may please the court very rarely you come across a case where the defendant itself says it is hard to believe hard to believe the patentee was able to bisphosphonate listed somewhere in oman three list of ingredients in this is clear and eleven o nine and then in the seven seventeen am transcript sixty four line nineteen through six zero one you have to lower that goes as far as e d t a goes what it says is in a particular in body mint a preferred but not exclusively preferred in body meal e d t a should not exceed one hundred  seventy five milligrams right above that it gives a formula for a proportional ratio and putting those two together if thirty five milligrams against the teachings of b r six or one to a lower dose is nevertheless chosen you wind up with twenty to one seventy five milligrams which b r six zero one promises will increase intestinal permeability which everyone concedes was undesirable b r six on teachers against the claimed invention and i think the evidence that the the district court disregarded or dismissed the objective considerations of of non obviousness have much to say here the tever scientist expressed skepticism about the invention over and over again r six zero one teaches away from the invention in two distinct ways first it tells you to pick a dose and then lower it it talks on page sixteen twenty three about the at page a sixteen of the opinion the district court said the b r six zero one did not suggest using less than the known effective quantity of the bisphosphonates bure six zero one states that the problem is to the current treatment by its association with the keeling age and then b r six zero one speaks in both places about one of the ways that it accomplishes that is by increasing intestinal permeability that  you're going to get that if you use twenty to one hundred seventy five milligrams of e d t a it's crystal clear on sixteen twenty three through sixteen twenty five of  quantities than was used in prior art reference delivered to the small intestine key late and alter intestinal cami ability then you will be able to enhance absorption and reduce the in fifty nine through sixty of the defendants cites to dr gates saying that you can apply a two other references mitchell and mine a combined then do a calculation and well first of all she disregarded the fact that dr yates said that seventy five to one fifty would be the range it's also the case that the district court did not rely on that combination to support it obviousness decision in its entirety that's in a special section about reasonable expectation of success her obviousness opinion is founded and rests on b r six or one which is the reference talking about the is simply about measuring calcium in the small intestine a different places my headache specifically says different results were reached in a different study there was no attempt on the district court's case that's the fairweather tate reference that states mention there is no attempt by the district court to reconcile the different teachings in these are all of this smacks of hindsight and this court said the dependence of the key later doughs and the bisphosphonates it then goes on and provides examples and i think that it's in the pharmaceutical arts having prophetic examples having broad claims  choosing to assert the narrowed ones that that's it that's a sensible strategy that's trying monitor that but it's the essence of hindsight to look at the patents and use them as a blueprint going backwards and one of the things  some counts less than one percent with food it approaches zero so most of the references in the prior art were seeking to boost absorption across the board the inventors here wanted to achieve this testimony that there may well have been pretty keen lation of the the food and the e d t a and i think that explains also why in one nine hundred seventy eight reference of record in the prosecution like every other bit of prior art why there was such a gap between that and the time of the invention here at the end of the day the objective evidence of non obviousness was systematically disregarded or ignored it answers these questions why did it why did the district court heard five days of testimony from expert far formulators toxicologists physicians and from fact witnesses was able to assess their credibility and at the end of the day issued at sixty eight page careful extensive opinion with that addressed all of the evidence a trial on edge wasn't something on the zero one is just record down says look i'm acknowledging that issue in the prior art and i am teaching you how to solve it use a lower amount of eden t a a and you can do that by administering to the small intestine instead of the stomach takes care of any safety concerns pointer also pointed to by the district court said i use two hundred fifty milligrams of e d t a on an empty stomach in the fasted state no harm no access to absorb so there was nothing unexpected about the one hundred milligrams  this safety issue had anything near one hundred milligrams of e t a the poor girl reference address two hundred fifty milligrams importantly here there was no expert testimony at trial that even in the fasted state there's always a calcium buffer in the intestines so you can get e d t a and completely fasted state and there would be no harm at all to be u to the type junctions unless all the calcium reserves in the intestines have been depleted and that simply wouldn't happen with one hundred milligrams of e t a as the district court found and as the experts testified that this was not the first time that one or child i characterized those references the lin janitors the college references that it now planes teach safety concerns and what the examiner didn't know is about the warner chilcats statements to the f d a characterizing those references as teaching no problem with one hundred milligrams of just briefly the secondary considerations points i'm hard to understand mr elkins argument that the just report overlooked something if you look at the court's opinion there's a careful analysis of every single one of these secondary considerations that one or chill had tried to i didn't think so you're still from the bitumen thank you your honor the twenty to one hundred seventy five milligram range there was a failure in there forty milligrams the court disregarded said that there was no evidence as to why it failed a thirty seven eighty five which is the document the district court cited to says there were no measurable results really concentrations in the fed state clearly are copying there is no contention here that the district court as i understand the district court simply disregarded the issue of copying there's a section in the memorandum an opinion titled failure of others and camping it doesn't  that the experts agreed to the safety of these low doses not true i'd like to point to the undisputed evidence that the prior art said that seventy seven seventy nine eighty x two sixty four and fourteen fifty eight back up argument according to dr jill or the did just get food flies through the intestine so quickly that there can be no concern but the prior art again of record the t x to thirty four panel to mid page in that reference six fifteen paragraph ten said the transport through the intestines is slow and allows absorption so dr