousand different notes and average up the distances you sit there and take the samples and then you say we have now on average based on a nominal or typical clearly does not even comply with that and it was made a time when nobody had any conception of the importance of internal distance or even that was a poor hammer worth looking at and then you have the facts of over and over get who are people going far doctors like dr campbell dad saying over and over again we have this and there's nothing we can do with it and i think the jury was atop the credit that went to terminal a muscle doesn't disclose the invention and b as a think you don't inventor shit i read from cooper to the letter to gold far accompanying the lot material that's the april letter in that letter cooper described the material as representing the latest attempt to achieve satisfactory patency rates in small artery prosthetics indicating that he expected the material to be suitable as a vascular graph that piece of in your meant went in cooper's favor cooper lost other grounds not because he was saying anything in that letter other than i think this is the best thing i have and indeed he attached the brand new sharp results which were results on the three structure appendix this is dr goldfarb testifying and what was your interaction during this time period in sort of late spring make hundred seventy three with mr get an answer from goldfarb mr didden would pay visits to the lab to see what type of research we were doing and to take back with him arizona heart ensued and he actually watched dr goldfarb take that one and that x point the graph from from the dot he was there all of the there was constant communication right after created and partially funded the sixty four graft experiment when after the recognition by by goldfarb it was perfectly clear that nobody could make an actually humanly usable graph and a lot of work needed to be done and work through debt and med of a statistician created a statistically sound experimental protocol and dr gold far with gore funding under took some of some of that so i guess the final thing i the joint joint inventor ship the needle holes have got to be a red herring right if goldfarb wasn't looking at the actual microstructure of the graft but was looking at needle holes he didn't have a reduction to practice and the whole interference dissolves the needle holes were just some extra benefit that cooper thought it might have just recently introduced that doesn't take away from the fact that there was a year and a half worth of effort to get to the actual microstructure that he sent to goldfarb which go far implanted took a slides of said oh under a microscope i now notice something can i there is simply no evidence that anybody had lacks the ability to make a math soon moto graph that is a graph containing what now even dr goldfar said i got no reason to disagree with what my own expert dr schoen told the p t o about flight fifty microns it shows that right in the picture because you know the size of the nuclei of the fiberglass and you can look at it and see and