that's the first time in american jurisprudence that's happened there aren't coming this is really a historic event to move you in from a factual perspective it is your honor this is insofar as we're able to tell from the cases that has never happened before there are a number of issues that we've raised in the briefs that warrant this court's attention i propose to focus on three today i'd like to begin with the effect of the court's failure to consider at all their prime fish ability evidence and how that nests with this for example dr sue act discusses the sullivan reference which talks about how unpredictable the artist and she and she ness that or with disclosures in for example the kovacs article which says that this order is so unpredictable that when one puts the same dosage of estrogen into different women the blood serum levels are substantially different and that the or finds that to be inexplicable so even the same the i'm sorry i'm so so the report and the reference it's that at the scotsman's yes i then proposed to move to the to the legal effect of the district court's failure to consider an issue not raised in the prior and in which is whether or not the ordinary or some would have started with kovacs at all in light of the art and i propose to finish with even assuming kovacs as a starting point what is the legal effect of the district court's failure to consider the considerable evidence that the testimony and let's let's just reset and remind how we got here in the prior as the court knows this case has been before the court in that prior pinion the court had before and all of watson's experts testimony and effect none of dermot's and on summary judgment viewed through the lens as one does of summary judgment this court and we think properly looked at all of that evidence and said drawing inferences from it and court said this explicitly in its order the district court took that prime face showing and said it didn't need to look at any any of dermot's prime fish of libby evidence and so it disregarded all of it so this is not a case where the district court look there are evidence and made findings on the part of face evidence with which we disagree this is a different case this is a case where the district court just didn't consider it at all and said so explicitly we don't have to guess injunction this court looks at and implement junction test is it proper just to look at one side evidence or must one consider all of the evidence and this court said without qualification or ambiguity that the the the question of whether a substantial question has been presented can be reached if and only if all of the evidence is assessed the district court considered in the in the prior opinion this court did not consider because the issue wasn't true and the question of whether or not the ordinary origin would have started with kovacs at all is new information for this court from watson on that very question in of oral contraceptive marketing had never approved any extended cycle regimen either with or without the traditional hormone free interval what is the effect of that fact and not considered in the earlier in these or watson's words not ours suggests that the state of the art was far from developed enough to support an object of expectation of the effect of unopposed estrogen let alone different doses there of following an extended eighty four day regimen that is we can answer that question by looking at art that watson and books and let's look at select one thousand nine hundred seventy because they answered that question in part select reviewed three different prior studies there were three studies using a forty to forty two day first interval one study using a sixty three day first interval and two studies using eighty four day first interval so she didn't start with eighty four in terms of what your view that the dominant if you look at that the predominant number they're most artisans for starting with forty to ninety four x is not what he to she then studied a number of regiments thirty seven patients on the forty two day first of all which is consistent with majority of the of those having studied things started to forty to fourteen patients out of sixty three day and only sixteen and eighty four so most of the of the regimens that you actually studied weren't and eighty four day regimen like kovacs most are forty two if one then looks days within that i don't like to do math on the fly but i think that's fifty two different possible regiments there fifty two different lengths and it's examples it lists six different examples of this twenty five twenty six thirty five forty nine seventy seven as potential first interval links but not eighty four and this dr select explain when you consider that art and the dominant historical paradigm and her own studies in one thousand nine hundred seven none of those point towards starting with with a four day first interval and as this court taught in for example the key to chemical said in our brief when there are a number of potential lead compound case as a starting point there were nine here there are many more there needs to be something that points the ordinary orders and towards the assumed starting point none of that evidence has been considered here this was not an issue that concerns about cancer and remedial cancer in particular from extended regimens and the general trend across regimens away from increasing the estrogen load the patients are subjected to extend regimens do exactly that kovacs while the prince of references on which watson lies talks explicitly about how the extended regimens that it's studied expose the patients to it i think it's thirty two percent increased estrogen load consideration that the ordinary artisan would have been pointed away from open access starting point there's also contemporaneous evidence that kovacs would not would not have been regarded in the art as a success if you look at  effects of extended regimens so her opinion now at like her opinion then was that kovacs even within its four corners had pointers away from it as being a regimen that should be followed by let's assume that the ordinary starts ordinary some other star there are there reasons that an ordinary artist and would not have chosen ten micrograms of unopposed estrogen for each and every of seven days when it is you want to save three minutes  did he consider i let me first of all say i think that both parties have been somewhat they've not been completely accurate in represented except that which the select report had been in front of the court the district court i think got it right actually in its opinion that we're now looking at when it said that the select report was in front of this court that is it was part of the record on appeal so your explanation for what the district court it was that he didn't  understanding that was part of the record on the first appeal now i think the district court obviously you know misunderstood the law of obviousness and the the prior are when it first read of the motion for summary judgment in durham it's favor and this court for six months ago you know look at all the prior art and the only four piece of prior art that anybody agrees is critical factor a minute made this argument successfully to the district where the requiring that references show data or guarantees of success and i think sumac report is not and the in would not be motivated to combine these references the supreme court said basically when you have two known techniques and the question is whether is motivation to combine those those two techniques together completely appropriate in following given the fact that this court had consider entering a censure rejected all of the arguments that are really being made here again today and have been were certainly made in the appellate briefs have been submitted and were made to the district court in the on the which is you know kovacs teaches a way seven forty nine patent teaches a myriad of combinations and does not teach the specific reference the argument that the suit lacked two thousand article simply suggests the use of unopposed estrogen but does not does not give adequate data to ensure that it will be successful and this court i think with respect the seven forty nine patent i think a seven for one patent nails on the head of the seven forty nine patents expressly teaches unopposed estrogen that can be added to any extended regimen these are all known oral contraceptive regiments the kovacs regimen which which had commercialized the season al certainly was not a feeling or otherwise why would  why would why would women have commercialized that particular regimen that is one known taught in the our extended regimen and some forty nine patent cheech is that you can take that and add ten  so i believe that you came as close as you could the questions to me at oral argument were you know do you believe counsel in this patent is is obvious as a matter of walk i said i can't ask for that now because we didn't move for s critical references what do they teach at this court has looked at those references i think the district court would not think of you know saying something different what this court has already indicated those references say you know it is has looked at the prior art has already given guides the district court and the like fact that the court is now in part because of that the nature of the remount has indicated that it does want to hear a summary judgment motion before they decide whether a trial is necessary in this case that this is the district court here it did seem to make some statements that prime of a should case of obviousness is binding on this court as judge laurie pointed out there really was not a holding that fact that i believe i believe there are what is on the speeded here is that there are these critical piece of prior art the are truly prior art they say on their face what they say and just taking an example this court statement about the seven forty patent you know the seven forty nine patent however expressly teaches the administration of seven days of ten micrograms about the lesser trial during the traditional hormone free period following a variety of of obviousness being binding on the court's seemed to seem to foreclose any review by the district court of anything other than secondary consideration that is the way the court apparently  a pro choice did i think in part of the question i have is what i thought it was that was that role or not that i don't believe assuming that's what happened and i had i don't believe it's in part of what happened because we did explain in our proofs to the district court and if you read the transcript of the argument we pointed out that these were of use the arguments about rosenberg other are teaching the way soon all those arguments had been made before the score and had been essentially i think i would say and we did argue this rejected by the by the by this court in this part of city and therefore the court we said should not be you know misled by the same arguments being made again now in other words let me see if i understand what you're saying and our courts initial opinion  only looked for them they had an opportunity to come in and challenge upon a facial case of obviousness which they failed to do as you say so that was already before those arguments already before the court and so that's why the district court just yet before him on the motion that was submitted for the t r o as well as on the original summary judgment motion so the argument that the other side is making it even really explicitly and i can't say that he looked at it on the record as it was before the court previously and but you don't make findings like i cannot i do not know what was going through through the courts mind i do in looking at it looking at the i think you'll see that if you take a look at yourself you'll see that it addresses the same makes the same arguments that were made to this court in the first appeal and i ask  question at the back would you look at a one forty five which is our again what we say on the record before us there appears to be no genuine issue of material fact there we reference the teaching to cope acts the seven forty nine and the two lack articles statement prima facie obviousness it's it's our point that that was not error in the context of injunction motion in this context where the court had looked at the key that would be improper for example because this court doesn't make factual findings in the first instance we are asking that the court vacate and instruct that in further proceedings in this case whatever those be the court has the patent these kind of facial validity evidence and you got the answer that the district court simply deferred to it that is not correct and we know that from the board i mean look if i could invite the court's attention to a four through five excuse me a five from six the court says there explicitly the federal circuit specifically remanded the case to the score for the sole purpose of evaluating the remaining grain factors and those of the secondary considerations factors that whether the district court was exposed because it clearly was  presented there wasn't there was additional evidence for example we showed that them or said study on a comparative basis for only two out of more than five hundred studies studied drop out because of breakthrough bleeding what have been the pointer for the ordinary orders and not choose kovacs where there was a seventy percent dropout rate overall half of which were breakthrough bleeding for the ordinary person to choose or sat as a starting point and this additional evidence was not this that it was not it was not in select this was additional because it at page five pages five six the court says and then frankly wrote in response to the the porsche we read the court says the rooney and was specifically for the sole purpose of evaluating the remaining bra factors so not any of their pri number of choices in the art then one can assume then one can make quick easy assumptions about what the are taught and whether that whether or not that would have been a motivation to combine this court's case last since that makes clear that when there is a broad array of choices that teaching from case are doesn't apply and that's the situation here we have even in the first of all the long wait just on the interval forget about the dosage from twenty five to seventy seven thank you thank you mr winters