court's errors in this case letter to conclusion that contradicted medical knowledge at the time of the inventions namely what that the r had been unable to achieve for upwards of thirty years was nonetheless obvious to the person of ordinary skill a treatment for and shaping the real world evidence of non obviousness that amran presented to fit its already found conclusion at age sixty nine it weighed found secondary edition against those that didn't find and relied on this in for mr approach to reject evidence of skepticism without supporting evidence in the record and then erroneous they rejected unexpected results based on a mistaken belief that the curve by ashley reference wasn't before  court's precedents like in re cyclic ben supreme and others require more to require the district court to give credence to those subjective and issues that are proven and to consider them in the obviousness analysis and not to treat them case approach and as a panel we're bound by those cases what's the problem if that basic approach is permissible in and respect to the prima facia approach other was something the district court did and while there is a stray sentence that suggests that it isn't the preclear that he's reaching the conclusion about the way the only basis given for finding putting aside the factual errors on skepticism and unexpected results the only factor the only reason given by the court to find the amerinds case on secondary edition as weak in relation to the prima facia case was that they were outweighed the ones that amran proved were outweighed by the ones the defendants succeeded in showing that i am or didn't prove according to court that's the only reason given by the court that that's not what the case law allows in terms of with respect to the prima facia approach of using secondary edition secondary dish are used to see whether out  the object of addition i point you to our argument about skepticism for example that consideration of skepticism by the court it's a clear example where the courts prima facia view that maury taught or was enough to teach the use of this compound in severe hyper try closer to me meant that the experts who expressed skepticism couldn't possibly have been aware of more because it was inconsistent with more that's allowing the prima facia case the conclusion to bleed into the consideration of the secondary addition and showing that a long felt need to district court clearly and considering the long felt need discounted it because the condition and that there's no surprise that that's not how it supposed to work the opposite right i just talked about the long felt need but again the skepticism skepticism is often called powerful evidence of not obviousness and this is on the direct point this is on the precise point of obviousness from defense that persons of skill would have a reasonable expectation that l v l c would not go up with e p a ever and hired a panel of experts to consider its clinical trials in two thousand and eight those experts one of the main comments they gave was that the l d l c is likely to go up as it does with all these there and then the district court rejected that of saying well that's inconsistent with  teaches according to the district court as found in the prima facia case and the bleeding over that finding into the consideration of skepticism is improper and shows an proves to the extent you have any question about rhetoric or semantics of the district court's opinion it shows how do i know i don't understand exactly what you're saying to me at page sixty nine the district court the found weak evidence of secondary mentioned evidence which is relevant to secondary consideration in connection with the prima facia case and perhaps vice versa i don't understand what's the matter with that i mean there and the finding of secondary addition in consideration of skepticism the reason for rejecting the skepticism at age sixty eight was that the experts view that l d l c is likely to go up as it does with virtually all these therapies was it doesn't appear to account for mori because the district court has found that mori taught according to the district court that it wouldn't go up and the so this report found that th eyes that's not what i'm saying i'm saying it's an error it's not an error to consider whether the at experts were aware more eight it's an error to find that they weren't when they were that that's a clear air but it's an error to use the conclusion undercutting the skepticism if you will say well the experts expressed skepticism as to whether all the l c would go up i find that the prior art morey teaches that it won't so therefore the experts do doesn't account that's what the district court that and that shows the bleeding over and in and out and the other ways i described of that finding that the fact that the district court found obviousness st and then went to analyze the secondary  thank you your honor may it please the court charles kline for the defendants amerinds appeal is challenging a ruling that the district court never even made according to emory and the court reached an ultimate conclusion of obviousness ultimate conclusion of obviousness before addressing secondary considerations but that is not what happened we heard some of that in the colloquy already but that's just not what happened the court found prim obviousness was very careful to make it clear that the court was finding only prime aphasia obviousness cited the relevant standards then addressed secondary considerations and then and only then reached the ultimate obviousness conclusion and as i believe it was judged i quoted the conclusion i just want to quote it again because i think it is entirely consistent with novo nordisk and the and the many other cases that have discussed this type of issue before the conclusion is quote for the reasons discussed above in view of all d four grand factors including alleged secondary considerations defendants have proven by clear and convincing evidence that all asserted claims are invalid as obvious under thirty five u s c section one hundred and three that was the ultimate conclusion on the penultimate page of the decision page sixty nine and  lead argument in this case and defeats its hindsight this case there are no legal issues there are no legitimate legal issues to address in this case it is this is a clear error appeal based on a classic battle of the experts seven days of trial seventy pages of extensive analysis and fact finding in that decision and all the fact findings are supported by the record and entitle to considerable deference this court should have far and just we did we didn't get too much into the the underlying facts in what was taught in the prior art but i just want to highlight a few few facts that really are under spewed it and certainly support the trial court's findings in this case one the prior art actually used pure e p a to reduce triglycerides in patients who had levels above five hundred it was actually done the the prior art used the claimed dose four grams per day to reduce triglycerides and most importantly the try the prior art uniformly without exception when discussing the effect of pure e p a on l d l said it doesn't increase l d l or doesn't statistically significantly in increase l d l every time entire argument for clear error is based on and analogous teaching away type theory there is no actual teaching away there's no teaching away theory with regard to prior art with regard to purify t p a instead am or in is advancing and in a teaching way by analogy theory saying that skilled arsons would have looked by analogy to other compounds such as get above five hundred and the high achi reference specifically tested l d l up to four hundred dollars it the study included at least one patient over five hundred dollars and the broad conclusion of that reference was does not increase l d l so there was ample support for all of the court's findings with regard to the skepticism point the counsel raised the court on page sixty nine of the pen excited the pharma stem therapeutics case which held that it discounted testimony expressing surprise where there was no indication that either the declarant or members of his research group were previously aware of the prior art references that laid the groundwork for the inventors experiments putting aside the fact that the evidence of skepticism here is incredibly weak we're talking about the notes of one of the inventors that purportedly is characterizing a statement by one of the experts retained by emory put even putting that aside there's there's emer now to burn a production and there's no evidence that the person who made this statement was aware of maurice teachings in its brief amarin points of the fact that morrie was cited in the materials given to the experts but did the expert read the materials did the the materials don't necessarily discuss the teachings of maury did did that the person who purportedly said say this actually read more eat it was the person aware of the high asha teaching the skepticism point is not persuasive and certainly doesn't constitute clear ever respond to the point about the other the other drugs the other drugs were clearly in the record compared with the fatty acids these drugs were considered together  time of the invention looked at those other drugs and didn't make the extrapolation that the district court made and that is on the factual side the error that we pointed to with respect to the final point on the secondary and disha with respect the ultimate conclusion that defendants say that we didn't grapple with the district or talks about and it's also an inclusion for the reasons discussed above those of the district court is referencing of course the prior portions of the opinion in that and the errors made as we pointed out with respect to the secondary dish the serious errors finally with respect to one last point with respect to the weighing of the secondary and disha against each other there is i would urge the courts of to look at that paragraph on page sixty nine there is no other basis in the record given for finding that amerinds case a secondary issue were we other than as district court said however the secondary considerations are outweighed the ones amerind proved by the fact that the court found plain just other prosper secondary considerations favor defense thus at best