i stand up for i move these men came and he's a member of the bar and his name good standing with the highest court of new york i have knowledge of his credentials and satisfies that he possesses the necessary a wonderful asset to the chambers he's very key to everything for which i need this wonderful but he is be brings a wealth of knowledge before me court comes district court with great distinction and he worked for several years as a lawyer and in the time he's been with me he has written a number of really fabulous opinions helps me helped me write really fabulous opinion and i really more than anything just enjoy getting to know him and i have learned more about the state of maine than i average thought i would and i sometimes refer to him as a maniac and he is constantly correcting that's not many people from maine call themselves suggested in our reply brief when the police raised the mootness question the janssen may have a cause of action for the basically the period of statutory exclusivity that it lost prematurely if we're right about what three fifteen to means that hasn't been explored we would submit that there should be explored on remand beyond that though the it would certainly not be i think if you put that aside if you were firm the p tab i think you could avoid could choose to avoid the three fifteen eat to issue but you wouldn't be required to do i think you would have the power to decide it's not moot and any sort of a jury selection that would we want to decide that question if if it's not necessary to the resolution it considers a large issue of statutory interpretation why would i mean it seems like doctrines like the constitutional avoidance ring in my ears when i think about something like this and think if there if there is a very narrow way to decide this case why should we decide it's the go the x staff unnecessarily unrequired and decide a really big or important issue well it is precisely because it is a big important issue your honor that i think you should decide this court as as do other appellate courts it's not at all unusual for the court to say well we don't although we technically don't have to reach this issue having decided this other issue this is an issue on which problem so do you have any evidence to suggest to me that this is a pervasive issue that is arising in a number of cases i didn't see it in your briefing well we did point out in our briefs that another district court and then i t c l a j have read the statute our way of that is that there that would suggest that it's really not an issue because that would suggest that there's one aberrational court that may have read it incorrectly in your view but that incorrect decision is entirely mooted by the p t o action so why why why should i reach out and decide on the issue when all of the other courts to address it has actually agreed with you well well clearly all the other courts haven't because the district court here didn't all the other apart misunderstood and also i think that you have an amicus you have actually you have a miki on both sides of the issue i think pointing out that there is a legitimate dispute here about do we have the  amicus who filed on behalf of the at police basically saying that this is going to bring the hatch waxman act to its knees if you don't clarify exactly what the statute means on the other hand we have the p t o of basically saying you should apply this as we do say you should apply the statute as written so there is a it's a no if you're on our side it's an important issue squarely present here it's not it's not moot as you know the supreme court decisions life already versus nike and cardinal chemical make clear and i guess not seeing the evidence i hear your rhetoric but i'm not seeing the evidence that this is an important issue beyond the fact that it's just an interesting question a festering term protection and what i mean by important is the impact this issue is having one existing location i don't personally see evidence that there are lots of course struggling with it or making the wrong decision or there's one court that potentially made the wrong city in your view and that entire decision would be mooted we could even vacate it by virtue of it's being looted in this case so i am not sure that anything you've said to me justifies the need to add clarity to the law and there are really a lot of people impacted by this well your honor i can't i can't point you to dozens of cases coming up the others the other way what i can tell you is obviously one court did in this case also if you look at and it's it was not in the briefs before this court although it is in the district court briefing there are i think it's fair to say dozens of district court opinions where the issue isn't squarely presented because that you didn't have the protect precise line up of the parties that we have here but the courts described the statute said you could avoid the question and the problem i think is if you wait in the meantime there certainly persis and you have this district courts in cases pardon me in cases where there's an i p r proceeding either going on or where a final written decision has issued not knowing what is the proper way to handle in french allegations and so you have basically the danger of multiple litigation of the invalidity issues when that's exactly what under  stop any further work on the district court action why didn't the district court just a state of the district court action right then and there well we we filed a motion in the district court saying you shouldn't consider in litigation given that there are now three different decisions finding three different rationales for finding all of the claims on panels what with winds keep going why go ahead and have a full trial well certainly obviously as i said we didn't think invalidity should be tried at that point i don't think anybody asked the court to to suspend proceedings on the on the infringement part of the case pending i assume with your honor's point is waiting and waiting till this the appeals from the final written decisions ran their course and then just enter judgment one way or the other a free flight wondering why you didn't for say and the district court of all of this well he seems like the most logical way to have proceeded well it's especially given what you say is necessary to avoid which is duplicative litigation between the p t o and the district court well and had in validity been the only issue it would have been a different situation but we on that an infringement hadn't been tried then you then you go back for a trial and meanwhile the jury once obviated you could have obviated all of the parade of horribles you're suggesting to me could could possibly exist by simply moving to stay the district court well and you know that so you want us to go out of our way to decide an issue especially interpretation which no other court but this one has in your view decided wrongly and all the other courts are deciding it correctly you nonetheless want this court to tackle it challenge it go through it and educate and resolve even though it's unnecessary in this case and you're saying because it could cause duplicative litigation problems in the future but i think that we've just shown multiple ways in which that could be avoided by the parties and so i'm not certain that you have by any means justified why this court should reach out to decide an issue that's unnecessary in a case well your honor client should want to be paying for lawyer services to resolve infringement of a patent for which multiple i p r is have been granted across all of the claims why the roads are clear why is it in your client's best interests to proceed even with the lawyers for your client make out by your client not stating this case well your honor i can assure you that the lawyers didn't drive any any decisions it was clearly the client's decision clients are not always well michael my clients are but that's a can't management reasonably be interpreted is keeping the patient in shape to continue treatment i don't think so your honor one well because it says it doesn't say management of obvious and say management of the patient it also doesn't say management of the cancer it says management of the tumor the cancer cells and the tissues and i think that if you're really if you're doing a broad interpretation of what reasonably can be interpretive management why doesn't that include that you can do those other things to the tom well which are for springs and everything else exactly for several reasons your honor one is as i said i think the focus on tissue tumors cells i think argues against that may not preclude it but i think it argues against that the other point is that the entire patent there's not any mention at all of side effects of pain palliation anything like it's all focused strictly on treating the cancer and it fit the definition of therapeutically effective amount when the patent talks about how much of each of the different agents of the administer it is an amount effective to treat the cancer so i think in the context of this patent even the the control of our management language there i think it is focused on treatment of the cancer itself meaning the cells tissue tumors came from the vine the second age obviously circles back to what what treating means but i think i think judge chance question may be a little bit broader than that it's an or question right right the and it says you know the amount affective to treat the cancer so it's focus even though steroids obviously steroids can have all sorts of other effects none of them are mentioned here and what it's talking about is the use of the steroid to treat the cancer according to one side what treat means in this in this context so you want me to read in think in the particular in the context sure what we're talking about prednisolone and prednisone is included as an anti cancer agent it's because it's an anti anticancer agents include antibiotics antibiotics are defined to include pregnant sound so i think in the context of this specification and these claims in fact it does it does mean anti cancer agent osip in seventeen inhibitor plus another anti cancer agent in this case prednisone on the end and i specification is as it is if the specification is quite a bit broader than the claims the specification as your honor noted talks about steroids and i was there the claim is pretty rough while the well said well treat cancer using element one element two right well except that it's saying exactly what element one and element two are whereas the specification obviously is talking about all sorts of different agents some of which may have anti cancer effects alone some of which may only have them  prednisone does when used in combination well time out i'm not sure that i understand that to be the record in this case and the one thing that was bothering me is that your briefing fails to entirely address the wockhardt i p r and the separate some kinds of patients to treat prostate cancer even under your construction of the claims that is an independent fact finding in that i p r which invalidates all the claims and i can see that you were dressed well in your briefing well i think we did your honor and we did it in a couple of ways first of all where well tell me where in your briefing you address that separate fact finding that is an independent basis for affirming the entire p t o decision even under  believe we said in the brief which is a couple of things one is nobody to the board didn't suggest and after least don't suggest that the board applied that let's call it the alternate claim construction wanted addressed objective ind thing is that even as to the what the board said about sar tor and supposed anti cancer effects of prednisone and there are there are problems with that but i won't get one of those right now the board never found that there was a reasonable expectation of success improving in providing a cancer treatment in which prednisolone in the combination has an anti cancer effect and in fact it could not have made that finding because can you explain to me how the claim construction affected the boards were infected in your view of the words analysis of the objective considerations there was some commercial success of it in there with this unexpected or need tell me how show me in the board opinion how you believe that they are wrong headed claim construction and lead them to the wrong conclusion about  i'm looking at sex and i'm on felt need and in every single sentence the board says administering apparatus around acetate and pregnant so on so i don't understand how their analysis could be read the way you just articulated it in court when they are careful to link the two together in their discussion well because i think if you look at the analysis what they're saying is ever ran a wrong was underutilized and that shows that there was no unmet need but that's not the relevant inquiry because the role of the the long felt need was not for a treatment based on average around it was for a treatment that was affective and it was only because of the combination and the and i cancer effect that a pregnant zone that that need was met by this claimed invention at the other  other things it seems to me and there are talks about sales i mean i don't know why are driven by the benefits of adding pregnant into the treatment rather own acetate is that i mean is that the sentence that you think reasoning what i think i am just struggling to see how your vision of the brain construction rendered the fact findings and objective considerations incest isn't wrong i  right it's talking about at the bottom of three sixty nine it's talking about the the supposedly the purpose of administer a pregnant zone to deal with side effects and then it says this at the bottom of this literature is discussion acknowledges the previously known roles of abernethy and president and the discussion of a court orders are generally contradicts the specific anti cancer role of prednisolone argued by the patent owner well that's the claim construction issue right there and that's a right at the heart of the court i'm sorry the board's analysis of commercial success so that's the problem but that's an example of the problem here i know where i think the claim construction i'm sorry your label for your product doesn't say anything about all the indications and usage of part of the label which is the important part i mean for these purposes talks about the comment from my misunderstanding something is there anything anywhere in the label that the pre itself is killing cancer cells no i don't think there's anything in the label that says that pregnancy on itself is killing there is something in the label somewhere that this person is on this quite handy because if you can deal with reducing the is the combination that was a value weighted in the combination that was approved for its anti cancer effects as a district court found in the infringement part of the decision but label precisely tracks the claim language so can i take you back to trying to direct killing but it's not comparable so for patients and seven now you need something else to handle all the side effects that comes with the main event and that could be something like that who go  that compensates for the loss of form that comes with taking the inhibitor so why wouldn't that be understood perhaps indirectly assisting in the treatments of without side effects or pain relief or anything like that so there's no suggestion that that is included in the indian ocean to anything in fact which is not that wrong in terms of going through the science explaining what does it mean to be your question and well i will say that i don't think this is that there was expert testimony in the record on this but i will tell you what i think directly and indirectly mean here directly i think means what's called the cytotoxic effect that actually it's  poison for those cells which is much like chemotherapy that's the way chemotherapy works in direct i think means as in this invention cutting off the supply of hormones that those cells need to survive i think that would be an views with in the court panel itself there is no absolute deadline i'm sure the board did its best to get the decision issued a timely manner i can convey your concerns toward management but i don't have  much standing here to say standing here before you today to say to explain what happened so i'm like i'm p r s where there are certain timelines that p t o is required to comply with for completion are you telling me there is absolutely no timeline briefing i believe that's correct and how long did it take for the board to result the entire underlying i p r in this case they're worth issues in this case involving jointer of multiple parties or so very complex case rising out of on the time to rehearing so i'd rather not speculate on that but my basically from seeing here a plus is that they're done reasonably promptly i mean i just i don't i shared judge chan's hearings have concurrent district court litigation but here there was one the panel board were clearly aware of i respond to those i'm not going to presume to tell the court how to deal with it what instructor and so i understand the exchange that you had with mr trollop before me but i we do think the stoppel provisions are important there is someone certainty about them the bar  final written decision is in the arguments on the other side almost all policy arguments and those are they really are all policy arguments and those arguments you think are really not in your eyes you think of the policy arguments make sense do you think this is a commonsense outcome what you're probably is the best result that's those are the policy argument should be addressed if you think if the petitioner thinks there's a bad result here they can explain that the district where the district court more than likely would issue a stay the other place of petition are going to go if they have a problem with this and i think may only occur and hatch waxman and should even occur there would be to go to congress which is equipped to deal with the balance between i know i don't like this case is a bit of the perfect storm in my mind and what i mean by that is i don't see how this situation presents itself hardly ever because i feel like most district courts would issue stays in circumstances like this which moots this issue i also feel like the p t o usually acts quite expeditiously and there aren't any how many petitions for jealous argument that this there's a real problem here and that we need to reach the statutory interpretation issue otherwise there's going to be real impact on real people out there and i was suspicious of the correctness of those assertions both because the district court could easily grant a stay which would obviate this problem in its entirety and probably should have and of course the refusal to grant a stay in that case could have you know remain nameless to us right and so we could do something if necessary as we have in the past in circumstances like  but but in any event a stay was a very real possibility in the other thing as i just don't see how often it's going to be the case that the p t o drags its feet as long as it did in this particular set of circumstances such that we end up in a situation that we're in because normally these are p r s move a lot quicker and so i'm just trying to gauge from you is the only open ended avenue that i was aware of was a rehearing where there is no actual time limit you know and so i was trying to get i'm trying to gauge to get a sense of how real is this problem that mr trial has in this case i agree with you that it's not very real because even if there have been delays in rehearing decisions this issue has not presented itself before we haven't encountered it before this case that has been in place for six or seven years as soon as possible so as to get the result we contemporaneously with the litigation ok thank you mr  that case because we actually wanted to get to a resolution of that case because we have a very very strong ballou the case we've wanted to get as to whether or not a stay would have theoretically worked for either side i'm not sure it would have in this case because at the time it came up in the district court the hatch waxman thirty month stay was in existence at that point and the thirty one state can be adjusted either lengthened or shortened based on the parties activities in the case so if one side wants to slow down the case the district happening at the district court that thirty month stay expired right about the time the district court issued its its decision in this case i think in october of two thousand so ok so you've you saw a risk that the thirty month stay might get extended out to i don't know for y months a no you're i didn't mean to suggest that we didn't we didn't do it because we saw a risk we like what was happening in the district court we i suppose we could we could have asked for a stay but we had a very strong case we realized that by raising the ship this issue in the district court we were putting ourselves at risk a little bit they could have theoretically one of the district court and if they won on the invalidity issue at the district court there would be a stay in place right now and that stay would last as long as they can slow down the peta cases which they've already proven their ability to do quite well and so what we wanted to do is get to the end of the case so that we could go on to the market that that we're going to get our expectation based on past experience on the amount of time river and i have no idea why this rehearing decision took this long was some impact and secondary consideration evidence i mean that would be the only thing you know yeah i i will tell you i read the wockhardt exactly that way i turned him right to the pages of it and i read it as creating an independent basis for affirming this i p r decision regardless of claim construction flood in the us and his response to me was not so much that i was wrong in how i read it it was more that yes but if they're still right about claim construction he believes that the secondary consideration terminations were impacted by claim construction right so i understood that to be his argument today as well which is that if the claim construction is somehow constructed or narrowed beyond board found that they know to be turned over iow beyond what it's a claim construction is not what he's arguing today it should be right that i guess that's what i meant to say the the board construed the claims under it under b r i to a certain extent and they are now arguing that it needs to be narrower treating needs to be anticancer treating only and that because it's narrow or that affects the case and we know it doesn't affect the principle case because we have to walk our life you are where ok so we get in the secondary consideration of the question is does this does the anticancer treatment requirement that they want to write into that claim does it affect the secondary considerations to the extent that we need to do over and what he pointed you today and would like to address just really quickly is the language at the top so what that shows us is that the board was not just thinking about this anticancer alternative in the principal part of the one of the three but had still had it on its mind when it got into the secondary considerations so the very sentence he pointed us to demonstrates that the board was actually thinking about the anti cancer nation notion of prednisolone that their argument is so it might book can you translate what this statement means the discussion of the court a can you explain with this idea i think what they're getting at there is that janssen had made an argument about commercial success that because we have commercial success and this defeats the logic behind the obviousness case or the standard practice it's approach and there's two answers to that the first is the blocking out which is actually the more powerful answer but the second answer is that what they attribute the success to is defeated by the fact that the prior art if there was success already or understood that because generally had to reduce side affects understood that from evidence other than start or because starts or teaches us about the anticancer facts and so what the board is saying here is look even if you have commercial success it's not clear that the commercial success is from the anticancer facts which you are now arguing but in fact it's from the known palliative of facts that the prior art talked about in a lot of different ways that's my understanding of what we're saying here back to the meaning of print it does your honor and so i'd like to address that right now i guess because the judge chen you raised this morning the issue about anti cancer agent or an antibiotic of the patent it discusses the need for what refractory cancer means and it says refractory cancer is a cancer that is not responding to an anti cancer treatment they specifically the inventor specifically narrowed what they meant by treatment a paragraph that begins that line three says as used here in and unless otherwise defined the phrase refractory cancer means cancer that is not responding to an anti cancer treatment so when the inventors wanted to talk about  type of treatment that was anti cancer they knew how to say just as when they wanted to talk about that and ingredient in their drug that was specific specifically at the cancer versus the steroids they knew how to do it so the board was on very solid ground when they sure and i think what they point to the parts of the brief your honour's looking at is testimony perhaps in the declarations that they think suggests that people skilled in the prior art would not have believed that start a war or i should say the president has an eight hundred cancer effect so what they're doing there is they're pointing to evidence that they say is contradictory and my response to that would be there may have been evidence that they perceived to be contradictory and it may or may not have been contradictory but that was all before the board the board so the fact that they want to suggest that this court should reweigh the evidence we don't think is is persuasive and then pages three fifty three fifty one and i think all the way to three fifty nine that is the board's discussion of reasonable expectation of success in the walk hard i are and the board doesn't just talk about it at the beginning of that it talks about it at the end so throughout that discussion of what one skilled they are would have expected the board is alternatively pointing to starforce teaching so even if this court would somehow conclude reach which should somehow have been narrower not notwithstanding what it says pretty clearly in the specification it still doesn't matter it still doesn't matter because the the one place where they've they've brought it up and we would say that they've actually they've waived that issue because of the baritone i guess if the court is asking is there affirmative evidence that someone was was dying to to to conduct these studies and they said well you know we just can't because of this blocking pattern so i'm not aware of evidence like that i think the problem is we have the blocking pattern so we have the exclusive right and we have the fact that no one did it and so based on the blotting pad and this court case law about it that's that's enough to suggest well there was an impediment you would not have done it and by the way that wasn't just a blocking pat but there's also the approval that there for your peer group so and their response to the blocking patents is that they may have tried to license it but the fact that they could not entice someone to pay whatever they were seeking in their oil t rate to get someone to to do the experiments is not overcome the fact that why would someone pursue a treatment alternative that they absolutely couldn't engage in because it's walked by a patent patent that we don't have to we don't have to wrestle with law doesn't say that the existence of a blocking pattern per se neutralizes commercial success of it's right not necessarily honored but i think that where case law has done is it depends on what is actually blocked and how many patents there are i would submit that this case is a little bit different because we have one ingredient that we can identify by its chemical structure and that chemical structure is exactly what the contents of the exclusive right in the  g so let me start with where the government's and janssen has had basically put all their eggs in the basket of saying this is a venue selection provision that's a purpose and i don't care whether what heading of a stoffel and we know that other portions of title thirty five or at least one other portion of title thirty five refers to the a stop of it's created by three fifteen eat too so we believe as we've breathed that the word stop will carries with it the meaning of a i don't understand ok you just keep saying the word stumble over and over as though that answers my question i don't get it because your honor if it's in a stamp a provision you have to consider how it's actually creating the ground teeth right it's well it's grounded we bring with that the baggage of a stop well as it's used in the district courts and as its use in equity and where it has come from and we also look at how the words that your honor is looking at actually martin statute law and equity view the rest of the words in that section and so if if i will embrace for a second their understanding of the words in the section and i think the understanding that your corpse and sort of court was pointing to and explain why it is that that doesn't actually make there any make any stoppel actually arise if we lost if the petitioner lost at the board the reason the words of three fifteen he to create the stoppel is because of the overlay of the presumption of litany in the district court if our hands are tied and we turn to the district court we cannot raise what we just lost and lost it the board over then we lose if the district court and the reason we lose if the district court is the presumption of  sample and whatever happens in that case if they want to say as the government did well it does at the end of the day at the end of the day it does because at the end of the day if this court affirms a certificate issues those claims will centrally evaporate and the cope any district court can follow any way that happens later one of the problems that i have with your argument is i'm not sure how it makes sense because you're saying well it's  isn't just it doesn't apply to all arguments you raise it only applies to all arguments you raised them last time right that's your that's your argument no argument your honor respectfully is that the stop of the three fifteen week two doesn't in any logical sense ever apply to anything someone raised or could have raised or anything if they're the winner it just doesn't apply to them because that's not how the stop whole works there is when when you go into court and you win on an issue that doesn't create any a scuffle for you in the classical sense in a logical sense is the government would say i think it would be to have sense the fact that you won you're not if you're just trying to apply it and we weren't even trying to do that mr kelly what if congress did intend to make it a choice of venue provision what other words would it have used other than the words that he used which would have used words that clearly cut off the district court litigation so as to avoid duplicative tribunals and what they would have done first of all they would have triggered it by the final written decision they would have triggered a stop all by the institution decision because the only reason we need to know that there's a final written decision in order to it me that doesn't really move the ball whether it replaces the words final written decision under three eighteen a with institution decision it moves the ball remarkably your honor to get to where they think it is so what they what they keep saying is once you choose a path that's your path and it cuts off the litigation that's not how three fifteen each to works you have to walk all the way down the path under their theory and get to the end of the path and then it cuts off the walk that you took on the first pass that doesn't make any sense so i think what your honor said if i understood it would have worked if they could have said once an i p r is instituted a district court shall not consider any invalidity arguments raising the i p r or could have been raised that would be a venue choice provision that's not what this says it says if there's an i p r and it gets to the very end and there's a final written decision then this kicks in the only thing that we know based on that final written decision is who the winners and who are losers just like you the section begins a three foot section three fifteen and the title of it's called relation to other proceedings or action so if the umbrella of all the section three fifteen is delineating exactly what they are alleging it is which is congress attempt to delineate when one k should move forward and not the other or when one should move forward and not the other why isn't pretty much most of what's contained within three fifteen including the title of the whole section and the state of civil litigation action and everything else the attempt by congress to convey quite clearly that they don't want these duplicative litigations going forward if that's  read not just the language of three fifteen two which is how everybody would have three fifteen in two but even if it one how i read it why taken in context with everything else wouldn't i overall look at this provision as one of which congress was attempting to make clear we don't want these duplicative litigations because the statute is more complicated now because there are a number of carol you want me to look at the word stuff all in easy and you want that to dictate how i understand it too but you don't want me to read the language in section the title section three fifteen even though this is section three fifteen easy to do you want me to read eat and use it to interpret to in the way you want but not three fifteen no your hon of three fifteen has different provisions in it and we recognize that the stuff is related to how one perceiving affects another perceived we were not it's not but to say that there are all choice of venue compelling the district court to stop in the p t moving forward and then three fifteen a one if the d j action is filed first that would bar the inner party those are choice of venue provisions and then if you re skip down fifteen b is where we got the one you're barred from so we know that if you are a defendant and you're sued under three fifteen b you can't move forward after one year and so those are where congress is saying this can happen or that can happen those are the choice of venue provisions three fifteen e two is simply no choice of venue provision is not telling you that the district court you have to stop once we know the tetons going to make a decision there's nothing else for the district court to do is there anything else you want to address i understand your arguments on this is there anything else off well let me let me pick up with three fifty two really briefly a couple of things on that one is as i think your honor pointed out the heading that they're relying on for so you only look at headings if there is ambiguity the laws are very clear on that the heading they're relying on is a stop all not collateral estoppel which is the way that they want the court to read it the the other thing that they completely ignore is the predecessor statute which said exactly what they want this one to say and congress changed it changes presumed to have meaning the true and there is a rational purpose here once that once the agency is deciding an issue courts shouldn't get into it and that gets to the institution decision point and i'm not completely sure i follow that but under three seventeen a the fact that institution decision was made doesn't convey inevitably mean that a final written decision is going to follow so you need the final written decision and it's not just because it's not because you need to know one because you need to know is the agency going to decide to liberty now on the the wock hardt alternative claim construction point first just more to answer your question our opening brief pages thirty seven to thirty eight reply pages time to eleven we do in fact address that and and our argument on that is not limited just t made that finding because the petitioners told the board he couldn't make that finding just as an example in the a marriage and petition and this is at twenty nine three all three of the appendix it told the board in the hundred eighty s there was a belief that prednisone might be useful for treating treating prostate cancer but by two thousand and six it was known that prednisone was not effective as an anti cancer agent they say the same thing at twenty nine three forty two and each of the petitioners experts took the position that one of ordinary skill would not have expected crowd in his own in the combination in two thousand and six to have an anti cancer effect we cite that in our brief blue briefing pages thirty eight to thirty nine and we quote some of them but if you if you look at those references in the in the appendix they're very clear on that there was no expectation of success in achieving these claims with pride in his own having an anti cancer effect another thing i wanted to turn to eight by not by two thousand and six even sarkar himself recognized that prednisone alone does not have anticancer efficacy also the standard for looking at p s a had completely changed drops of thirty three percent were not considered that wasn't even a report response you needed a response of at least fifty percent of a certain duration before it was even considered evidence of activity much less efficacy in treating cancer so by the time and as a marriage recognized early on there was this thinking that prednisolone might have an anti cancer effect but by two thousand and six that had been completely dissipated in two thousand and six is the relevant time now on the there was also one think that we need to overturn the board well then i guess you shouldn't be but they but that's not the finding the board needed the finding was a reasonable expectation of success in achieving the claimed invention the claimed invention is the combination with pride in his own having can't get cancer effect in the combination their expert said that was not the reasonable expectation at the time now on the claim construction issue a mr kelly referred to column four and the reference to anti cancer treatment but what what he loses sight of is that prednisone is if it's expressly defined to be an anti cancer agent so everything he said about this supposed distinction pardon me between steroids and any cancer agents whatever it applies