discussing different issues we'll let you have two replies but that's not a good practice but go ahead and stable thank you yes i do recognize that we are we are only addressing the obvious type double patenting argument again thank you thank you to the court for your time we served over forty thousand pages for this appeal but for today your honour's my argument relies upon only one sen that i'd like to read into the record and this is from a p g x thirty one dollars the main point of dispute between the parties concerns the motivation of the fang patent of opposed to modify only a scaffold the court focus the issue the main point of the dispute as the motivation of the post however what the court did not do is ever tell either any of the parties what the is one would think that if the fact finder is going to identify motivation of opposing as the main dispute then it was incumbent upon the fact finder to define the post the court did anything but that the court absolutely refused to do so and made that may not be a desirable way you approach it but certainly if the court says i'm not going to side the issue comes in because it comes out the same way under under either definition and where is the mistake your honor the testimony and mid that he cannot and does not meet that definition so if you're going to on the one hand say all right i am going to assume that we will use torrents definition which requires at least some years of expert is in a completely different field he spent forty seven years studying how the senate jance l s d anti psychotics he does know he has no experience in this area your honor and this is not we're not talking about fish oil here we're not talking about headaches we're talking about a specific type of inhibitor called the d p p four inhibitor did you do it albert motion to exclude dr nichols we did not your honor and that's an one st of all as a bench trial and we end that would have only succeeded in upsetting the judge it probably wouldn't have worked because the judge in a bench trial wants to weigh the evidence and more importantly perhaps more disconcertingly the parties your honor in this accusing us of some sort of a mission because we didn't file it out of fear the sherry that you have is that mr nichols star dr nicholas wasn't opposed and therefore that the district court couldn't rely on his testimony if i understand it but if i read the district court's decision that it would have come out the same way without relying on dr nichols testimony my incorrect about that ye therefore there's no motivation to come aside from the fact that that is factually incorrect that that is exactly the opposite of what the court was supposed to do if the court said i am going to utilize toilets definition what the court should from the fact that these compounds mentioned kim beneficial effects on the treatment of diabetes what is there anything more to it than that i mean it is there's no mention of you're a salad and  inhibitors in india in this area talking about d p p four inhibitors the fact that the fact that that the kim reference specifically doesn't have all of the elements required does not mean that there was no motivation a person of ordinary skill in the art is presumed to know the common knowledge and as dr rotel extensively defined there was a huge amount of information that came to the surface between two million two thousand and four him reference doesn't say anywhere that you're a seal lowers blood glucose but glucose by inhibiting d p p the d p p four and it doesn't say that it does not say  references we showed to monsters for this ok you're supposed to come to oral argument prepared to show us you can't just say oh it's in there somewhere your honor i polish it's a huge record i will i will ask one of my colleagues please the court we're asking the court to reverse the district court's judgment on obviousness on the basis of three independent legal errors st as you just heard that the court failed to define the level of skill of art despite that level being in dispute but nd independently the court did not conduct its analysis through the lens of a person having ordinary skill me to because both sides both sides agreed that such a person would quote absolutely and that's a quote from tecate his expert dr nichols have used structure activity relationships to guide the path forward but there was no actual analysis by the court on that question ok but i think you  to not pay any attention to dr nichols testimony because now even worse when you get past the lead compound analysis you still have to be able to  find that there would have been a motivation to replace the structure of dca x which is your lead compound with your self structure correct that's right  k so what's the motivation to do that i mean seems to me that all you talk about is well chemists like to find new compounds and they're trying to avoid the prior art i'm not sure that sufficient what other motivation is there and the amino groups now the motivation to then produce additional potent compounds based on that is the fact that  that the post would want to make additional compounds that are free of patent protection that may in fact have more potency there's a motivation to improve upon the potency and properties of what's the evidence that that would be the case well you're out of the evidence and the requirement is that the that the new compound have properties that are quite similar to the old so that would definitely be an expectation that it would for the potency now replacing the scaffold is not expected to affect the potency if you can hang those scaffold hang those substitutes in the same relative locations to do the same job and that's first of all the motivation to change the scaffold is to make additional potent compounds which is how this field developed you make the logs and further develop potent compounds that you know why they're potent you say we have testimony from your expert that said we want to keep as much of that xanthian scaffold as possible and you'd only want to make small changes to a molecule small conservative not big ones and here you're looking to pull out the entire scaffold and replace it with a new one and the record is quite clear that in this particular art even small changes to molecular structure can have dramatic effects on the properties of the molecule and so it's like a seesaw the more substantial you do a modification the less predictable what the result is going to be and therefore the more evidentiary support you're going to need include conclude that a post even your preferred post person is killing our would have some reasonable expectation of success that you can do this full swap out of these two scaffold and that i think ultimately that's the concern and that was the finding against you here by the district court after going through a full trial and i'm just wondering how is it that that was an unreasonable fact finding here given that your references that you're relying on don't talk about inhibiting this particular two scaffolds that's what he's talking about and that is why you would use i think if i can finish my answer i see my time the two scuffled are very similar if you look at the left hand side of that your yes thank you thank you your honor and may it please the court this courts in the supreme court of said time and again that a trial is the main event not a tryout on the road picture for that reason is there's still a basis for thinking what the district court did here not only is there a basis for sustaining what the district court did that is exactly what the district court  but also basic credibility this judge made affirmative credibility findings against finding that expert some of those findings seem to be pretty questionable such as the suggestion that  one of the experts should had spent his early work on a particular kind of a hit i have trouble following why that was incredible but let's assume  there are there are ample problems with that judge dyke and the biggest problem in this is this was identified by judge kessler which regards to both witnesses both expert witnesses of the defendants and each of their theories what's the evidence that they presented that someone skilled in the art when it don that what all i'm hearing is that it would be a desire to create new compounds scaffold doesn't answer no so they're looking for motivations they are recreating their case after the fact based on having to assume as is judged i q had to make a number of  just in their cases just to get to this point assume that the judge didn't do what he explicitly said that he didn't which is to properly consider the person of ordinary skill level through the higher lens that we have heard a lot about in the opening arguments and that's particularly true that's particularly evident when it comes to his discussion of the judge tesla's discussion of the obviousness type double pat arguments pages thirty nine to forty two he explicitly states that he is using dr rotel as higher standard in that regard so again  with regard to doctor the attack on dr nichols i'm not sure where that gets them because they bore the burden this was a case a classic case of competing experts their experts were found wanting their experts were found to have engaged in hindsight analysis their experts were in fact in both cases were found to have been given their starting reference not by searching the prior art but by the lawyers in the case so the i end with where i started which is that the trial was the main event the judge made finding they're not clearly erroneous he applied the proper legal standards and he said the lower standard of a person of ordinary skill was applied they would have advised of that ever because in fact their doctor for us used exactly that standard of his testimony so unless the court has further questions for relevant in what it teaches about and then i believe he made a reference to a prior art reference in the record that establishes that it was known well i think i i think i also need to bring the court back to one other citation on the record with regard to the last and the reason one of the reasons why this isn't really established in the record is that the other side didn't make an objection to th and there was dr nichols there were no other witnesses the judge gave us very little time to present our case there were no opening statements and no closing arguments dr nichols does not have any scintilla of experience in this field i don't know why it took a to chose this expert but they did it dr rotella on the other hand has extensive experience nevertheless the judge said even though i'm going to agree with you that the higher standard applies he then relied on the testimony you first the st point i wanted to make is on the motivation the the law and this court has made clear that it's sufficient to show that the claims and prior art compounds possess sufficiently close relationship to create an expectation in light of the tally prior art that the new compound will have similar properties to the old and that's it sue case so the point there being honest is that the motivation c come from anywhere and does not need to be the absolute best that there was only one way forward rather it's the fact that you have a lead compound and the whole purpose of the lead compound is to make modifications to it  science proceeds by making these small modifications to see if you can improve the properties and that's all that's needed to be shown for the for the lead and for the motivation it doesn't have to be that it was the single best solution that  predictable has to have a reasonable expectation of success and that's what's shown here given the similarity of the scaffold thank you your honor ok thank all the counsel the cases submitted that includes our session for this morning the honorable court from day to day