good morning your honour's robert price plan on behalf of because there were so many issues that the judge's opinion raised i'm going to rely on the arguments we made in our brief briefs but i would like to touch on four items to begin with that i think show that the court's opinion was simply long wh start with the sperms with rights yes your honor we're talking about the experiments that were done by advocates and april in march of two thousand and one in april of two thousand and manual specifically says on paper examples should not be represented as work actually done it's just to make that clear aber example should not be described using the past tense we get past that when when dr sherman and he testified and he's never denied it when he wrote that patent application for canada you say that he's done something lie on and he has created or directed thousands of formulations on hundreds of mark the drug products and he fully believed that and his experiments on one or parole had shown what he did he thought he could write them the way he did he was mistaken and he has said that but it was not an intent to deceive at that time he wrote those claims because you that's what he did before finally got him normally when he submitted something say to a journal or when he was an mit he normally submitted something as having been done when it hadn't know what he would do i suspect and he wasn't asked this question he would work it out on paper and then if he felt he had to experiment to prove it he would do it in this case because he had done when a girl experiments and he expected mallette supposed to behave in the same way and there was no testimony that it wouldn't  other testing this is the result i suspect expect from this instead of saying this is the result i got from this i mean that just seems very disingenuous to me well i think hindsight is always a wonderful tool i'm sure if someone had told  not a news man to suit your briefs and everything suggests he's done this many many times is this his practice in every other case in two thousand he thought it was ok to do it the way he did even though the manual in two thousand had that express prohibition but there's no weapon stock to sherman had the man dr sherman was not a patton where dr sherman is just that is a p h d and that's what he did he wrote it and he said he thought it was ok he's not a panel or but he's been involved in much litigation in the evidence in the record shows that he was directing the litigation in directing the hand it was reuters there are cases when dr sherman does take an active role in litigation it is acid based chemistry and it seems to me that all the pandas presume a reaction goes to completion no it does more than that and in fact what the patent does and it talks about acid base reactions when it discusses the part when you look at the specification and he talks about the four fifty patent you noted that there could well be following the four fifty patent and acid based reactions what is the heart of this patent something different what is the heart of this patent is changing in a wet it talks about their words not mine the tablet core contains the following in active ingredients lactose magnesium oxide grows over gone magnesium spirit and gelatin nowhere does it say that that ab magnesium conflicts well you know i think that's confusing two different tests if we look at the first test that we're talking about which is after dr sherman had filed his patent application about a year that's what is the first test and that's found on a eleven to sixty nine written in dr sherman handwriting march sixteenth or want what he says here and what i find interesting about the judge's opinion the judge says the trial court said that dr sherman was guilty of now remembering that this was based on wonderful when you look at the documents the last two sentences on this document and dr sherman and i will admit par handwriting is illegible but it can be made out this is just was the case for one approach remember by march sixteenth two thousand and one dr sherman had already filed is that not one of the had done all the lab work on one approach and knew that he was converting prop magnesium so he says on this very document that this issue just as was the case for when are broke and sit rest to be converted to magnesium salt just like one a what he was doing was he looked at the test results above which was simply a test of intellect suppose i could chloride against the universe ask outlet which everybody knew was stable base within commercially soul and he knew one of the ingredients the magnesium base and he said magnesium oxide and he says in the last two sentences on this document this is just as was the case for when that's where he's reaching his and the rule in the and p e p is there for reasons that must be obvious in this case right in a case in which he's claiming a process a very specific process according to him although claims don't bear that out  that has a very specific result in terms of amount of conversion and that reason is very useful that stability if the process is never done we don't even know if it works right so is it  you have asked exists as a magnesium salt and then a month later in april still the very beginning of the prosecution has his scientists an appetite to perform some additional tests and they come to the same conclusion years prosecuting this patent he told p t i go over and over and over again and we counted it something like eight or nine times if you include dr lips declaration that unit i asked was a result of a process  reaction but that is i mean obviously a well founded speculation but yet is speculation that he have an obligation to report this must be the way that that your company is doing this to the p t o even if he doesn't know for that that's exactly the reaction he's talking isn't the core of your argument there that it one has a strong suspicion that an affirmative representation is false that there is an obligation at that point to tell the p t o even if it's just  people and then you at some point strongly suspect that what you said is balls you have some obligation to inform you know i think arguably yes i mean at some point you're getting into almost system a logical question about what knowledge is right  the suspicion become belief and i think you testified that it was a firm belief and district court found as a matter of fact that he knew right so as to your policy question i don't know i don't know where the line with me but i think there certainly comes a dr sherman needed to understand that this very basic simple acid base reaction to expand an unavoidable inconsistency i mean these are opposite positions and he was aware of the facts when he took the position in the benefit in the p t o and when he reversed field and took the position required to maintain his last you know it's  reacted and so he did legitimately get a patent by arguing that that product is not the same as his process and then it turns out that it is a process would just issue a stop will still apply there without any kind of briefing and that was stayed pending resolution of the appeal and it was judgment of works and himself who suggested at the end of his opinion that this is an exceptional case which if i may say so i think is further if i may dr sherman's patent covers more than just what regulation and the examiner understood that i'll get to where the examiner talks about that it's eighty percent conversion from a lexapro magnesium and let me tell you that  b has always insisted that it really matter to me because what we're talking about is this representations over and over again that the other patent didn't use reaction it was a it was combine and it doesn't matter what percentage you get if those are false as are false and they can form the basis for and that will conduct binding whether or not if they're not material and the examiner doesn't follow that and that's what happened in this case when you look at the if you go back to the file history and before i get there let me just say that in their request to admit file than twenty well plaintiffs you the fan in to c b said admitted that u c b takes measures to maintain the confidentiality of the manufacturing process for university admitted that you and this is on a one zero zero zero nine admitted that u c b takes measures to maintain the confidentiality of the manufacturing process for sherman right in his specification on eight one two zero six four noted that using the fought four five zero at the are capable of an acid base reaction he talked about it being capable but he went on to say it is difficult to control the process too as to completely avoid an acid base reaction in the making of the composition maybe the resume conversion but it's not enough for them to change that as what it was they were selling and that is what dr sherman gave to the patent office in every one of the representations about combined and not reacted always cites to the monogram because  the percentage where they met the eighty percent it's the process to make their u c b tablet which if it contains over eighty percent that's the process there step by step process bissett takes more than just putting in water and there's a reaction you were controlled and didn't get the eighty percent error i don't see anything in the records of every one of his representations but mr hughes made the representations dr sherman in his initial application in the specification talks about here's probably not right that this is what he thinks is happening so he doesn't continue to suggest that his process is different when he knows it's not he doesn't know their process that's the point they kept their process confidential as a result  and what what the examiner found is that none of the prior art showed conversion even though there was reaction none of the prior art showed conversion to eighty percent and that was a my question i'm sorry and i misunderstood it and she says is on page eighty one two three nine not the primary reason for allowance is that the prior art that's not disclose for fairly suggests a process of making a pharmaceutical competition intending lexapro magnesium emphasize the reacting part because the examiner understood the prior chilled reaction of the court goes back to in the file history page eighty one two three eight nine this is the office advice reaction of the examiner after the lip declaration after every statement has been made she says continuation of fide does not place the application in conditions for allowance because firstly sherman had suspicions but he did not know what their process was and none of the tests he conducted in two thousand and one show what the process was thank you ver