a sealed plastic container where it is where in the composition when stored for at least five months degrades no more than two percent there is nothing x dividing it by the factor of twenty five is hardly invent concentrate and there is evidence in the record which are not disputing that that was stable at the relevant period but this was a much more is a much lower concentrations version of precedex and in fact there's testimony at trial that's the lowest concentration anyone had ever worked with and so there is a question of whether or not that would meet the stability property this at five months i mean for mechanisms really there was a very low concentration two percent of that is obviously even lower and so the question was how can you show at five months that would have been here it really achieved that there was no prior evidence in a prior art no actual data in a prior art showing would meet that property and so to prove its obviousness case percentages can be relied on the doctrine of inherent steve and we don't think that on the record before the court reversed we can there's a legal error and a factual error we think that the district court ultimately did was examine the data from the committee on prior art embodiments either made by the inventor or with the teachings of inventors on work and based on its examination of that data it drew the conclusion that this property was twenty one dollars met the two percent limitation the district court problem that included that inherent she had been proven is that correct that's what this report help us so that's why i don't understand how we could possibly find clear error and that this is not a small problem this is not one that this is twenty one faction's and i understand that a different district court based on the exact same reason different conclusion but there's no collateral estoppel here it's different defendants are entitled to make this challenge and maybe it wasn't clearly erroneous in the other case and it's not shouldn't have been good enough for the district court to reach its conclusion it was inherent in your burden for you to raise it is like to judge the points judged by greys to you making a lot of arguments now why the district where should have rejected those twenty one badges but the district court either didn't have those organs in front of it at all or if it did it found against you and you know what that's just weighing of the evidence so we do that i want to give misimpression of what arguments we raised but we didn't raise below so here's what i think we did raise below i think that we clearly said that the inventor's own work wasn't enough to prove inherently that's an argument that i think everyone agrees we made and then the opening statement i know is not evidence but in the opening statement i think we laid down the gauntlet and we said look if they're going to prove inherently they're just going to rely on the inventor work that's not enough because there could be many differences between the inventors on work and the allegedly obvious combination and they decided strategically not to argue that the specific manufacturing conditions there disclosed in the patent are obvious they could have done that they could have said all these measures that are in the patent were obvious but they elected to construct this alleged just generic allegedly obvious combination without those features and so we had a very general testament i'm not saying we've proved or even try to prove that nitrogen specifically affected the outcome and all those other things that so i think just two things about the testimony st of all this report discusses this testimony that's rock stable in the portion of its opinion addressing reasonable expectation of success we're not just criticizing how the district wrote its opinion i think it's more substantive than only under very stringent conditions and then and this is i think the key language a pos he would not have expected a lot of chemical change to occur in room temperature storage conditions for five months and then this report was case law saying that the expectation of skits accept excuse me  only be reasonable not absolute so it's clearly invalid in this evidence under the very different standard of reasonable expectation of success vs clear and convincing evidence that a property necessarily exists and i think that if the dist page forty she made a fact finding based on the data and the testimony of mr camp which is discussed on page thirty five and that's the problem for you i don't see that there's a clear error in that fact finding that inherent in which she morphed into this reasonable most recent on chemical properties i'm not sure i actually understand that portion of her opinion but she had already made a very clear fact finding based on the actions and the testimony in advance of that well two things about that st of all i think that the fact finding was been i may have gone through that inherently portion of her opinion many many times and as far as i can tell it's based on the non prior data this issue of the compound being rock stable that is testimony that's in the record but that is testimony that was discussed later and i don't think that just the qualitative statement of something being rock stable is enough to show an inherent property of something so to the extent the district court didn't rely on this rock stable yes they said no that's not alone there were twenty one separate batches every thousand batches the step that's crucial is to show that the relevantly similar to the allegedly obvious combination ok and the record is clear on the face of the patent that all these better you know batches were made under this particular condition so i'm not saying we put on a case about those considerable portion of our of our case at the trial and i think that when the trial started we made clear to the court that it wasn't enough just to show from the inventor's own work that you can get to the generic allegedly obvious combination because the  particular conditions you've got to draw that link as part of their affirmative case and then there's certainly testimony in the record that the inventor's own work was made under particular conditions i mean that's the case that we've presented and so i think it's now incumbent to show either that those conditions were obvious which i think they made the true teacher decision not to show or that you can draw the link that you can when those conditions aren't there you can achieve the same outcome and i think that the reason that there is a somewhat unorthodox and parents a case and i'll say one more  i'll sit down it's a somewhat unorthodox inherits a case for seniors can be raised because they're trying to prove this very particular numerical property of prior art based on embodiments that don't come from the private yes they're trying trying to prove property that is apparently inherent in the quote because there's nothing in the claim otherwise that produces that property that has to be inherent i don't think it has to be inherent i mean i so just cross examined dr kip and make clear that at least one version of the kinetics model he said was pop possible would spit out a result in which the property wasn't in here so in response dr kit argued and the district court credited this testimony that you that's true your honor because i mean the specification describes these these various steps that exist so i think it's enabled in that the specification to describe steps that were taken in order to achieve what we're claiming as the result which is distinctly not in atlanta it's not in the claim i know and i think me please the court tacking on a property to an obvious invention does not make it patentable this case is about taking the prior commercial product of a drug in water in a glass bottle and adding more water nothing else was added to help stability found that for ducks meditating in view of all the data at different concentrations concentration did not make a difference to stability and that was supported by expert testimony that further added there's no reason to think that concentration would change for this particular drug given its properties so as to the two percent decrease property therefore a spear in our do something that it didn't argue before it has these factors listed a through f in his briefing it speculates may have had a change in the outcome but that's if they had argued it and if they had evidence to that effect and in this case what we have shown all through the free thing and the district court's findings is the two percent analysis was supported completely by all of the data universally and the expert testimony and these a through factors actually if we looked at the evidence now contribute not suggest we should but even if that happened still only supports for as any as copy it does not support any question that there could be a stability issue even after taking into account all of the new discussed and reason what spectators of success in any event your honor's question was treated completely separately so inherently question was completed including both the test data and the evidence that the expert dr kip had offered a trial i would just add some additional points based on what counsel had argued one is that there was no strategic decision to present some issues and not others the issue was presenting the case which was the data in the expert testimony and responding to any arguments that have spirit made through the trial and through its post trial briefing of note they did have a formulation expert that they could have asked any of these questions to but they only had one topic one subject matter arose in that testimony about this rock stable issue and that was theoretical and nothing else no questioning of the support of the data that was presented here and finally add that if it's not in the claim use variables that are not in the claim do present some issues because that is making it what the products claim into potentially a process claim or product by process plaintiff aspera wanted to add other variables or do other things to improve stability they could have and should have done that here they did not and instead what they're trying to do on appeal is read a example five and find variables that are an example five of specification even though that was not even the example that supported the stability claim at issue here claim six is supported by example six there was one experiment that was done that one experiment resulted in this two three percent machine at five months and that we all agree it was the outer boundary of spirit calls that the outer boundary for doing nothing at all and that's the evidence showed that there is nothing that was specifically done for example six nothing is said about that still only gets to the two three percent with the district court made a nother finding factually that that was about two percent and in fact credited spears inventor testimony that two three percent is within two percent in the context of the p so even before reaching this about the added additional room and breath to the scope of the claim there was no clear error that the spirit has identified and for all of those reasons and decision should be affirm you your honor i just like to address the question from judge moore about the potential harmlessness of what many of us the air in the district courts discussion of reasonable expectation of success i don't think that that can be regarded as harmless error because as as counsel described a very important portion of the inherent see case by for serious cabbie was not just the data from non prior art but this argument that this was brock stable and therefore we would expect to see it in any embodiment and not just the non  that were studied the problem is st of all of course as we explain in our brief that kind of qualitative statement is not enough to achieve this particular quantitative threshold of about two percent decrease at five months and to the extent the district court analyzed that under the wrong the reasonable expectation of success standard i don't think the court in just sort of separate that from the portion of the opinion addressing inherent city so if the district court understood that rock stable analysis to satisfy a burden under a lower standard then i think that the  and if you take that out and you're just relying on the non prior art and body mints that may or may not have been the same as the generic allegedly obvious combination i don't think that's enough evidence to show inherently where the very least i think the district court should have another chance to make that extrapolation that we believe