chemically distinct they are chemicals distinct but the inventive process is one and the same i can point to one particular part of the record the doctor saw years testified on appendix four sixty nine that the are the work to find the properties on the right hand side that give us antagonism and give us proper pharmacokinetics so the r d york already solved the problem of finding a drug candidate biologist but he never really described the skill level for such a person he never said that that's all unary skill he never said that the week so many months possibly of work would just be routine he never said  data you will never be able to get good results and it will take thirty years instead of the three so there's no testimony from dr sawyer against any of that he never said if a skilled person came up with something reliable that but then he told them to destroy everything and and act like they've never done it right that that is a disputed point during trial i understand the judge put in a legal error when you say it's a legal error i mean there was there was testimony that that that there because these compounds are chemically distinct that it wasn't as easy as you say to go from one to the other you know the testimony was that the two compounds are different so they have different properties and might be unpredictable that's all we need testing after you do the substitution  fingers exactly on the issue here the decision below turned primarily on a credibility determination by just closer he was faced with diametrically opposing stories with respect to how the series inventions came out dr chen said he tested a fifty one in february of two thousand and five and told dr ruth that the results were good dr who said that dr chen initially didn't tell him about the test results and instead told him to destroy is lab notebook and conceal all the evidence of a fifty one and then only later said that a fifty one was inactive and dr john also testified that they were told he was honor a couple of weeks after dr who testified that he finally successfully synthesize the a fifty one compound so based on the findings that judge clearly sided with doctors that answer wasn't complete to me so dr oak synthesised a fifty one there's no dispute that he gave it to dr chan is that right that's correct your honor the doctor oak when at what times the doctor can tell dr oak certain things about that doctor who testified that a couple of weeks after he provided the a fifty one sample to dr chen which would have been in the february two thousand and five time frame he asked dr chen about the test results and said it usually took two to three weeks for dr chen to test the sample that he was given and it was at that time when he asked dr chen about the test results that he was told to destroy his lab notebook and conceal the evidence dr then  results were bad and that was about the same time that dr chung testified that he asked dr chan about the test results and was also told that the test results were bad ok and if there come a time when dr ch dollars compound it wasn't until about seven months later after dr chen had left for china that doctors discovered that his and m r spectra of the fifty one compound was missing and renewed suspicions were arisen with respect to dr chen's activity at that time the record shows that a fifty one was recent the size and at that time it was tested and the results were confirmed five i don't know if it's a letter or an e mail a report that doctor wrote to somebody at a commercial company that was made in this area and i think as i understand it dr chan view of that is that in that document in june of two thousand and five so well before the recent assess but after the january february events about  who sent to meditation dr chen did argue that it had to be a fifty one that dr was indicating he had good activity because he hadn't successfully tested any other new staff but the testimony was conflicting there doctor who testified that he was referring to a compound called r d one hundred and forty four it was a different scaffold then the other r d series he had replaced the central with the press will own rain and dr group testified that that's what he was referring to in that e mail dr chen said well that can't be because i didn't have any test results for r d one hundred and forty four i had a problem putting it into solution but we know that dr chen flab notebooks were not a complete record of this testing he admitted for example that he didn't document his testing of the c c one compound and lab notebook because it wasn't named so we've got conflicting testimony as to what was being referred to in that e mail it was dr chan's obligation to come forward with clear and convincing evidence on that point even under rule of reason analysis all he's done here is come up with a plausible alternative explanation based on conflicting evidence but that's not enough to establish clear air in the fact findings  judge klausner made i think it's telling your honor that the records show that nothing whatsoever happened between february of two thousand and five and not tobar of two thousand and five with respect to the a series a series compound so that absence of evidence there is evidence that further supports the district court's credibility determination that dr chen never communicated positive test results for the a fifty one other than the dr chen's own testimony as it relates to the keratin substitution and the testing and pointed out that everyone disputed his his testimony and there was no record but what about the issue of going from the r d series to a series and and councils argument or your friend on the other side arguing that that really wasn't a big leap and that once he participated in our day series development which everyone concedes that he therefore should automatically be entitled to inventor ship on a series concept your honor i think the record shows that it was a very significant lead to go from either the r d thirty seven compound to a fifty one well particularly the r d thirty seven compound in fifty one there was testimony from also important to note how these two different compounds came about dr chen serious because he contributed to the r d series compounds the development of those that necessarily if there's anything in common between your teeth compounds in ability problem turned out ultimately not to be an issue but at the time they were trying to solve that particular problem they were trying to come up with a chemical structure that would be effective for treating prostate cancer that would be outside of those and that was the reason why dr john testified that he called the august two thousand and four meeting the testimony was that dr john she's me dr luke came to that meeting with an idea for an alternative chemical or one that would have a sickly ring on the left hand side and in place of the arrow ring that was used in the r v series compounds in combination with isn't relevant to the conception that they came up with dr junger and dr who came up with the concept of the chemical structure for the a fifty one dollars compound in connection with that august two thousand and four meeting and there's a document that dr jones had prepared shortly after that meeting that lays out his rationale shows the shows the structures there there's nothing in the record other than dr chen's uncorroborated testimony that he contributed to that and again judge files are made a credibility determination that he did not contribute to the chemical structure of the a series compounds chemical structure he was the one who came up with the idea for substituting the purity ring into the r g thirty seven so we don't have any evidence that  dr chen contributed to the conception we have no evidence and in fact the district court made a credibility determination that he'd never communicated positive test results regarding the a series compound a fifty one censorship there's no communication between the named inventors and dr chen about the specific convention that's covered by the series  that testing had it occurred and had it turned out to be positive would have been at least relevant to at least those claims in the three patents at issue that seem to a positive performance of the structure not even if he didn't contribute to the identification of the structure we don't have any record of that your honor partly because of the way that dr chen presented his case below he didn't identify any particular claims of any of the three a series patents that he that he allegedly contributed to but at that point with respect to the series compounds that testing would only have been confirmatory to session of a chemical substance according to this discourse freshman fluting burroughs welcome just requires knowledge of the specific chemical structure and then operative method of making it  amount of compound of claim one that's more than here's what it is and here is how to make it that talks about the language i used before was a positive property to which testing would seem to be relevant and as long as he made a contribution again this is assuming away the fact finding about testing whether it would have been relevant to a single claim would have been titled him to or significant to a single the answer to the question on a cool too i would agree that such testing would potentially be relevant to issues there though that testing only occurred after dr chen was no longer there and there's no record in the trial proceedings below as to what testing was done with respect to the a series compounds after dr chen left for china so there are not even a record that that his unique testing protocol to the problem of curing cancer so even though the two contributions should entitle him to be a join a mentor in the underlying celsus which makes all of this possible is another contribution a separate contribution separate and thirty five and thirty six of the joint appendix where he talks about how difficult the process was he said it was the most difficult compound that he's ever made in that lab and he talked about how when because when ringback right and he said that would be a natural thing to do