we are here to say that the district court committed two basic errors the first error was to sail to distinguish between this cases this court case law with respect to commercial uses and noncommercial the in the appendix as well of course as the participants had some knowledge of the composition that they received whatever lived whatever the limits of that knowledge to the core issue is not public knowledge of the invention her or several reasons first of all the policy that we're talking about in the noncommercial context is the policy that the supreme court articulated in the pfaff case which is quoted in this region and quoted again by this court in the in the  motion to keyboard decision a few years ago is whether the public expectation that knowledge was going to be taken from them has been has been violated and in that case the knowledge being taken from them is in depend those cases the court held that because the third party had not taken adequate steps to protect the confidentiality of the invention the inventor of last spat on of the stress i would say that it can't be heads i win tails you lose it can't be that where the third party fails to take action to protect your invention you lose and with a third party does take action to keep its own invention as a trade secret it can then turn around and say although we protected ourselves it's a public use with respect to you think that you still it still begs the question of whether when you say that a third party by the third party took adequate that is the definition of adequate steps different for a third party than it would be for  the answer is no i believe the question is whether knowledge come to do is question which i think is a good segue here the question is whether the not the invention was accessible to the public and we believe that in the noncommercial context the case was pretty clear that that means whether the invention the actual claims of the invention were known to the public and there's very good taste on that subject actually the netscape in which the inventor said this was not a public use because one that was one of the inventions this court held that there was a public views so i think whether you're dealing with a third party or not the policy is it doesn't change the policy there are two policies here one that underlies commercial use which we're not dealing with is whether you can the perspective of the public's expectation the public is often not aware of it and in any event is different so whether it's the inventor or somebody else who's given access to this knowledge the policy is once you have access that knowledge he take it away by then putting it under the umbrella of protection what exactly you mean by knowledge here you mean that the public has to have the ability to understand how the invention works or just knowledge that miss to mention anybody who comes a month for a new motorcycle but it's no one in the public knows exactly how it works but they do have access to it that would satisfy  one they had arguably whatever it is you're honest but on the motorcycles were they didn't have and what this court found in that case they didn't have was the invention because there we needed more than looking at the physical keyboard to commercial cases he said well they had knowledge of it and its know what the claims really are doesn't matter here it's just the invention is out in the public use and respectfully it doesn't matter it doesn't matter because the invention is not in public use it in there as long as people don't understand what the chemical make up your honor because there are doctors involved in clinical trials and in this case the doctors knew working action was that they were under non disclosure agreements so i would turn the question around the other way around if i just enough to take the pill without knowing what the invention is then in virtually every self administered clinical trial which of which this is one and there are scores of and they happen every year you have a public use problem if somebody files a patent one year and one day after the clinical trial which is a very good reasons in many cases this was a standard clinical trial in which the the patients were subjected to standard protocols they were told they had to return the drug they were monitored very closely by s inferences are to be construed in favor of the nonmoving party there's no evidence that those files ended up in the hands of a biochemist for all we know those files fell on the floor were broken wrist swept up and thrown away with arm and something that we might have a published problem if they go on the floor and broke it was wiped away from the garbage we dumped the record doesn't know what happened to them those are examples of the kinds of factual questions that would have to be determined before courts decide as a matter of law there's been public mentioned whereas it's a commercial public use and i don't know how to distinguish it from on sale but even this if it's a commercial public use and there doesn't have to be a disclosure quite features of the invention now i'm going to argue in a moment that that is not the law this quarter of a lot of supreme court but if it were would lead to wouldn't serve a search result that would allow abbie's to game the system and i argue it really is this very public use defense now let's did our studies we had stability data at indicated that we had very modest stability and when i say modest it really says that after a few months you have the refrigerator this formulation but under this law that  a proposal is for some reason we would have had to anticipate years before they have applications that one day they would put this inherent property and their claim and then we'd have to go to our patients and say because they have this ability limitation that we don't express we disclose what we're using or for entirely different uses to show there's no way we were made an ing on formulation as a trade it was the three years subsequent to that were she wears intercourse is walking around public obviously under other quote and in that case the supreme court dealt with this notion at public elements of the sealers centrifuge which was used without restriction to the inventor in this land and it's a it is even a more puzzling case in our case these patients aren't using their ey are the public those in their homes are the pub with respect to the day so the moment they take it out of climates it isn't up no matter whether it's in their homes whether it's filed the idea that somehow they would be paid to the people who in the clinical trial be asian exercise of trying to invalidate a future patent as opposed to get a drug that will help people in markets makes no sense to me frankly i don't the clinical trial was quote confidential and quote not available to the public unquote that's from eleven three three three eleven three three eight of the appendix so contrary to counsel said the gal cat did not give them it's confidential according to their own head of research whatever you say it's a public use for your cat and i would say that it has precisely gaming the system contrary to what we're doing and that's precisely what the public use duck and should not be permitted involve smaller parts and the course of wires prism was something very simple and easy to discern what it was just looking at but if you'd been complex and not something that question in a very direct way because i believe the cases make clear that the question is whether the invention it in public use and the holy case is a talk about the clear device being out there is enough are the commercial use cases ok the patent says