argument is claim seven patent which under very specific account your honor twenty patent claims a chemical intermediates and it sets out as it must the use of that chemical intermediate to make a useful argument that we're making is really comes from a combination of two landed cases of disco ok and both of them are critical for the first line of cases of the bikes on line cases they all come to self with  honor i would respectfully disagree and the reason i would disapprove the second line case and second line of cases is in re joely in re kirk in re fish and those cases your honour's are familiar with those cases deal with chemical intermediate specifically and what is the utility of a chemical intermediate and those cases are very specific in saying that when you're when you are claiming the utility of a chemical intermediate it has to be specific it has to be a specific first line of the seven seventy five which failed for lack of utility under the line of cases i just identified that the very first line under detailed description is the disclosures were coming in and in column one line seventeen under detailed description cases i'm sorry say you have to have a specific utility you have to you have to say this intermediate can make this final compound which has this utility and that your honor the answer to your question is this disclosure of serial number five for one incorporated you can buy reference to five for one was the pam attracted application so that was the application that led to the ninety three chip and if i understand  principles of bike are exactly what we have here because if you take fisher and jolie and kirk they are saying when you claim a chemical intermediates this is how you must claim the utility and then bite says if you with the expiration of that seven seven five claims the chemical in the media the public should be free to use that what was claimed for its disclose use the only disclosed use of claim seven that and that i think is out there is another way of another way of looking at it which may be useful so of course you have a claim to some some high patent which is a compound perhaps we can all agree and maybe judge jury would disagree  ok i would say one of the thing about this which is the all the arguments being made by the other side respect the seven seven five claims are not quarrel with the laws i'm setting it out they're asking you to limit sunderland's fact which has already been tried and defined in there the question exactly as it is in your case law what is are there to inventions here in other words is the difference inventive their argument has to be placing a fence and the arrow position of anti foley is inventive your hono drugs three and gone to the clinic ok and one other was designated by our experts as promising and there might even a quarrel over that those of the six that are shown here they all had a family there were none that didn't have a  don't look at just one piece of prior art called c b three seven one seven which is on this list which started with a fan on the to let me know and i had an issue with toxicity the toxicity was traced to lack of solubility preceding four decades thousands of empty foliage had been made and basically every single one of them had spent all every single one of them with an abject failure and no one ever turned them promising there was it would it not  all was particularly associated with success in this highly unpredictable art we had forty years of failure using phenol and enduring winners picked out a handful that he thinks works a little better than the other failures what's clear in this case though is the final countdown obviously departs from that and there was no teaching no reason whatsoever to believe that penalty would be better then final and so there was no reason at this court obvious  you might get the opposite activity in fact a reference relied upon by their own experts as the oversimplification of by isis tourism is of little use in drug design the district court did not clearly err in finding that it was of little and so i think that on the six o you know down it really boils down to the fact that is true federal had been used previously and ubiquitously and virtually always in failure and there was no reason having to a particular situation where you claim a compound disclose utilities for that particular compound and then try to say claim the same compound again used for one of those closed utilities ok so why should that situation be the compound itself and then that compound used again for its previously disclosed utility in this situation we have claims two different compounds and the record here establishes watching them make a difference because because they are two different accounts the concept of those cases is that it's unfair to have a patent on a compound and to disclose another use and to claim that as a separate it's not subject to the terms and i don't understand why should that situation the different from the situation here where the intermediate is used to make from a truck set him permit trucks other different than the situation in geneva and sun in that and that line of cases where the same compound is claimed in both planes and so you have a concern that what we really have is two different planes in different forms of the same invention here we have one claim to an intermediate which is the evidence shows is useful to make thousands of finally people it and the separate claim is not for that intermediate again or using that intermediate but to a final countdown that is useful to treat cancer an the feely on one which is the evidence stablished can be made in numerous ways without using that intermediate and so the potential for difficulty that geneva and sun identified that what you have the claim to a compound you had to disclose utility to get back claims and you're just claiming the same thing again in different form doesn't apply to the situation well suppose we reject or say that it should doesn't make a difference here the disclosed utilities depended upon the double patting that it is the claims of the two patterns and inventions that they define that are relevant and not the inventors disclosure of his own invention that should be relevant and what was not a situation is a critical point that i think that the way where the party that hurt the party on thinking about this and i think the general foods opinion the judge rich wrote to this court is it's critical on this point if patenting you treat both of the claims in the specification of the earlier patent very different the question is what invention do the claims the final irrespective of what information they cases that were designed to address a particular narrow circumstance where the potential for undetected abuse was apparent because of the claims of the compound and then the claim to using the same how long would there be a potential for abuse makes more than the final and that's correct and i the point i intended to make earlier and perhaps not as eloquently as i should have is that double patenting doesn't ask the question well does your later invention relate in some way to your earlier invention and prevent some kind of practice of your earlier invention that really just poses the question the question for double patenting is is that justified and if the inventions are patented and distinct as they are here then it is justified and the fact that we disclose that the intermediate is useful to make them attracted outside of the gene even sun land cases which are very different fact that is not relevant to the double patenting analysis because we look inventions defined by the point if i could make one point on mr dealer's point about the geology and the curtain fisher line case i think mr enders over reading those cases those cases are about what you have to disclose about what the intermediate makes in order to claim the intermediary those cases say nothing about whether you can also get a claim to the final compound disclosed there was in the following blood a growth of the minutes that's correct absolutely correct and it is true to claim an intermediate you have to disclose the final compounds that the intermediate useful to make and what those do i can quibble with mr ting on or about whether the generic disclosure sufficient but at think i and that is is the final compound and obviously variant of the internees here it is not the geneva and sun in that line do not apply and the other there are ways to make the final point from here the undisputed evidence district court was that there are thousands of final and the full it's including hundreds within formula one of the seven seven five that could be made with this intermediate and the combination of those two facts i said that make this very different from sun and underscore that these are patently distinct inventions from one another above them big this is different but similar to geneva in the it rather than the second claim being a method claim big was simply in composition for claim were to a method of using the previously disclosed compound and the point that comes out of the act and out of geneva and out of the sun is that what you cannot do which we are not doing is claim a compound disclosed utility for it and then turn around and claim the same compound again for one of those disclosed utilities that's very different from this case question of the application of the bike under these circumstances i think this is a logical it isn't it is an unavoidable application of by plus fischer one warm if i may my on the other issue the six my my brother conceived of the fans of all of the prior artifacts and then he says virtually all of it ended in failure well if that were the case nobody would i'm working in the area but instead you had at the time of in december you had two different compounds in the clinic that still had fence and weren't just directed at p s so you know if any says there's no evidence that it would have been better that's not the standard the standard is a reasonable