an expectation the case involves an obvious it's finding based on a single prior reference the zero one five patent which is directed to a ring intentionally designed to deliver the required for a moment from to medicaid a compartment court modified that references no one hundred year old law fix law to eliminate one of the compartments and change it into a ring with one compartment delivering all of the required hormones but the old one five patent priority in itself recounts the history of failed efforts to make one compartment rings where one compartment delivers the physiologically required amounts poses had recognized the advantages of one compartment ring twenty five years earlier due to mechanical issues for example it's easier to assemble and they tried to make one compartment ring test result one compartment delivered all of the hormones using fixed law but every attempt going back twenty five years failed to provide the required physiological required amount that is a contraceptive bring these to the liver or estrogen and progestin whole and a daily basis at about the same rate over a period of time typically twenty one day it can ask you this is kind of very specific but solution where if i'm reading it correctly the combined part compartment could be up to ninety seven percent of the right if you have ninety seven percent of the rank as  combined compartment which is what your brain is one hundred percent it isn't really that big of a stretch to go from ninety seven percent combined to one hundred percent we're out of the patent is not to square one five then discloses a generic teaching saying that the second department can be anywhere from one to thirty ratio the first department thirty one it just discloses release rates i'm preferred bottom it's only that's closer says nothing about what would happen to release rates if you modified specific example there's a generic there's a teaching i'm age eight thirty forty one which states the lengths of the compartments of the ring change of shape device are chosen to give the required performance ratios of the length of the first and second compartment are contemplated to be between thirty to one and one to thirty but usually between fifteen to one and one to one that is mostly the first part which is all the protest protest and only protest and prefer of about two to one there's no teaching there about what would happen with respect to the release rate so what i'm talking about is not a motivation to try things the question we're talking about is whether there would be a reasonable expectation of success in delivering the physical logically required amounts so there's no specific example just that you can make modifications but there are preferred release rates or talked about later in the past with respect to refer to body parts so if we focus on a reasonable expectation of success that is that oppose i have a reasonable expectation of success if you shift that all of the protest and into one compartment would that give you the steady release rates required that page three eight three forty one does not address that there's no specific example there's no discussion of release rates at all in fact the the five seven to the old one five that is embracing the teachings of the five seven six that it states and page one that all prior attempts to put everything into one pain all the have failed and it cites the five seven six patent which gives a history of the prior as well and then gives what i think is very crucial here two examples the five seven six pat one three zero six five as an example six example six has a first compartment which is about nine percent of the ring which is only protest and that it has a second compartment which is ten percent of the ring having some more protest and so it's a small amount and all the estrogen and at that page it teaches for example six that you get a linear release rate but the five seven six pattern also is an example one where it shifts all of the protests into one compartment and it teaches at the only teaching in the art at all is the five seven six that would show the release rate goes down and then the prior attempts that are referred to in the old one five and prior attempts fail because of mechanical problems and the last  simply the stoppers and if we go to the one five that itself and that's a page eight three zero three nine the zero one five pence not teach that the problem is the stoppers it goes through the history of these attempts at one compartments and at line twenty one says these above mentioned one compartment rings have the disadvantage that when loaded with more the one active substance released patterns of these substances cannot be adjusted independently such devices usually show some optimum release patterns for the different substances whereas it is generally preferred that all substances are released in a control rate and during a similar duration of time as a consequence the release ratio of the act release rates that sent page three zero three nine if we go to line twenty three so that in from lines ten to twenty they are counting these one there's a discussion of a three layered one compartment ring no issue about stoppers there and then it goes on if you look your honor at line twenty three assists such devices show sub usually show some optimum release patterns for the different substances and then it goes on it since it's generally prefer all the substances are released in a controlled rate and during a similar duration of time you want the asteroid in and for justin to come out at the same rate  dosage every day over the period of use and says as a consequence the release ratio lets the release ratio of the what you release a protest and and asked and undergoes a change after a period of time means that you start off with action protesting at the right ratios but one of them starts declining as to what it's supposed to be delivering and then you get that effect that shown in the five seven six pattern where when you load it all in compartment one of the two substances cannot be released at the somebody tell me why why the zero one five that doesn't provide a sufficient teaching of super saturation or the old one five pan does not provide any teaching of super saturation but know nothing explicit there are several compartment that at point eight which is the concentration we're talking about it could be super saturated or could simply be saturated with christmas so point wouldn't tell you one way or another there's no dispute on that at trial the question then is since you have a concentration of point a to b there can be supersaturated or you can be saturated with crystals and it there was no teaching in the old one five ten as to whether it was in fact saturated crystals or super saturated and the courts find it was based on they be of silence there was a reference to the first com not if you have silence as to whether or not there's crystals present are you then to assume that there are no christmas presents because your first compartment would set the description was there crystal present the first compartment because that has a huge amount  to the plaintiff and by this court standards the missing feature which is super saturation needs to be necessarily present not merely present crop possibly or probably present as be necessarily present and all dr keyser could say was that and still mourning my place the court your honor may i start with where council started which is what the old one five teaches the old one five teaches that you can get a single compartment that comprises ninety seven percent of a contraceptive frame that has more protests and an estrogen that has super saturated amounts of protest and and they deliver in the proper manner that in other words has a good release that's what the zero one five teaches and wh does the zero one five teach the appropriate release rates when the ring with the mix of europe is ninety seven percent the only part doesn't have bass but teaching that specifically says that but and that's that but the problem here is you have to go to one place to get the ninety seven percent you have to go to a different place to get the the concentration and then your rely on this general state  embodiments proportions and very different from the embodiments concentrations so yes he may be able to point to specific places but he even that it's no different than the actual body that's jaime application also teaches us that one rein solutions don't work well certain something one ring solutions don't work and the district court dealt with that factual issue of teaching a way very specifically  use a different structure or both and so it was a different situation with those specific prior art single compartment approaches what happened in the zero one five was it used a different structure and a different material not silicone and it was that that led the zero one five to be able to put everything in one in one compartment and so the old one five teaching on its face is that this ninety seven where i will i will get a page cite for you but that was this was all fully testified to by dr kaiser you're supposed to come with the reference as you know you're supposed to read to be more familiar with the record than we are so that you form of single compartment that was rejected in the prior art and the old one five took us to a different method of doing that and a different a different type of structure and different materials being used and that's why the year one five was the advance that it was and that's why the year one five would be expected to work with those did not we're not going to come back to my question about where in the only one five reference there is some something to suggest that when you expand the mixed compartment to ninety seven percent of the ring or that you would get a physiologically satisfactory release ra invention your honor it is an invention that has various ranges of the protests an estrogen suggested various substances subjects and suggested that you can make the rings with yeah but i don't find any suggestion in that  don't find anything at all that indicates that if you go to this particular end of the range that the result would be satisfactory well the suggestion is on the face of it's right on the face of the  five that within the range is suggested in the old one five within the range suggested the old one five you get a good release pattern what did your experts say about this that's the question this is what judge this is where dr kaiser is talking about the disclosure that you can make with more projection than estrogen it goes down at line twenty two it includes ratios where you would put more projects in than estrogen into this mix component we've been talking about and we're in a sense that if you do that you get physiologically appropriate release rates while the physiologically appropriate release ra let's go to the rest the ninety seven percent and release the appendix at twenty two seventy eight your honor going over to twenty two seventy nine line nineteen doesn't over one five disclose the length of the second compartment that can be changed yes it does do you bring the much to illustrate that in the identified to much of that line for on the next page twenty two seventy nine so the inventor here is saying that you can choose to give the required performance of the i v r which is basically delivering the fils security physiologically required amount of the i v are you can vary the relative lengths of these two compartments from thirty to one to one hundred thirty so this is very fungible this works out to be one hundred percent of the total length it could be for first compartment and three percent for the mix compartment or you can invert it like i did there on the right so whatever the concentrations of protest in estrogen can that michigan fart compartment be effectively the entirety of the device will repeat the question and then sure this is that clear and convincing the answer that dr kaiser gave klein for on page twenty two seventy nine says yes so the inventor here is saying that you choose to give the required performance of the i v are which is basically delivering the psychologically required physiologically required amount of i v are you can vary the lengths  mixtures you know it's it's seems to me he's drawing some sort of a conclusion without real basis to do so well and your honor i think i think this testimony indicates that he pick up on that a little bit can you tell me about the super saturation because it seems to me that that's the key to success of the single compartment mixed ring that the protest and is super saturated and i i just don't find a teaching again to suggest any sort of link between super saturation and the success of a single moment when the well aware of crystallization and well aware of calling it out when it does occur that when it didn't mention priscilla's ation it was fair to conclude that there was complete dissolution that was the finding of the district court which again super saturation did in fact occur now to be if you can prove inherent see through inference just like you can prove beyond a reasonable doubt you can prove something beyond a reasonable doubt there's circumstantial evidence the fact that it's inference doesn't make it less of a conclusion and the court pacifically noted that it did come to the conclusion and this is at at page i believe it's but here it seems an awful lot like he made the district court made a conclusion of bobby innocent as interest that section and said it's obvious and then moved on to the secondary considerations isn't that understood the proper analysis for secondary considerations it considered the graham factors and motivation combined first and then it turned to secondary considerations it recognized that the burden of proof never shifts expressly it recognized that and and i can point that out your honor if that would be helpful but it recognizes the burden of proof never changes expressly and recognized that it stayed with one or chilcote throughout and so i don't believe that there was any issue here of the court flipping the burden of proof onto the other side in this instance and there's nothing to indicate that that's the case but i mean again i don't want to belabor th on the basis of the nexus issue they don't argue that he was wrong in what he found about commercial success personally i don't know the underlying factual findings but what do those factual findings show that there was a lack of commercial success i'm dubious of that that well they they they don't show that there was a that there was commercial success for purposes of obviousness your honor and and the point but the ring that was sold was an of the patented invention right to bring that was sold was an environment that's current to god creates a presumption of innocence it does which can be rebuttal and the court found the bottom line i think summarizing what the court found about each of the secondary consideration pieces of evidence was that there was nothing in that evidence that taught that or showed that the five eighty one invention was something new or novel beyond what existed in the art namely the zero one five and that is what this court is concerned with was secondary considerations is do the secondary considerations provide evidence i think there's something new about the five the one patent over the nearest prior art which in this  and the court very clearly found that that kind of showing had not been made in this case and in a commercial success your honor the court found and this is what i mean by what was not challenge in this appeal found factual findings that  the reliability of the expert on were side was not reliable that he omitted to consider marketing and in the course of doing you know this is what i mean it wasn't just immediately around it was a period of seven years that they didn't consider the results and the results didn't indicate that there was a profit for this drug and so there they attempted to provide commercial success testimony their expert was not credible we presented a contrary expert and so the district court who clued it to commercial success didn't support the idea that the five big one was what national success measured in terms of profit or in terms of revenue i think i think probably both your honor it depends on the particular situation and there were some not saying that there were revenues associated with with the rank but the ultimate question is does the whatever commercial success twenty seven oh yeah about the ninety seven percent and all of that i mean i'm not so sure that this says what your colleague says it says but i'm not sure that it doesn't you're right or this testimony simply stating that you can deliver the physiologically we're part of mouse in some way but then it goes just goes on and says you can vary the lengths it doesn't get to and there's no teaching in the patent so i'd say two things one it either it's it doesn't address it i don't think it does it simply states there's a teaching about delivering the amounts and then says you can make adjustments it doesn't tell you what will happen when you make the adjustments and if you go to the reference itself there's no teaching at all as to what would happen when you went to something with ninety seven percent so let me make sure i've got this what you think this says is it says you can bury the mouse and it can be effectively almost the entire ring that doesn't say anything about when they're all work that's right your honor doesn't say well what will happen there's no teaching the cat about it and you're on the next issue just very briefly counsel has stated he agrees that there should be a presumption if you go to a twenty six one felt need twenty five years of failures the court concludes merck fails to show a nexus between industry recognition  longfellow meet in the patent features at the bottom that paragraph the court states because there is no relationship between the inventive features and the industry recognition they do not weigh in favor of a fine if not obvious to the court impose the burden on merck it was not an and therefore there would be no reference to it and even if there was an inherent c with respect to super saturation which there is not that doesn't get you to a reasonable expectation of success the court may one finding that there spect super actuation instability he said page a sixteen second although the p c t zero one five does not teach that a supersaturated ring would be stable it also does not indicate that a super saturated ring would be unstable that is not a deferred but a finding of anything th