the board here committed to errors construed the patent eroni asleep and even if your owners were to find that its construction work for wrecked its obviousness analysis was deficient i'll start off with the clean construction there are the patent issues here concerns the use of an itty cancer therapy a vast well let me just go into the clinton structure here i'm having a hard time i mean i guess i understand maybe it's a little confusing about what the boy said because i think what the board avoids construction that are adopted if you put house there is construction your construction and the board's construction the board construction seems really right and very close it diverge just from your construction only because it uses more precise language offered by your expert to keep your cat experts at a targeted investigation directed specifically so they substituted your experts language with the language you had in your construction and i don't see any difference between to determine whether a geography ration exists to confirming the presence or absence of a g perforation so i understand the board said we're rejecting both constructions but i'm not seeing a lot of daylight for argument that there's some problem with the board's construction all right so tell me when i'm wrong missing something here i think we're all missing something here your honor is because the board was explicit he rejecting genentech proposed constructed but ok that's true but what do you say that what the points that i just  language in your documents that refer to are targeted investigation directly directed specifically so while the board may have rejected the precise bottom line construction wofford it seems to me what they came up with was entirely has a g i perforation requires diagnostic steps that's what the targeting investigation is when it comes to a g i perforation because simply doing a physical exam which which consists of touching no i think that just comes from the ordinary meaning of what it means to assess for this condition this patent concerns the recognition as we progressed through the clinical development of this drug that there is a potentially dangerous but very rare side effect and that in order to use this drug safely it is prudent to assess patients for this very rare condition that people don't ordinarily assess patients for so that's the nature of the invention that arises from the phase three clinical trial here how radiologists and oncologists cooperate to do this the cessna is known in the article didn't need to be explained  because we were inventing new diagnostic means and we were using them in connection with the use of this drug so when the board says it's rejecting our construction i think we have to understand that the board thinks it thin when it comes to explaining what its construction means and what what what difference does it make is only is whatever that investigation is is directed specifically toward confirming the presence or absence of g or correction when i think this leads into the obviousness area or so if we proceed to appendix twenty one dollars page of obviousness analysis with which the board took down this path the thing that jumps out construction that it has adopted is nowhere applied if instead it says we think the invention is obvious because we credit dr new gets testimony which is petitioners expert that the standard of care knowledge of the person who are not risk will would have guided a physician to assess patients and that this would begin with evaluating symptoms like nazia or abdominal pain and we've already seen that the patent scope doesn't can compass just assessing for symptoms it actually requires an investigation regarding g i perforation and the all the other thing about this page besides not including the board's claim construction is that it cites none of our the patent owners expert evidence here and we laid out at length in our papers and in our appeal brief how all of these points are disputed in controverted how dr new get himself admitted that just because a cancer patient presents with nausea if you don't send them off for c t scanning to see if they have a g i perforation most cancer patients are not nice most cancer patients have discomfort in the abdomen that's where they have colorectal cancer it's something else entirely to then take the next step of doing an investigation for g i perforation this sentence that follows where the board says we are persuaded that an assessment necessarily begins with evaluating patients for symptoms and in the event of a showing of such signs that the physician would  assessed the patient for g i perforation again the construction isn't here it's unclear whether they're suggesting that the person of ordinary skill would have sent this patient off for imaging but what's unclear about t board's statement here is are they hypothesized in a patient who is presented with only knowledge or or only abdominal pain in which case i think the record evidence that they don't cite shows in fact doctors do means it says assessing the patient doesn't deal with it doesn't outline is something in the patent describes what symptoms you have to show that leads you to take the test i guess i understand what you're saying i'm just not that kind of clear on why that's relevant to goes on page twenty two dollars said after the sentence you just read this is guiding that i think that physician would have been the knowledge that g i cancers and systemic chemotherapy each were known to in support and they didn't say why they disagree with what we said and that's opinion writing we don't require them to go into that level of detail and what reasoning supports it and i respectfully disagree ron i think your cuts st decision google decision has set a threshold that your honour's most rational is the a p a and it may be applied differently in different cases but the of foundation the agency has to explain its conclusion and explain the reasoning so it doesn't have to specifically address each and every argument raised by the person its base rejecting and new standard of care for the treatment of cancer our drug does seem to have this problem in the national cancer institute reaction was to immediately disseminate a letter to all of the oncol talk about this evidence i think the reason that the board may have said that nonetheless having done with the evidence you're talking about is because you're only citation is under a heading it doesn't say anything about secondary talking about all this evidence and at the very end you have one paragraph the only one i could find page two hundred dollars that talks about objective in dishes at all and that paragraph is a few so i think the board treated this evidence in another context which is essentially the way you treat it so that's my that's my understanding of why i think or i would have said that maybe it starts today in this case which is why do you think i mean i don't know how i could have been more is this is right so that this paragraph on two hundred is the only place where you mention and this whole thing you actually cite to calling this objective in dish well we we get a single brief before the patent office our patent on a response and this is at appendix two hundred you're correct that's the pin site where we say the effect of the inventors discovery on the trial serves as objective of the non obviousness of the claims methods that we cite multiple cases and we discuss this evidence i suppose next time i could use that section heading but i think we've certainly presented this argument and i know i talked about it at length at the hearing as well and i think this statement by the board that the they didn't they apparently didn't understand that this is objective in the issue of non obviousness and they rejected it and they really need to take this into account and well i mean it's not my point is that i'm not sure they didn't take the evidence into account and they had knowledge about secondary considerations is exactly the case in the sense that there was no cognizable secondary consideration to that were put forward there was one paragraph i think the court pointed to it at a two hundred in the p a response but there was absolutely no allegation that there was a nexus between these posted unexpected results and the novel feature of the claim which is the assessing limitation of the claim and in fact the evidence that was cited there was this and c i cancer letter and that letter was in fact referenced by the panel after final hearings i was asked a question about it had finally hearing some of the board was was well aware of that and interesting they both in that letter at eighty two thousand and thirty nine there were no changes made to the assessments to be done to the patients there was no change in the care to the patients there were no changes made to the treatment of the patients or enrollment of the patients there was simply an identification that this had been seen was an observation of an inherent property of the drug and in fact an obvious property of the drug for which no change was made and therefore this is not knowledgeable evidence of an unexpected result of practicing the claimed invention which includes the assessing limitation and in fact there's no evidence that assessing was ever done any differently before after the observation was made so there and paragraph in their papers which the panel was well aware of and cannot give rise to secondary considerations that would in any way overcome the obvious in terms of the evidence on obviousness the courts of the panel cited not only doctor knew that but for example when it determined that g i cancers and systemic chemotherapy were each known point the kennedy and spence reference at appendix five hundred and twenty nine cited both chemotherapy and tumors as being associated with g i perforation combining that with the seriousness to the information about tumors and chemotherapy being associated with g i perforation would have understood that the anti veggie antibody could also be playing a dangerous for all i think i have cut into the government's know there is a fence and there is a pending district court litigation but the bitter court case has not been stated it's ongoing i think there are other district court cases not involving our company so were the argument they're making which is that retroactive up the creation is unconstitutional for say because more and dealt with this specific administrative scheme that displaced the court of federal claims jurisdiction and i think it specifically noted something to that if i put a horn also is just saying look when we're finding you we're not going to make you pay the fine which is in lieu of the property raisins and then go to the court of federal claims to get it that doesn't make sense but it's takings claim here the p t o didn't find them or do anything that made them pay over money i mean because i don't think they're talking about the examination these they just want to sound he declared the government actually imposed a fine which is a proxy for the taking of the reasons and also had a specific administrative scheme there that every other takings claim when somebody the government takes your property they're allowed to do it they just have to pay compensation right well i agree with your honor in the sense that this is not the average takings claim i mean to think through your funders question maybe another way as are you aware of any case where i don't think morning is the case where the question the reason why we think there's no taking a class claim here obviously is because one there is no valid property interest after this court has agreed with the board and that's only when the patent cancelled but also and to think through your honor's question even to the extent that you are saying ok now someone has to pay just remit the court was critical in multiple places it said the board did not acknowledge any of google's evidence let alone explain why it considered such evidence  convincing another spot the board emphasis of the federal circuit compass ised that stating a disagreement with google however does not amount to a satisfactory explanation the findings here we heard from haas we're about all these be submitted it was directly to that battle of the experts when the cancer national cancer institute said this is unexpected with the board found with the board explained is oh it would have been obvious to check for this because of these known associations that's not what the national cancer institute thought the national cancer institute thought this was fun expected and so perhaps henri man will lose again but what we're entitle to under the a p a is an explanation for why