columbia i have knowledge of her credentials in them satisfy that she possesses the necessary qualifications then they say that time flies when you're working hard i certainly believe that and  that is true then this past year must have been nothing but a blur for you because you certainly have been working hard and if you represent the the quality of the bar in your age group then i feel secure that the meaningful development of the law and the in ok we have four cases before the court today one cases on the briefs the other cases are set for argument this morning our first case of seventeen dash it please the court and i port was deprived of its due process and e p a guarantees in this case because the board invalidated claims sex based on an argument that appears nowhere in the petition specifically the theory in which the board found a link between austin and the secondary references great hope and freedom and that would give rise to reasonable expectation of success in using tab or all to onic lycos is caused by the amount of fight the petition attempted to do this by arguing that the compounds in austin and the compounds disclosed by the secondary references would be combined because those compounds had structural similarity with each other and they also had allegedly overlapping functional activity austin had in vitro data for c l the kinds break overhead in vitro data for c al the kinds in freeman had in vitro data for dramatic fights and so the original theory was that you would combine those references and you would assume the petition and then ultimately comparing it with the decision of the board it looked to me as if the theory was exactly the same there was not total reliance or structure structure was quite similar in what they say now it is true that there was additional evidence that was relied on by the board of the merton and segal references for example but that's different it seems to me from saying that they adopted thirty one which is the board's findings on whether there would be a reasonable expectation of success in combining austin and radio and then they carried over those findings to ground two but structural similarity was the basis for motivation to combine and reasonable expectation of success structural similarity had nothing to do with the ultimate outcome for that issue you say it was the basis for structural similarity was never the sole basis on which he was predicated or the petitioners proceeded as i read the record function was it seems to me as i read the record more important than structure and that and the board referred to the fact that both of the compounds in austin success did not turn at all and structural similarity the the board it pages thirty and thirty one of its decision cited the new evidence siegel the mer and burton and said because those because those references show that a that a given compound against c l the fans would be even more effective against dramatic fights therefore there is a reasonable expectation to success siegel murton innumerate don't even concern bor compound at that point the board has completely stopped looking at the structural similarity between the austin compounds and any other sets of composites in other words when we put it a different way in in the gives rise to an inference that tabib or all will also work against dramatic fights now in the way the petition or the way the final written decision played out you don't need to know anything about anything except that have a bore of page thirty one of the first or is an important clarification about appendix twenty nine the mercy of citation here is actually to his reply declaration the murder of the citation of murphy is not from the petition that's exhibit ten forty four i think it's appendix seventeen twenty six so in the intervenor places a lot of emphasis on this aspect of murphy but this was even part of the petition but more to the point the reasonable expectation of  success had the way that the way it was found it appendix thirty in thirty one that you don't even have to look at bracieux under the board's logic to find a reasonable expectation of success in twenty nine it's reciting the part the arguments made by well it's good for saving the parties are that's including the key argument in twenty nine which didn't come into the reply well let let on this business of the reply it does strike me that   declaration i believe she referred to two other martin references which were part of a three part article that was done by merck and lippold so that the notion that you were side you were somehow blind sided by these references you have not paternity to do it to discuss those references and why aren't they legitimate reply to the various arguments that you made in the course of  owners response and the declarations of your experts well first of all there's a clarification i'm not sure about dr lee but i think what your honor might be referring to is petitioners expert dr murphy testified he knew third one but yeah i was aware of what we're on or let me get to the broader point which is that this case is like the basis of which is a situation where there are new arguments based on references are already known about i think the basis of one of the key prior art references the petition argued that one claim element was in that reference i think this is an implant case and then they got another claim element from a different reference then i reply they switched to getting both of those claim elements from the same figure of the same reference but my case of makes clear that the prohibition against introducing a new theory or new evidence not apply when the new evidence is introduced as a legitimate reply response to an argument made by the patent why is this not a case of legitimate reply if for a couple reasons because first of all if you look at the patent on a response the both parties spent a great deal of time arguing about structural similarity we argued that you would not have combined austin with either of the other references because the more on containing compounds have no meaningful structural similarity in the reply there was a new argument like a new vase of with you no sign even granting your honour's point that a couple of the references came in before the reply based on a completely different theory structural similarity is essentially out the window when it comes to reasonable expectation of success in order to show reasonable expectation of success for treating dramatic flights all you need to know is that compounds activity against that came in with the reply which is shown pretty starkly in the reply i would show you are under seven fifty seven seven seventy one seventy two and seven seventy eight petitioner completely abandon the idea that structural similarity was the link between the references it just pointed the  and then merton is used to cross examine him about why it is that merton for example shows that a number of and i'm a context are more effective against  dramatic fights than see all the kids so that all seems like legitimate report out that the context of dr good news testimony was more attacking great hope because the issue that we didn't think it was particularly controversial that austin by itself gave rise to reasonable expectation of success and in any event under the statute three twelve a three it's in any case the petitioners burden the show of crime a fashion case of obviousness and the basis of their from a fashion case which includes reasonable expectations excess completely changed from petition to reply and regardless you know i think intervene or try to argue that we somehow open the door to this new argument with dr bill you but i don't think that's how the  or structure we don't know your honor and that's part of our appeal is that there is no substantial evidence to show the structural similarity link with any evidence presented on that particular issue beyond what i read  that that she only statement i found as to any type of simply structural similar that that's correct or are we agreed that petitioner never identified a meaningful structural similarity they started out by calling all these compounds or on based compounds and we asked their chemistry etc what does that mean to be more on base and he said well maybe i was a poor choice of words what i'm really that was boron containing but there's literally millions maybe millions and millions of compounds that have or on in them and the board in its ruling sort of pivoted partially and they said well we have we acknowledge and there are structural differences but there are some similarities and it didn't really articulate what similar to this specific structure you have a compound to share boron her cycles well i mean under petitioner's theory or their original theory that they have and we're still talking about millions of different types of compounds and long career yet yet they pick one compound out of austin's millions and say that would that would have been a preferred compound their original theory is you would plot that compound into a method of treating a human being like allegedly would come compounds now that we agree there is no substantial evidence to support any finding that there is structural similarity between any of these compounds other than that they have more on in them and that they have had  as a hetero cycle compound we don't know what the meaningful similarity is and i would point in particular to the merck case that intervener sites where there is a one atom difference giving rise to structural broad spectrum and that was their response about toxicity the worry about toxicity because have a borel in ostend teaching actually shows quite by having inhibitory effect and against five different genus of of our fungi that it would in fact be toxic and i think going back to the similar of the structural similarity to breathe hope which has the bore on containing compounds generally teachers that are again no more on compounds are known to be biased  really the heart of the case isn't it the functional as a person is strikes me reading this case that structure was a starting point but really no more than a strong point you never would have been able to sustain this case and all you had w  in the first compound which is terrible really ok and then we go down to a and there's just a very minor change in the structure streamline minor in fact eye would look at the structure of these two compounds and say they're very similar but there's been a change a very small one and look at the effective rate yes and it's much much less effective and you can you go on down the line here you're changing your the the different structure making changes then you see dramatic shifts in ineffectiveness of the of the drug that's correct and  there and i you know the structural differences do matter and when you have a compound to start with have a bar and you're going to change it i absolutely agree that you wouldn't be able to predict based on that structural change of known whether trump similarity of structure or dissimilar to structures well i think it doesn't this case and i think there's background information about the war on containing compounds having similar activities just based on that structure but once you look at that evidence that was tends to show you that once you know a compound is fungicide against east you have a reasonable expectation that would also be fine just title against a math science regardless of the structure but if you don't know anything about the compound activity like the different compounds in that chart we change the structure and you don't know anything about that compounds function i agree you can't predict what that function is what will that do or what we would look at the similarity or function or the happens where you have to compounds that are structurally very dissimilar and what does that do to the reasonable are we talking about a revival expectation of success here right we are so i'm i'm not to have it you have two compounds that basically are functioning alike so but here we don't i think that's true we know that they have a similar function in terms of acting against the other kinds but we didn't we don't have direct proof or all acting against a mad aside and that's why we need the evidence about whether we would have a reasonable expectation of what your argument as i understand it is that in the area at least a fungicides witch doctor called described a simple organisms you expect to have broad spectrum effectiveness and there's no evidence of that and the broad spectrum affective ness means that if you have a compound which is effective against the alba catch you can infer that it's likely to be effective against  dramatic fight so that's your argument and you know what i think and that's what the board essentially deciding the dispute between the parties said that is true would have a reasonable expectation of success once you knew that a compound had activity of c other kinds but you also this is expect these compounds to be toxic i don't read their brief as making that argument here i think it actually their argument about toxicity also was quite delighted in the same structural similarity their argument was  containing compounds are toxic without any regard for the rest of their story of the structure and so the evidence before the board was both parties were relying on this similar boron structure to determine function with t hitters and other things so the references in the art are say this is the relevant structural similarity that you need to look for if you're looking for and a fungicide or an act of therapeutic activity and i just like to point out so and  what concerns me here with the with the argument in cases involving pharmaceutical compounds i mean we would repeal either of health and we recognize that a prior art compound in a clean compound to it's not that it doesn't matter if you don't know you don't have a legal authority to back up what work is the closest and it's not i'm you know it's not a great necessarily or a great case because it is about compounds that are structurally similar but they did look at function i mean i think it's not practice sort of the closest but it's not chemical compound it's two different cell lines and they say i mean the cell lines the arguments were that they have different receptors they have different functions in all th they both had a relevant similar function the license in vitro of cancer cells the unplanned cell line also worked in vivo and the court found its again unpresidential that you would have had a reasonable or response but i think in context of what we were arguing it should have been clear that clean dramatic fight discussions are relevant to claim sex and in our opening brief we did argue there was an a p a violation with respect to both motion to strike and wheels the board allowed us to identify the new arguments but then as part of the final written decision and decided that they weren't new arguments but they were that this board decided they were legitimate reply  if i recall the footnote that's correct yeah so let me just do some context of the discussion you just have with intervenors council these claims aren't drawn the fungicides are drawn to methods of treating human beings and so tab or all and that takes us back to the point of how do you link austin and either of the other two references so we still don't really know what is so that the titian trying to do that with structural similarity and overlapping functional act we still don't know what the structural similarity yes and no four on can be enough to establish structural similarity and we know that from austin freeman themselves on the austin reference i think that really goes by itself that goes a long way to the feeling any notion that structural similarity here can give rise to any sort of reasonable expectation of arriving at claim sex i would also note freeman compound you're talking about so for these reasons then this was just a wrap up very briefly because of these problems in the structural similarity face petitioner abandon structural similarity and instead just said forget about forget about freeman just look at austin's data against the east and then based on all this other evidence that was in our petition just assume that a compound that works against the east will work even better against a gratified that's a new argument that should not have been