they please the court the peach obvious required to abide by this court's legal rules in deciding obviousness challenges it did not do that here this court should correct the peach as misapplication of the law and reverse its findings of obviousness i like to first two through three twenty four and then in the appendix of five seventy the board itself acknowledges that we had made the argument i ask you mr lombardi how do you balance that teaching with what patent owner would characterize as the teaching away in the labels and answer the question on the substance and then later in the argument of the appendix five seventy six the board again referred to the teacher way argument and point to counsel to the f d a labels so i think it's clear that the arguing with before the board context of all of the information available to one of skill in the art i think that is true your honor and i think even if the labels are a data point that would suggest anything away can't those you can't that data point is that by the additional information that about how and this was being prescribed and used on a regular basis that is theoretically true but that's not the analysis of the board undertook what the board did in our reading is determining that the labels were not a teaching away because they didn't contain approach ishan and then interpreted labels essentially as a teaching towards by saying their technology meant that the practice could be done even though they say it's not recommended and you should do it with caution and essentially saying it's a bad idea to do it the board never really took on the labels under the correct standard of teaching the way he would have the boards analysis was a little sloppy on that don't we have to look at i mean we review judgments not opinions as there is laurie always reminds us some don't we have to look at the overall record to decide whether or not they actually amount to a teaching way i certainly agree that you should look at the overall record i think in the context of an appeal from the p tab it's not simply that you review judgments like you would from a district court the agency must articulate its reasoning in a coherent and logical way to facilitate review and this court has been clear recently that in the absence of the agency doing that this court won't do it in the first instance but i do take your larger point which is why i think it's probably appropriate for me to segue to our larger motivation argument because i think this plays into the teacher way argument and i think that's where most of our case has been focused in terms of the failure to articulate it's on the motivation of mine i think i think that's correct i think it has come up in it in principle it could come up in any context when the agencies insufficiently clear in its reasoning but i think and the antihypertensive and our submission is that what the skilled person would do is not blindly say well because one of the final purity in the next is a final purity but to consider whether it would be appropriate to use  about motivation yes motivation to need to make improvements movement within the known area of possibility right and so and i think the board's own analysis shows it's flawed because they say the motivation to make the invention is to achieve increased efficacy and increased effect on the platelets it's undisputed that same action also cause causes unwanted bleeding it's the same plate with not aggregated and so it doesn't cause a blood clot it also doesn't clot when you want to t the board acknowledged our argument that excessive bleeding would be a problem and it didn't say well you plunge ahead and said no you reduce the dose to account for that additional bleeding and they said it would be fine with us if you reduced it down to the overall potency that existed in the prior art the problem is the petitioners own expert admitted that there was no scientific or medical need to have something that was just equal to the prior art and also that that prior art was approaching a limit in terms of the efficacy that you could obtain and that all you would do with increased potency is dr increased bleeding and so what the board essentially did is in the second step of its motivation came up with a theory that takes back the first part of their motivation they are the idea that you would increase potency on the platelets by using profit for oil and then to avoid the bleeding that comes with it pull back window so you don't get anymore increased efficacy in order to avoid that leaving strikes us a circular but didn't the ford talk about that as a comprehensive treatment and it and say that it's not just increased advocacy but you need to make sure that both mechanisms of platelets in another way so you can get a greater overall effect on the player but that same overall effect on the platelet is cause is going to cause increased bleeding and so there the board used a variety of different terms to make it sound like there were different arguments but they're all really they all get back to the same point dual action comprehensive mechanism of action increased efficacy increase folksy they're all the same point it's all getting an increased degree of inhibition at the plate and so i don't think that that is a separate reason in the boards and elf but weren't there other than a fix just not the increase but let me and let me address each of those directly the first the board said it was faster onset but faster onset is the same double edged sword as increased potency you get faster effect on the place so you get faster efficacy but you also we get faster bleed and so it's not really any different analysis if you had to dial back the dose because a coach so you would have to like well the non responder problem it was agreed did not apply to press a girl that the prior art used aspirin because they had non responders cross a grill did not need aspirin because it didn't have non responders the final thing that the board toxic and the petitioners never argued in the petition in the reply or oral argument that less toxicity was the motivation and the board in this institution decision never mentioned it this it appears for the first time unsupported by any record evidence that a of convincing but are you to agree with me a reference doesn't teach you a absent their discouragement i think that that is one component of this court standard i think the courts articulated by saying if the reference would lead the artisan in a direction divergent from that that the inventor took that as a teaching degree that there's plenty of authority that says if the reference merely cautions skilled person that that's not teaching  why i don't agree that that is a legal rule i agree that in the context of some factual scenarios this court has said it doesn't really discourage you from going down that path it tells you it's ok to go down that path just be a little careful but i don't think that's a legal rule and i think in this case you have one label that says putting them together is not recommended and the second label says these are each going to cause bad bleeding and so if you're going to do it do it with caution and the only expert evidence in the record from our experts saying that would discourage you from combining these two agents so i respectfully don't think it it is a legal rule that a caution is insufficient and a prohibition is required now if i decide obviousness by proxy by reference to prior cases that you look at the facts of each case and that would be i submit the appropriate course here let me lightly with you let me turn briefly to unexpected properties the board agreed with us that we had beneficial properties that there was a nexus to the invention but said well they're not unexpected because the hypothesis of the authors of the article published in two thousand and six said that they expected it but the priority date here is the sandoz case there are two in the record this is the one at seven ninety six in the third and the point there was you had a difference in the way to variables their efficacy and the side effect just like here interacted with one another the prior art gave an expectation that they would behave in a certain way that would be and then official court neutral and instead what happened with the invention is  efficacy remained and the side effect got better which changed the prior understanding of how the variables interact that's what we have here the bleeding went up the efficacy went up but the prior art thought they should go up in parallel that you have to take the bitter with the sweet and what our study showed by the way published in the new england journal of medicine which i think is some evidence that it is a significant finding not not some sort of minor run of the mill thing and then the f d a published their reasoning for approving the drug also in the new england journal of medicine a second indication what our evidence showed is that the increase you got in efficacy outpaced the military's effect in bleeding which was different than the prior art and if there are no questions i would like to reserve the balance of my time he will do that your honor may please the court substantial evidence supports the decision of the board here and i i would like to go to a judge wallach to your questions about teaching the why because i think that's an attempt by the patent owner here to make a legal issue i think there is not it is waived and the fact is that the language that the patent owner refers to hear about caution versus prohibition in teaching the way was in a section of the opinion that wasn't dealing with teaching the way teaching way is dealt with that eighteen after this was it a fifteen where the court is just discussing the prior art that is because the patent owner never raised teaching away with respect to these two references the label they've did raise teaching why with respect have a warning that it's actually dangerous to administer it why and why wouldn't that be at least indicative of keeping away well it's not in this instance your honor because of the art because of this area this is an area where there is inherent danger in any medication that would be used in the board recognise this and was conceded by all parties we're talking about drugs that treat blood clotting blood blood clotting can be bad in some instances and it can be good in other instances and so if you have a drug that treats blood clotting it's it can have the beneficial effect but it can also have the effect of call long bleeding that's something that everybody in this aren't you know that's i think that's probably the very point that your o and already got that the key component the key drug itself is going to be far more potent than the prior art and so therefore adding the aspirin would dramatically increase the danger of somewhere in the record in the board make a finding that in fact there was some benefit even any benefit from the combination of the two well there was there they found two benefits your honor one i had and to give you a a fifteen seventeen and twenty one to twenty two the board talks about the two mechanisms of action which your honor inquired about before the two mechanisms of action here of aspirin and prosector are significant because while is very effective on its pathway the pathway that it acts on it has no effect on the other pathway which is the pathway that the aspirin and so on and so you are going to get an improvement you would expect act at the time the critical time in this case to get any improvement by having the drugs that operate on different pathways this second was what your honor raised before which is the board specifically found a motivation to combine based duration of action and that's at a seventeen and a twenty two of the board's decision and so your honor there were two separate motivations to combine which gave the person of skill in the art plenty of reason to go forward with the combination of programmatic and i should note as well while there has been talk on the part of my colleague that project growth had maxed out in terms of efficacy there's no evidence of that that is an argument that's being made but there's no sufficient advocacy that that therefore there would have been no motivation to use the sulk or what is your response to that well to the motivation to use a cell form and the board found this is essentially the same as the motivation to use obviousness on the salt is clear first the board considered obviousness with the shock to prosecute as a whole in the opinion up until that point in the painting then when it got to that point the opinion the only new question was is there something about prosper all itself that would work because the motivation is the same for prosper all the freebase and prosper all the salt and so when you get to the salt portion rather than repeating everything that it had previously said about  then cut to what was the important issue with project the salt was there something that taught that it could be useful in pharmaceutic pharmaceutical acceptable and that it could be useful for therapeutic purposes and it did do that your hon is the one that the board cited to at age twenty three and the quickie reference at a one thousand one column thirty nine lines thirty to thirty four specifically stated specifically stated that the all an aspirin would have increased bleeding that's precisely what the tritone study found the tritone study in the in the abstract and then in the concluding paragraph specifically states that process the first part of our case about motivation to combine is that it was taught in the art that final purity were useful when combined with aspirin in treating blood clots that's what the arch showed so you started  was determined that it had greater effort to see it was determined that it was better in the other ways that your honor has as pointed out before it was obvious and there was a motivation to combine those two and  pop and dangers and my take on those those labels is saying to that person be aware you're going to have to make this decision based on where the patient is this and i think that's exactly right that is what the label is saying that's why the label is a caution the fact that it uses the term caution is an indication that people were actually using it and  to your point your honor the the person of skill in the r it was found that it was actually agreed by all parties would know how to do the balancing that was there's no dosage claimed here there's no particular efficacy claim here and a person of skill in the art would know how to do the balancing in this case in order to meet what was termed by one of the experts the sweet spot between believing in efficacy in the way that this was prescribed and that's why i think your honor may have been alluding to could there been a reasonable expectation of success given that this is an art and yes there could have been in the board found that when it found that there the person of skill in the art could find that sweet spot  yes your honor i would just go back to a couple points that were mentioned before in my colleague's argument the teaching in the art about the comet combination that the board make a finding that said that the freebase forms of these three things or all the things they weren't all the same you're under that they were different they had different qualities and in fact that one of the reasons why you i'm sorry taught if there is a motivation to combine there's a reason why expectation of success the reason that was offered that for there not being a reasonable expectation of success in this instance was a bleeding risk that was that was what was offered but the board considered and found as i was just mentioning in response to judge wallach's question the board was considering and found that a person of skill in the art would have recognised that there's that kind of bleeding risk but would have known how to deal with that region risk  was just the argument that you mean no the board the board did make those findings the board specifically talked about the this is at the teaching excuse me this is at age twenty where the board is talking about the reasonable expectation it specifically relied on her are expert citing a nineteen twenty four paragraph seventy six where the person in the art he said that her said that the person skill in the art would have known to adjust the dose surprise rope to mitigate the potential for any additional bleeding risks that was that was taught that was testified to by our experts and in fact that point wasn't contested at trial so the board had substantial evidence to support the conclusion that a person of skill in the art would be able would be able to have a reasonable expectation of success because they were able to adjust the bleeding and efficacy and points that were in question can you just respond to your friend on the other side with respect to the unexpected results argument that he said this is not really a difference in degree it's a different thing i think it is a difference it's not a difference in kind of difference in kind would be a project or on ask for and created a new property that hadn't existed in the prior art the property surprise or growth that we're talking about here are precisely the same as existed in the prior art clip it we talked about effica girl that's what we're talking about with process when we're talking about the unexpected results we're talking about bleeding and we're talking about efficacy when there's a discussion of net clinical benefit that's just a ratio of those two points leading got that was what you got there was nothing unexpected whatsoever not to the extent there was any difference it was a difference in degree your honor because the only thing that my colleague is complaining about is that the bleeding risk while more for prosper on aspirin than for clippard girl an aspirin was still more was was not as much as one might have expected but that's a difference in degree because the prosecutor on aspirin reaching a limit in terms of the ethics it could be achieved their expert said that it a two seven one three our experts said that it a three zero one zero second point on the issue that the board pointed to that guidelines that say and the efficacy of it was still unclear and our experts said in the very passage the board is quoting that that wouldn't provide a foundation to use the even more potent press a grill with aspirin which gets me to the labels the point is not whether the labels teach away from clopidogrel and aspirin by giving your caution the point is given this caution in the label would you be dissuaded from using the ten times more potent present for all with aspirin when at press avail didn't need it products and whether the combination produces well on expected properties well i think there are two questions i think the board's circular motivation shows that the skilled artisan wouldn't want to have combined them but if they did the expectation would have been that bleeding and efficacy would rise and fall together and here they didn't and that's significant and just a quibble mr lombardi in our game and the two five properties involved whose relationship to each other changed were both known properties they were the efficacy of the drug and a known side effect of the drug and that didn't prevent it from being a difference in kind and i used my final twenty six seconds to make a point on the salt plains and judge laurie the issue here is not which salt the issue is do you use a salt at all and the reason this is different from the typical case is this drug had already reached phase one clinical trials with the freebase all the prior anyone psychs is the free yes the evidence is that the freebase is sufficient and desirable to use as a drug and the board offered no reason whatsoever to switch at that point to the harder part so i see my time has elapsed