for rejecting that compound as the lead compound was that it was not specifically set out in the client for six patent by itself and this reflects error on the part of the smaller than any other this fossil and two different models there were the standard models for use in screening these compounds indicated to periods d p would be by far the would possibly probably be by didn't the inventor himself focus on the two peer he that was the first apparently the first compound that he made and then he made the other two isomers but he made the two peer first because he had a synthetic method to make it that didn't work for the other two isomers and then later he discovered a synthetic mess that are found only richer a method with that will work easily for all three but he did make the the lead compound that perhaps would be significant absolutely that compound was tested right away and was shown to be very very very active and then he proceeded to make the other two our summers there's no question of i think about the chronology the compound was made first and then and tested and then he made the other two and definitely it was it was it was look for companies that didn't show that effect and this one did not so for all those reasons the district court erred in simply focusing on what was claimed or how the hell p m g had chosen to write the claims and ignored the entire specification of the patent that there some evidence in the record that they think these are surprising results in the toxicity and different and so it's not necessarily so obvious that this would work the the the first all for peer does work it does this is not unexpected results it's whether somebody would be motivated to make the three beer having the activity of the two peer in front of her and in this case i think this is where the district court went to rock first of all and simply having a dose that is one tenth the dose of any other compound in the claim which indicated and the injuries expert confirm that that indicated that it was the most compound the district court also erred in the next step of the analysis that it took and that was whether there was a a motivation to modify what somebody skilled they are who was presented with the two periods d p and its properties had been most motivated to make the next step and the district court relied on two little snippets from an article and the snippets basically that you know it's not all that predictive it's not away and so in the corner and not know what to do and i think that kind of analysis is contrary to what this art is and what skill in the art is these are very skilled people their job is to make new compounds that's what the district synthetic chemistry and they are specially trained in phosphorus chemistry so they are not people who are there the people who pay us our tells us have ordinary creativity that's what ordinary skill in the art is and the court overlooked in dealing with this motivation is you know is the undisputed fact that these compounds are active as a class almost all of them are active to some degree this f molecule it also had like two periods d p it had a nitrogen atom in the tail that was known to enhance activity and to ameliorate this problem o is they are used different isomers of the same starting material it's an easy process to do the inventor said they said it was put in the pot forget it and it works the same for both compounds a common practice among people skilled in the art when they made these type appear in isomers was to make all three because people skilled in the art were motivated to do that that's their job and there was pointed out the record shows that there are eight examples contemporaneous with this invention that of commercial drugs were in the inventors did that so for all these reasons i would suggest that person motivated art would have been motivated to make this compound would have had a reasonable belief a belief based on reason that the compound would be active the fact that it's not precisely predictable what its properties are going to be is not something that's relevant to whether somebody would have had this motivation or would have had this expectation the expectation that the case law requires overcome a case of privatization but the case law the theme of it is that the unexpected results must be something that would at least appear to be likely to the reason that the case law talks in terms of truly unexpected or differences in kind rather than degree is a reflection of what we're doing when we say that a compound double because it has unexpected results we don't even get to the unexpected results issue unless and until the compound has already been determined to be proud of because it's prim alongst of the public belongs to nobody it's available to nobody in particular nobody can get a patent on it and it's if we're going to say that unexpected results and give somebody a pat then we are saying that the unexpected results take away what the public presumptively has and gives it to a individual or in this case a seventeen year period and it seems to me at least that the court should not do that or should not permit that unless these unexpected results are truly significant in the real world or at least appear to be likely to be truly significant in the real world that the appellate court and just setting a different unexpected results because of what it means to sufficiency of the evidence issue i think it's i think that the court would have to find should find as a fact that the unexpected toxicity profile three times better than that of two period there's no evidence of that nobody use that all right thank you focused on the two patmos together collectively say there are three things that the scientists need to consider in deciding whether there is a safe and efficacious compound it is potency for sure but it also is a thousand times the lowest effective dose of your art this is white so this is why i think is that is my statement correct it is a thousand times what many years later after face when face to face should be subject to the clear air standard the district court judge got to hear about all of the compounds he was making he got to see a document precisely at this point in time when  fact the only the only compounds in table three that have no toxicity problems and no and humiliation problems are not nitrogen  hundred there was not the best phosphate on the market in one thousand and five no one knew what the therapeutic dose was going to be no one knew what you were going to have be able to give to have a beneficial effect on osteoporosis that's why there was was involved in the field testified miss mccosker her perform the test testified that you would be concerned dr miller who had was working in the field time tested  expert in the shank and she p x to test said you would be concerned this would be a concern for your if you step back and ask yourself if it wouldn't be a concern why is that the office of the four or six patent make it clear that there are toxicity problems in table three and this is why i think the question i started with your honor on whether this is a factual question or not in which there are some deference owed to the district court whether it should be determined by clear error is critical because in this case there was one witness on the other side of who testified as to the issues your honor is asking about and what the facts and meaning case given before six and he went to the library to construct a theory that the district court was entitle to hear that testimony and at page eighty forty nine he said i find it non persuasive can provide a reasoned explanation for the meeting and it can be tested in the crucible of cross examination that's in fact what occurred and you know in order to and i'll come to the unexpected result question that your honor raised but the district court found as a matter of fact and one of ordinary skill in the art would not have selected true care as a lead he also found as a matter of fact but didn't benedict  testimony your honor he didn't single this one out this is the man who made true peer he's testifying that there are as he said you have to kiss a lot of frogs to get a prince he was kissing a lot of frogs and ordinary skills so that as a legal matter what he thought actually isn't it technically relevant to the sixty four thousand dollar question the question is what about the person of ordinary skill in the art and all of the people who were that's why for one of or that's why the experts testified without any acquit occasion that one of ordinary skill in the are looking at the four or six would recognise these four critical facts it's a dos you cannot pick out one and the specific claims that to me call out just one are very instructive but all of that has to be supported in our view by substantive found it to be at least compound the his opinion is written in a if no meat compound buffet but if it is no reason to combine both but if it is no reasonable expectation of success and i think it's important to go to that point because you have to reach each of them and you have to flip him on each of those his own design spaces on the motivation was the toxicity no route no  the way because of the parts this no your honor and in fact if you go to his opinion you will find multiple references success and the expectation of c s was critical here because there was a god in the field at the time of her life who wrote contemporaneously with the events going on here who said in black and white you just can't stride i think we're actually there are three separate issues here are the first is a question of recent expectation of success which is part of their burden to prove invalidity and that still exists after chances are because of the supreme court specific reference to predictable results and to kate at an ace i continue to apply that in finest on that issue pfizer had told the f d a that there was no difference in their results that was anything you have here at loose least two maybe three secondary consideration all of which are fundamentally all of which were found by the judge to exist and if i could use my last minute to address the unexpected results and to answer judge what's question about three to four peer this is i think critical and why the factual findings are so good these structures are not tr resorption in a way that cannot occur with true peer and for peer because they are physically in a different location in three dimensional space so what the district court judge saw was something that was sort of made up for this for this trial at the time dr benedict thought the the way it was claimed in the patent and the only thing the district court said about why there was no motivation to would have been no motivation to make that the next isomer was the teachings of dr fleischer that's all the district court set did not make all these subsidiary findings that mr leeson would would have liked to have may so it's all we have is whether we can say whether the findings of the district court made or erroneous or not errone