or versus phar lap's that thank you good morning your honor this case turns on a claim construction and specifically the meaning of the one variable are for used twice the district court got it right in holding that the plain meaning the courts identical are four groups the court erred however in further holding that you can tell me i'm off base here this does not strike me as the kind of case in which we have a generic term in this case let's say they are one and  specific elements under that generic term we have thus the very idea that is in the shoes that the matter proposed which is called out specifically as being one of the components described by the are four square radical so it seems to me at that this is more like a case it describes two pair of women's hose let's say and three pair of men's socks one of which would be the very type of sock that is an issue in th can there is nowhere that dependent claim ten or any of the other dependent claims or the independent claims or the specifications links the map of christ to our fore and in particular the patent at a forty five where it defines what are for is at the top of a forty six it's tells you what the preferred representatives are and then in the next paragraph it says other compound it right and it boils down to the fact that they defined are four in the independent claim to be are four is and that definition of are four is selected from the group consisting of as you know as a group means it can only be one thing and then it says we're going to use that one thing twice and it goes down to dependent claim ten where it calls out the math process as one of the compounds that you can select in the art would believe our four to be the same and there was testimony from our audience witness that said that the most he could give it was ambiguous and that's certainly not a clear definition of what our four is how do you get him saying bad when he doesn't we are honored dr mcdonald does say that at twenty eighty four of the record that  we have to look at the testimony and you have to look at what's at issue here for obviousness and when you look at the claim at issue when you look at basically what it boils down to there are only really three facts at issue and i realize you can't wait to facts of what dr macdonald said but the three facts that are issues for obviousness are not disputed and those are followed the method of treaty is set forth explicitly in the pharmacy a patent that's at thirty three forty two and we compare it with the claim at liberty sixty five the pharmacy a specifically told the world that compound two w the most the compound you wanted to use it told that in arvada and allergy and reflected that in its memo back at eighty three three fifty eight so the only change that you have to make from compound thatchers am i right together at twenty six thirty this is the tape yes right and there's no elaboration on the references just a simple the more complex and therefore more readily in the metabolize of all forms and then it strikes me in addition that if anything the li and fung guard suggests the contra sixty six hypertensive a fact it's very very close and pharmacy s s o in its turn can't patent it says at eight thirty three fifty seven it is most reasonable to assume that other know them well we didn't appeal the judge's ruling because it was a credibility ruling it's unfortunate because these issues were not the main issues on obviousness and again when you look at the that's what dr garst interpreted it as but i believe that you can look at it as having the same effect as  of housekeeping question but just to make sure the chemistry is difficult enough but i just want to make sure that i'm not misread something in the judge's opinion so i'm looking for help from either or both of you on this there's two things that left me a little confused when i read them and these they're on pages twenty six and twenty seven on the appendix at the bottom very last two lines of page twenty six in by the claims right construing it that way as well as the specification and there really isn't any substantive or substantial intrinsic evidence going against the claim construction which i dropped since up which is what she noted in her think i think that isn't really the lexicographers i mean in fairness to to judge roberts i think what she was trying to get at was the intrinsic evidence was different than the plain meaning that was proffered by the expert and therefore she lexicography but clearly the claims are what she's getting at the key point as you say judge rare but she focused on the claims and claim tending dependent and you know that's really to me you know there isn't any substantial intrinsic evans going against that i'm and that's the course questions about that i'll address the the obviousness issues raised i will simply point out additionally which is not pointed out of this is not a laundry list of compounds in the specification if that's a invention i think that's very clear that sort of drums are focused on that and that and claims as to as to obvious this it was said there were three things and they weren't disputed not surprisingly i don't agree from the compounds wasn't enough to be different from statistical significance that one couldn't necessarily tell from the data in stern chance that it lowered i o p but even more important that is the third point that the prior art is somehow r is different enough some statistical significance to show an affective i o p lower but has it been proven that the matter prose free acid as it were or is or some other reference that they're relying on no they're relying on stern p but you know more important than that and that that really goes to dr richards credibility the fact that he would take one division in one location another and another was the prior art is replete i think i've heard counsel say with information about referenced i think the reason it wasn't relied on is because it's if it effectively teaches away from using am ads and doesn't specifically mention a single sort of curious is that dr mitra did testify table right and so and that isn't that at least i'm not too direct a person of ordinary skill in the art to to try that there's two two basic reasons one that we have to get t whether or not you're in for making a pro drug which is a heavily disputed issue was a matter posed approach or not but secondarily even if you are interested in making a pro drug the whole ballgame is a great an extent of hydrolysis that's the issue and pro drug because the whole idea is to have something that course so why isn't she wrong in saying that this was just a one reference obviously first off i think you have to look at her opinion closely so it's great because she did consider those other references if you look at recited additional prior art in support of his opinion one such reference was j p five three six and the court and does not read can teach additional references here it is sufficient to state that none of the additional references were certain right and then she goes on and says in primary references right if they were used if they were used at all they were used in combination with certain chance but she does go on to say judge that that he asserted it is obvious in view of stern chance to be though j p six three six and hope so she actually does go through his some may sion at the end of the four references that he relied on and as to her digging through the records to try to get at other combinations that were not specifically referenced by d and she says she agrees right she saying regardless of what else he may have relied on his testimony that wasn't a theory and therefore it's way and that the way you read that i agree with you as to those two points  be fair about something the four that we just mentioned relate to the eight one nine at this j p six three six that she's referring to here that relates to the six four nine and which is not at issue here there were  waiver arguments if you were to waver arguments a valid excuse me that j p six three six six four nine had been away and six or nine ten is not at issue so this sentence here this is a construct that out and then the s specific stern chance combination with cleon bunkered had never been made by got to meet her but the four references we went through on page whatever it was a thirty four she did talk about in relation to the fact that stern chance the main reference the opinion was so incredible right relax credibility that combining them to do something with stern chance was unsupported and the court's authority has been complex technology like this the court can require expert opinion to put together references and not insignificantly she found the expert testimony offered by alex and probable that and she said she did not need to detail even the pro validity position but that she found allergens experts credible who of course testified that those combinations did not render the patent invalid so she considered the four main references he relied on she said i don't have to as i understand it under the federal service authority try to put this all together myself without expert testimony in a complex case like this and she found allergens experts credible who testified at the patents were not invalid when you look at the balance of her testimony i think that's an adequate there's no clearer shown in in the in the defendant's brief with those findings and that's that's really at issue that's really if you will a summary of what judge  post and so you know i've i've taken less my time but i don't have anything further to add unless the court with him has any specific questions thank you the issues remaining for obviousness are pretty basic it's a known exchange at a c one position and there are two options but point number two there was expert testimony and eyes and saw they had a reducing effect done in iraq in a pressure it was well how did he say it was the scientific surprise of his life and his career something isn't that pretty persuasive that you wouldn't head yeah my direction but they did head in the end my direction and they did do what but it was a surprise it was unexpected isn't that to some fifty one seventy five by that's part of their profit landon program it went to the prostate gland in teens and they're saying here hey let's let's look at  evidence of obviousness but it was a surprise but there's plenty of art out there that says it wasn't a surprise there and i want to address what what my colleague said about what was presented at trial we did present in the joint pretrial briefing we presented to the court that allergy and to out again that we were addressing this very thing and that's it eighty nine eighty paragraph thirty in addition there's multiple prior art that talks about the serious things and that in our blue brief the am i prior art table facing page fifty four that shows the facts that support this theory and your honor even if you give them that they were surprised that allergan was surprised there's no testimony that one of skill in the art surprise this is dr garth testimony he's an inventor so you can discredit it and in addition to that in addition to that these are secondary consideration and when the primary crime of pasha case is so strong as it is here they can overcome this case but i wanted to also address some of the claim construction issues you noted this construction is not the construction of the man across it's the construction of our four and the claim five tells you that our board is our four is selected from the group and there's nowhere that it tells you now are four is something else in addition goodluck if you would to my hypothetical is the stockings which from the least you'd think about would you say in that setting that if a claim starting from among the following  and the fifth is sox with reinforced here it could be your honor that case is different from what we have here here we have a known claiming strategy marcucci groups where it's understood that you clarity maybe even the most play with respect to how you characterize the overarching category it's still perfectly clear that you claimed the underlying idea right i disagree was public notice function of claims requires that you maintain the strict rubric that's what claims are for right lanes or the explicit things that tell you what's covered plus you have a patent lawyer seems to me your advise and counsel thank you yes and here we have more proof that our four is a single element and it can't be two different things for example in the stack it near earth plane five definition of our four are for it is it does the same thing in the stack at the bottom of page forty six are for it is and so if you say that the ordinary plain meaning of our that it can be different things under philips you have to look at how it's used and how it's actually used in the specs is to be the same thing the fact that it may be listed later the matter crosses listed later doesn't change how the applicant defined are for yes your honor in conclusion claim construction is clear and it's based on this definition of are for is and claim five foot set definition and this case should be reversed thank