and clear error in the handling of of infringement unless according to different preference i would propose to start with infringement and then go to that age  and extra laser drill hole is not patentable the combination after tests are at least must do more than achieve a predictable result changing the with the primary reference disclosed a hole that would form and in the bow and had one hole that was drilled in the difference between vats prior art invention that prior art reference and the cl you needed to mn for was to supplement chains failure to disclose less than a direct and to provide the motivation to to lower the t max to denote the material come out faster than happened the briefs in preparation for this i'm afraid that the parties may have been like ships passing the night a little bit on this issue and if i may invite the court took up a point in the appendix in an effort to answer your question if you might start and dum two four seven two which is  think if you are an page for about a line not seventeen to nineteen timmons is describing that improvements in therapeutic regime should be possible with an extended release but the problem is quote conventional extended release formulations have been demonstrated to invariably compromise the availability of metformin sorry if we turn then to the example five and it would be modification of drug release in vivo relative to the immediate release formulation and with no impact on bioavailability in contrast to other metformin extended formulations reported in the literature so  describing is now have an extended release formulation that gives you the same bioavailability as an immediate release google function and the data it's provided and it's a u c area under the curve data you'll see that the google finds number the one zero one two eight and the example three one zero four eight three are virtually the same and consistent with the teaching that the bio male ability is the same now and that the patent claims a relative bioavailability fees of the google five judge of about a hundred percent with dinner and about eighty percent with breakfast and and if you can see them looking at the table three that measure bioavailability that they are using is made you see the a you see in table three for breakfast is eight point eight and for the foreman after dinner is point nine six so the eight sixty six plan discloses achieving the same bioavailability as google such that now we go to change and change jane was talking about eight point eight five eighty five percent so you're like my accountant on tax day i'm not following lunch it's like you're saying why do you think you could in prose answer such press question thank you i didn't get the answer from pretty much any of the many pages you just directed us to but it could be my density you know so if you would just tell me in prose what is the motivation to combine these two references and where can i find the motivation to combine the two references is do  e the same overall absorption with an extended release product that was achieved within with an immediate release product and timmons teaches that even in the identifying when you absorption and lowering the  absorption the same amount of drug and you would with some with the media release and so it and this is in in contrast to change we're changing is talking about increasing bioavailability but only with food and even with food it's still only achieved eighty five percent of the total absorption vic loofah just able to achieve so the motivation is demons to achieve the same level of absorption as google finds and one would be motivated to modify jangled to do that in order to move the overall absorption from eighty five percent to one hundred percent were entitle to because they were wrongly allowed why isn't that an absolute classic case of patents use which would render the entire pet not enforceable and entitles your client to both turn a season damages why not argue that if i have a chance i will now you the one of the the aspects of this case and this is very unusual is that the wrong pan claims are at issue here there isn't any dispute there's some question about exactly how it happened but there's no question that in fact you've been to done wrong it can i ask you just to make sure i understand it because one unfortunate thing is in the prosecution history sometimes you gave me almost single pages of office actions or or the supplemental notice of allow ability those corresponded to because you would grieve the examiner meant to allow in the supplemental notice of allow ability the claims that are listed there correct yes  i can tell issue claim three reads almost adenike lee on supplemental allow claim five the difference as far as i can tell a seven point zero versus seven without the point zero and then a dinner thing something about there and also discloses important advance in the treatment camp kind of jump right to the prosecution history for a second because you're asserting same one against them claim one is almost identical to claim one which you cancelled or your client cancelled claims these are those are the correct ones you pointed right to the correct one right and then he issued a supplemental notice of allow building to the correct one ok so then it went up happening at the patent issues not with the one from the supplemental notice well the but rather with the one from the original notice which you all agreed and pointed out to the examiner was wrong as to claim one that is correct but then you asserted claim one in this litigation seems like a peculiar choice i would have limited myself to nothing you said it here or necessarily in your brief was looking actually for that very honest admission which i didn't find but you know you can't get around the letter that you wrote to the p t o excuse me your honor that those plans were cancelled you re five point five to seven point five in the examiner did not allow up to seven point five b c that's too darn close to a point which disclosed in chiang and he said he'd be open to reconsidering it if you gave him some special working examples which never were provided in the prosecution his sto y that's what he said in the interview but in the subsequent notice of allowance fix that the examiner issued he did allow claim one over the prior are no no he allowed sign one but then you also you would submit your paper saying you did that in error we actually cancelled  very easy of course your honor the six six patent focuses on an extended release form of metformin metformin has been known for many years as a treatment for diabetes but the challenge that researchers faced in trying to find formulate an extended release for the dog researchers for many years you know when i look at this patent if it's so difficult one would look for a magic bullet that goes right to the researchers who are trying to come up with this formulation there are many variables that are coming into play in trying to come up with an extended release form of a drug it's both highly soluble so it is all very quickly when it gets in water and secondly is only was no reasonable likelihood of success before the teaching of the eight six six patent researchers have been trying for over ten years to try to target that extended release period with this drug is it is it  four twenty four patients to whom this was administered immediately after dinner yes and we also know that the median was five with the lower limit of for an upper limit of a just a do you know that mathematically it's impossible for that result in a mean that's higher than six point three three i agree with that so certainly matched by itself is not disclosing a mean below seven point five within the claimed training because it is mathematically possible in many different or ninety percent of the examples ninety percent of the twenty four different patients numbers that could possibly fit into this it's right within the claims range and then only a couple of them does it fall below the claim range but the whole issue following chang in the examiner was nothing discloses below eight also if you had something to disclose four point six seven and then something that just goes a why isn't the range of five and a half to seven and a half obvious and that if there are two disclosures you get back goes into so what is the teaching to combine secondly or thirdly what is the where is the reasonable likelihood of success you want or that failure of others is a relevant consideration here at least for ten years mest forming in a quick action quick acting form has been on the market and available researchers have been targeting the the goal of increased and extended release forms and despite efforts of many researchers no one was able to achieve this range that i think we're willing to acknowledge and we do acknowledge and it's even in the eight six six patent that it was known that the primary time when a human body produces a maximum amount of glucose is about two am in the morning you think if you take a pill after dinner that gives you the time range that you would target with this pap there was a  significantly but was it different than k it was a something other than cancer no your honor i think i mean why was he in there then there's a couple portions where he'd seen he's doing the distinction between this impasse are what is the purpose of drawing the distinction between this case references were not before the exam and this case was somehow different my misreading wouldn't that i i did not read it that way your honor i understand what i can see that that would be a possible interpretation of what the district court said but i reading i think it's a fair reading i respectfully disagree with that reading but i think i would make the additional point that even if that were the case he then went on to apply the appropriate evidentiary standard an appropriate basis to distinguish case are certainly nothing we argue to the district court judge and that's not how i read the opinion but i think i appreciate the point your honor is making i still think though that he went on to say look there is still no teaching to come by and there is no still no reasonable expectation of success and these references were before the examiner who found the claims allowable over his prior are in that situation we have