alternative route because it would be asking you it would be taking up something of the board literally never did just to get the facts out of the table and this case the board validated all of the claims i challenge the petition it did not institute on two grounds there were of the earth if you look at the of the question presented to the supreme court if you look at page one of the split opinion and i believe that for us a little bit you'll see that the court is focusing primarily on section three eighteen which is about the requirement that a final written decision address every claim jealously just that is not here so i thought we understand that the patent office has now adopted a procedure whereby it will not do partial institution anymore but we don't they've got to be court's reasoning for doing this but my understanding is that the board is is now going to institute not only on all claims but all grounds but did you know that i thought the supreme court was reasonably clear the both grounds and claims were in conflict within the statements on page one where the court describes the question before it as all of the claims or only song i think you would look at page four which is that the plain text of section three eighteen and supplies ready answers so those are the places that at and of course the controls the subsequent conduct of the i p r but because none of this i think has anything to do with how this courtship dispose of this ip or appeal you know candidly we don't have a position of the client in this case so you're i see how the court's reasoning could be read that way they say for instance that page five of the sort of and that in and in are part is really the petitioner is a master of its complaint and normally entitled to judgment on all the claims it raises not just the decision or right to appeal i think because with respect to claims with respect to claims your honor partial institution claims i mean there certainly could be an argument that you should maintain a conditional cross appeal but of course that wasn't an issue in this case couple of generations questions in and bring out things that are which the agency for example specifically declined to rise to credit the other side's position and it's just not permissible to try and back fill the holes of the agency's reasoning in this case we think the holes are re ally quite substantial and i want to focus on three key deficiencies and one has to do with the recently success with respect to three times i have the other two have to do with the poor treating the uncertain operation of the drug as a reason to use it in its ruling on the motion to strike just isn't consistent with how the board actually used in this decision and let me explain why it was so firstly you're right that is in the string cited page eighteen the board actually describes it as prior art and i think which you know you can call that a stray citation but i think you should also look at why what the what the board emphasizes on page fifteen and twenty one of the board underscores the fact that contrie thousand and nine is twice weekly that's the only thing that it cites not i would say in the art of course it's not if you are for the proposition that you can go to something less frequent than every other day now my friends this morning and my friends and their briefs and the board eight times its decision is this some variant of less than daily or less frequent the conclusions about what it taught there's a whole paragraph about that and get it to the do you agree that the board could legitimately consider the const the initiation of the constant is indicative of what a person of ordinary skill might regard as worthy of investigation i don't twice i know for juries and i think that in a different case than that that it might be permissible to look at a publication indicating that there was people and it's extremely broad to say that any time that anybody begins an investigational study even a small study like that that they must automatically have a reasonable expectation of success and that every anyone in the market share that expectation of evidence just as evidence of the state of the art and so forth we've withheld a number of occasions of various types of evidence are admissible including experts testimony we're not disputing that what we are what we are putting out and what you know what you've never held what the court has never held is that you could look at something that is not of the court you can look at an expert testimony that doesn't go to the art to establish reasonable expectations of success so the scope of the prior art is what informs whether a skilled artisan at the priority date would have gap in the prior art that is not what about it doesn't seem to be what they're saying like on appendix page fifteen they seem to be talking about the board is talking about kind of not saying that it's relying on kind because you're a reasonable expectation of s within that spectrum doses now i think it's important to note that even the other side's expert would not defend that proposition as far as it goes because if that is what matters is the total weekly dose a concept that does not appear in the prior art for this drug anywhere one eighty their expert declined to say that there was or would be a reasonable expectation of success and why not because of the gap because the gap between the injections of the seventy two hour gap between injections is exactly what's missing from the prior art and one of the board if you miss a dose you forget to take a dose of your twenty milligram product daily i don't take a second dose don't know don't take forty milligrams skip it and they can go on to the next stated your next regularly scheduled dose that a primary argument i think it's fair to call it a priority because regardless of how many times that case is cited that you know there's a i think nine page range in our papers which we addressed this principle and its application to describe why  drug was not well understood as mechanism of action was on their own and why you couldn't simply extrapolate well if twenty daily is ok the forty every other day must be ok of much less forty three times a week i that this is not the kind of drug for which you would do that kind of kind of back of the two excellent examples of things that the board absolutely did not grant it right foot no twelve to distinguish that you understand they decided not to rely on the monkeys but what what is it that they where did they say that they weren't relying on the early  board did not in any of their opinions refer to what you have to do which is the finding that the forty milligram dose does have an advantage which is an earlier onset of action and if you look at appendix page twelve that's the court's decision in the onset of action would translate not just to forty per day but to forty per every other day or even a less frequent administration i don't think that there is i don't think that there  that point aside from was there any evidence to support that proposition i think i think there would be some evidence which is that the forty milligram dose does have this effect and it does but but and the question and this came up in the first argument  the question would be whether simply giving the forty milligrams every other day is the equivalent of twenty milligrams for purposes of the early onset of action for purposes of the early on why isn't that at least as plausible a proposition as that the forty milligrams every other day has the same effect for early onset as forty milligrams every day i think there is a question about that but that was a factual finding that the board made but i think that the broader milligram daily dose and then you have the studies in the prior art that show the twenty milligram they are every other day dosing are equally effective as twenty milligram daily doses and one of the findings that the board makes sclerosis and that's a key issue because pinch ozzy as you have noted is very close prior our disclosures and claims forty milligrams every other day dosing that's a difference of a single dose once every two weeks so it's very close prior art and what the board found was yes there's no human clinical trial or forty milligrams every other day it was administered to patients but what you do have is the finding from forty to forty milligrams and twenty milligrams are at least equally effective and you have multiple studies and the prior art showing that twenty milligrams every other day and twenty milligrams daily are equally at least equally effective the better tolerated in fact is evidence that would lead a skilled forty milligram every other day dose or it would be occasions and then the question becomes well what's what do you do next what is the skilled artisan interested in next and for that forty milligram every other day dosing regimen it's a very small step to the claimed regimen here of forty milligrams three times a week and but it's a small step but this isn't as a small step into the doc it's not a small step into the dark and let me let me address that in two ways one i i think what you may be raising is the notion of the seventy two hour gap yes of course to us and so let's let's put that in perspective in a in a in the claim dosing regimen two thirds of the doses are separated by forty eight  hours and then you have a single seventy two hour gap so those two thirds of those of us in the claimed regimen separated by a forty eight hour gap there is abundant evidence in the prior that that does not sacrifice efficacy but is there anything in the in the prior art and the evidence in the case that tells us anything about a seventy two hour gap except for the markets i think there is which is first of all you had the testimony from dr have to have forgiveness because you know patients are going to miss to us as they're not going to comply with the regimen and that was particularly true for lithium or acetate because they regimen was daily full injections and a lifelong disease like  so we know patients are not compliant and in those situations you have to have a forgiving drug there was evidence that patients were instructed prior art instructions to patients if you skip a better if you forget to take a dose don't try to double up t day presumably presumably although i think there's evidence that certainly patients are not one hundred percent compliant with this even with missing just a single dose but the other evidence just for us in that i think is important again that was a bad actual finding below that the or credit in the support of substantial evidence is this unknown range of doses in the prior art and so you had a range the loop went from on the low end seventy milligrams per week that is the twenty milligram every other day to regiment average or seventy milligrams for we all the way up to two hundred eighty milligrams per week and that would be the forty milligram daily dose for the study and for today and in between those ability of the alternate day treatment but that seems to me at least potentially does not square with the evidence inflect are stable five if you looked at those numbers i disputed prior art that was a rigorous head to head clinical trial operator blinded randomized between twenty milligrams every other day and twenty milligrams daily in the finding in that study was that the patients in the every other day group once the district judges mistake in assuming something that wasn't true about p p p meant that the obvious analysis was faulty there are a huge number of differences in this case as compared to cycle bands so those were the three those are three totally independent bases will constitute as a neither is it your position that because it's at the end of a long discussion in which there's many other reasons provided that it's our harmless error if anything week regimen and never said that it wouldn't and here's an important i don't want to lose this this piece is very much like this court's decision in genzyme in genzyme there was an argument that a reference had been brought not use the if this reply declaration to fill the void in the prior art and that's exactly the case here that this information about the scope of the study was not i take it public until the study was published is that true  court's decision in syntax and that is a case in which there was a post priority date publication it was published five days after the priority in the position had been that particular drug had not be used in pharmaceuticals or with another use in pharmaceuticals before the priority there was a post priority date publication as i say five days later it said that the use of that pharmaceutical composition was well  there's a big difference really my point is there's a big difference between those instructions that say when you're taking twenty milligrams every day you made some talks if you forget to give it a go that's quite different from saying skip two days every single week that well also skipping a day every time you take an injection because you're now going to forty milligrams with it with a gap in between to say that that is taught by the skilled windows occasionally instructions i thing that the lord has before it is not properly before it but before it i've had anything to say about glass that every other day three times a week that was in the dark there's nothing in the fire