which is also legal there turning to the f d a communications prior to the patents filing date lilly communicated in a series of letters to the it in for the most part yes your honor we believe that when we want to when decision is a question of law that it is appropriate for this court to or states that there are questions there may be underlying questions in law in the want to one decision but it explicitly states that not all one on one decision that's true but doesn't have to be addressed below should we look if the even though one on one was not raised before the p c l below that it could still be raised as a threshold issue before the support is similar to the i won the case in which this court looked at indefiniteness for the first time even though that could ha but when that it is not at all possible for it to be a potential legal ground for the agency to rely on how is it consistent with general for us to look at it welcome ischia explains that generally does  board from deciding what went on they don't think that after sas was decided by the supreme court the board is now free to renegade petitions to go off petition in fact go off statutes and decide on whatever basis that want the board cannot go out statutes  questions and there's a million times more questions of law whether something is a printed publication is a question of law but there are a lot of them and many of them cannot be raised in i p r is that you're telling me all of those are fair game on appeal at the federal circuit despite the fact that congress has said the i mean what you're asking us to do is you know a short supporter of what generally requires and what other courts do in administrative law cases from other agencies there's no way that other are not i think if we we agreed with you we would get you know i know reversal from the supreme court in a matter of months i understand your honor but we also are not standing on the one on one issue exclusively we have we believe a very strong has not been before this court before does teach administrating b twelve in addition to solid acid to achieve a synergistic effect in lowering homocysteine for cardiovascular disease indicated for cancer treatment so it's a question of fact maybe you're right about with e p o says it seems to in general that but there's direct evidence that tumors will grow bigger with b twelve you want that it was known that cancer patients being treated are more likely to be twelve deficiencies and therefore person would be motivated to include but in that i repeat two so how can we disrupt that credibility finding at this level we're not asking this court to disrupt any credibility findings we're asking this court to address the errors of law that that piece have made in the case that they actually  incorrect legal standard in coming to their factual findings for instance lily the people have refused to look at lily's admissions at all is that they refused to read the prior art references in light of lily's communications to the right in disregarding those statements because the statements of how what was known is being made by the company that figured out the solution to this problem they came up with this invention that company is making statements that if you what it knows right then and there based which include the knowledge that these inventors developed by virtue of their invention so i guess for me while the p t o may not have been the most artful way explained why those statements are not going to carry any water in this case it's nonetheless entirely correct given the state of the art in the timing of the statements the statement that i just read for instance is that literature search has found no evidence for stimulation of two of us by this vitamin that is not a statement that is reflecting in any way the invention that lily had made that is simply a statement of the knowledge that a poster would have at the time and that is not the p t o cannot legally know it's not a statement it's a statement of what literature search uncovered for them they performed a literature search and it didn't uncover something it's not actually a statement of what a post would understand but let's at least want to find a state where a post would understand please turn the page nine zero three one of your receive and then trek said the prior art specifically recognize that a cancer patient on an anti fully should not receive folate to lower homocysteine levels as that would be expected to interfere with the anti tumor effect of the so you have expert testimony in this record that cites particular references on page one zero three one one zero three two that was in front of the p t o which makes the argument or at least the factual assertion that you should not combine these two things when dealing with the anti tumor as opposed to cardiovascular for homocysteine levels because it would interfere with the anti tumor effects that you were seeking through the chemotherapy drugs that you are using think that is a substantial action evidence question a fact i can't see it any other way so i'm having trouble understanding that morphs into a question of law but the p t o actually rejected that factual finding that there are just mention sorry let me be clear i didn't read the first part of the sentence which says it would not pre treat a cancer patient receiving from metrics was felt like i said and b twelve so i'm sorry i didn't read completely the expert is there is evidence in the record that really presented but we do submit that the f d a had the piece have aired and that it did not make its factual findings with the full record in front of it because it omitted fortunes of documents at issue but i'd quote all the arguments petitioners make from the documents of the substance of what they say was before them and they say they're not prior art and we declined or read the early statements as if their partner but then they go on in the next paragraph and they say these were made by those have knowledge of the invention and obviousness requires having no knowledge of the invention and they say they justify their reasoning i agree that if i were to edit it i would flip the order of those paragraphs but i think read in context that is what they're saying and i think  tracts of patients with vitamin b twelve and what's interesting is the only reference in any ground that was before that people have or that's before you today that talks about the administration of vitamin b twelve is the e p over five reference which is not mentioned at all in any of the f d a submissions and so in some ways this is a bit of a tempest in a teapot but the board was correct in its view that these documents were not probative of the issue before it and there's no basis overturn that the other thing i will point out is that all of these references were before the board their experts testimony about these references were before them ward our expert testimony on the board was well position to make a factual determination on the merits which it did in terms of the substantive issue i don't want to belabor this because i think judge moore hit on the key point but the relevance of homocysteine to this case is that board expressly found is that homocysteine levels can be caused by multiple different things one of them is a full of acid deficiency one of them is an m m a deficiency there are multiple other things and if all you know is that there is elevated homocysteine you don't know it could be any of them but there is a more specific marker and a metal melodic acid and when that that is unique to be twelve deficiency when that marker is elevated the patient has to be twelve express finding there are experts reading was the correct reading on this was that there was no correlation between patients m m a levels and their talks to city and so what that would have told the person of ordinary skill is that whatever with causing the elevated homocysteine it was not if i didn't to be twelve deficiency and the board found and it's clearly supported by substantial evidence that there would not have been any motivation to give vitamin b twelve to lower homocysteine in that context and the e p o five reference is addressed to an entirely different context it's not about ameliorating the toxicities of a chemotherapy agent it's not about the treatment of cancer it doesn't say anything about what will happen to the efficacy of the cancer drug or the toxicity of patients will suffer it's addressed to a totally different problem and the board found of a factual matter that that person of ordinary skill would have looked to it and that's clearly supported by you says a review in court may consider any relevant issue of law that has to mean an issue of all relevant to the decision under review here the decision under review has nothing to do with one hundred one could have nothing to do with one zero one authors have any questions i will stop at that point ok thank you toxicity but that was actually one of the areas of law that the piece had committed in that it held that the appellant had to prove this quote unquote missing link in order to show motivation to combine but k s r in many says when cases make very clear that it is improper to hold the appellant's to the motivation of the inventor there can be many motivations in here the board actually found one of those motivations in its factual findings and disregarded it undesirable and the normalization of elevated levels constitutes a therapeutical in of itself of course there can be many motivations for lowering homocysteine but laura homocysteine in of itself is a motivation the appellant's are zero evidence that a tumor will grow because of adding b twelve and then come around when it's trying to save its patent and tell this court another thing that it just can't be the case that really can't be held accountable for its admissions to the f d a that  prior to the patents failing date and i know your honor talked about them being post invention but there is zero evidence in the record and the board made no finding that lilly had possession of its invention at any point prior to the filing date and so these pre have to matter in of the board by ignoring those statements kind of legal or did you argue below about what the critical to it was in this case we did not argue as so what the critical date was or not it's willis burden to prove that if they want to rely on something other than the priority date then lilly has the burden to prove that they are entitled to a date other than priority day and really did not make such an argument is your argument that this record does not reflect that the statements were made after the date of