a member of the bar and is in good standing with the highest courts of california have knowledge would prevent fools and i'm satisfied that she possesses the necessary qualifications i've known for for two and a half years  as we talk about divided infringement section one on one and the by a similar act she told me i was wrong and amgen vs sand i was i have forgiven her about that but she gave a very cogent analysis of why i was wrong nine people down the street disagreed but it doesn't matter she has really helped me over the past fourteen months as a clerk and she's really helped me think more deeply about the issues help me  from making mistakes and it's really enjoyed working with there she has excellent character excellent writing ability and analytical ability i know she will be an asset to our bar i good morning mates police court my colleague peter newton just with me at the counsel table the case before the court is somewhat unusual and that the director in a sense agrees with the board that your patient population in the closet in the preamble are not entitle the people wait and that's really the crux of the case isn't it well it is it well it isn't it isn't the reason i brought th states this issue up first your honor is that under the administrative procedure act this court reviews the decision of the order as presented and not as written by the director however both the board and the director the in need of limitations have been the janssen claims and it was exactly the same situation as here the person in need of was found to refer back to the preamble a person in need of the person treatment for medical blast anemia in this case the person in need of this is a person in need of treatment and i'm sorry for that in the reduction or alleviation of enter individual platelet response v variability and metabolic loading have been observed so in this case the director's reconstruction of the board's decision is just as incorrect as the board because the socks right are you suggesting that given the language in the preambles we should be thinking of the claim as including two additional steps in ministering capito growth to a bunch of people claim is written i just need an answer to that question the first before i can think any further is that the way we should understand the construction of your feelings in the context of the clane as presented in order to come it's basically a yes yes ok so we need to understand the single step for side in the body is really having three steps well it as plain your honor's point and the director says it's a single method stuff playing pay no attention to the context to the resonant debt of the invention to the intentional purpose for which the old the administration consideration of all the all the language in the claim it's not reasonable to say that language doesn't count especially here where the if we're going to analyze this in terms of printed on body remember the the in side effects in that context where in the four four two patent is kumar expressing any type of clear intent to limit patient to persons with a cute coronary symptoms would previously have been administered  that amount required for reducing or alleviating in or individual plate response variability and metabolic loading in humans alyssa's would not make sense chemically and come argues that that statement is not support alleviate that patient throughly or perform response to plop a dog that is so unfortunately as i stand here right now is wrong i cannot ask answer that question directly but i would be delighted to the thing is this issue there they have to be good point but the question is what it claims actually say and what does the evidence of record in this case actually show on the administrative record we have a decision word for it says let's or make an observation of what does it mean to be an effective and they do and this is by the way this is the on page in appendix sixteen offending sixteen the sentence to which the tenth and this is the discussion of whether the claim preamble of the board never explains why it seems pretty clear the loss but there's no argument that the words are unclear or anything like that and we go into in detail well like that why isn't it what the green brief said which is that the administration as ox doesn't do anything and a chemical level to cure people that are not good respon all not to me certainly on that i'm not much of a chemist and i but the thing is we have to go on the administrative record and to see what what are these arguments based on they're not based on undisputed facts that the board for the board to find the presence of had a girl resistance pour responder's non responders are admitted essentially a minute prior art it's in the background of the were statements during the prosecution history that everything was known that the as existence of these non responders at the metabolic pathway and the fact that it was this formula for metabolite that was causing us largely the side effects of corporal was already known so on the record as sun argued the motion they didn't make this argument about the claim the preambles not being given patent when they gave the away and said it was known in the art so if this court disagrees with the claim construction or email and i think would be wasteful and obvious this is a question of law that this court can make on the undisputed facts and that you're saying if you do we have more moral if you agree with the board's claim construction kumar doesn't make any separate argument for the obviousness decision or the independent for the independent claims or a number of the dependent claims it's just  construction redux the board made a claim construction and then didn't give patentable weight to the patient populations so there is no separate error in the obviousness decision there's the pen it claims fourteen through ten through fourteen and sixteen that they make a separate argument for in terms of the board's reliance on routine experimentation so that would be separate from the claim construction i don't that argument i think was just as they did make a separate  claim construction argument again for those claims and then said the board erred in using reaching routine experimentation but there's not an error in using routine experimentation when you have a known dosage range for competitor all the claims seven says you will experimentation and that's a question of fact you present one that's correct your honor so we could return to the claim construction argument i don't believe the director has changed the claim construction argument it's always been the board construction gave partial effect to the treating and prevention of from both as an embolism the board expressly says that the preamble gives some basis for construing the effective amount then said that the patient populations were just the contacts and did its best with not seeing steps in the claim didn't add the additional steps of the minister include penna grill and also as runners have noticed they they said there is no effective amount for the treatment of clopidogrel resistance because giving the metabolite doesn't change metabolite and have a treatment for thrombosis or embolism that's what's chemically happening in the body with the metabolite stopping plate right aggregation so that i think looking at claim thirty is a little bit more are always just some kind of contextual atmosphere i guess what i'm trying to figure out is we now know more and more each day that certain some populations of the human race  proclivity for this disease that disease are more resistant to that drug or more you know open to a healthy response to a different drug so why there's going to be some instances where is then further metabolize in all patients to have the effect on platelets and treat them the better i guess the point i'm making it's not like there is something special about the club real resistant people that make x x l better for desired therapeutic fact is if you know what it is then you can determine if it is this court has said in cases like hung honeywell versus mexico just because something is from pain doesn't make it on