the morning your honour's and may please the court there was a clear error of law committed by the district court and grant think summary judgment that no one equitable conduct occurred in the preacher meant for the pack and sued in this case the district court applied the wrong standard in assessing and determining obviously you thought it was closer to where you are but again the the question of closeness does not necessarily drive what is material and what is not material fact of whether or not once but it does have a lot to do with what's cumulative and what isn't iran it was not an argument here waste of cumulative misfired moving in this case and the only we have to go back to the record your honor they moved for summary judgment without the benefit of expert testimony the only evidence in the record on the issue of the closeness of on and which he pointed out in his expert opinion that in fact that was not the case and so the issue of what in fact was the closest prior art is a clear issue a fact that remains in the record remains and the women or seem to think it had what it needed it was happy with warmish must be never requested more your honor that's because the examiner was not aware of what more was out there and more importantly the examiner was misled to that point you have to take a look at the totality of the prosecution history they were faced with a clear rejection of crime aphasia case of obviousness based upon a number of similarly similar structures with similar sized chains in responding to that office action let's focus for a moment if we could on the first office action what apple consent for to do in that case was established the expectation of those skilled in the art not that there was unpredictable what the expectation was going to be and the expectation they said for the examiner was that compounds when this structural clash are expected to be typical and the only way they could sustain that expectation is why not disclosing to the examiner their internal knowledge that other prior are calm pounds in this structural class were atypical so when they provided data to the examiner to support the false expectation of typicality they went through their files and they proffered only that data that showed typicality while not providing me examples with the balance with the other half of the record that they have also tested other compounds and these other compounds were in fact but i'm not i'm not sure what that has to do with generators comment about the versus x i mean i  case as we look at what a reasonable examiner would've should've done but it seems to me twenty years later after three rejections to say i mean the examiner didn't say when they proposed we don't have x it's going to cost some money to produce that upset because it's close there it doesn't seem to me under a reasonable examiner status standard that that is questionable if not you're telling parties that they ought to even if an examiner accepts what they offer and they think i reasonable that they have to think about well i've got to give them more than he says he wants or needs because i make it a challenge twenty years later but infection or that is in a sense that is what happened here they did give the exact well first of all the examiner asked for two and they complied with fifty percent of that they gave him or him and then they gave them some examiner something else they didn't just show the beatles or something better but again that is an issue of fact but they also you have to look at the entire picture of what they'd good but  had thought that novel i mean if you were you you probably would have said one no we really want apps and i don't care how much it's going to cost you if you want this patent but the examiner decided that that was adequate to satisfy his needs and i don't understand how we're supposed to sit here and say that was an unreasonable decision that he may but the case goes further than that your honor just given and i would submit that just giving the examiner what he or she asked for when you have knowledge of other material information does not fully discharge or him have the information on x you're not just spewing but they would have they would have had to done it test you dispute maybe how much it would have cost them but you don't dispute that that information was not readily available you know what based upon the record there is no evidence that they had data per se much much sex however your honor there is evidence in the record that based upon testimony of one of the named inventors they had an expectation that much sex would in fact have been a nother atypical anti psychotic be so it wasn't just they said we don't have much sex because it would be too expensive to generate the data and we submit that that was a material of misrepresentation to the examiner based upon the record but they went beyond that they said we're going to give you schmucks because we think it's closer it exists today on the expert testimony in the only evidence that they have on their side of the ledger on that point of closeness is attorney argument the chemist on our side analyzed schmutz exorcise what's been and again closeness is not just a function i will describe in my prepared remarks and cut right right to it the a couple points on closeness first as mr levy said there is only evidence is the opinion of ted his expert that travel with structure wouldn't you because structurally by merit of her vacation she must be as close i would have been you'd have trouble because you yourself made that observation when you used it is the basis for your op your obvious examiner sitting there at the top decide it concluded i haven't rejected this application three times previously that this would be an adequate substitute and if he went and we don't know that he had sat well now i'm not sure doesn't support that schmutz brain was identified to the examiner in response of the first office action in the examiner in his rejection reiterated the closest prior art is schmutz x that so then then the question is all right then why did the structural obviousness rejections only saying it would have been obvious to change this structure to this structure but moreover that's it that's not all arisen in the record as the court this is this court has recognized a moment ago  the applicant said we think he is closer than that examiner must have agreed he allowed the claims he could have as was his legal responsibility if he continued to believe that x was closer he would have insisted and should have insisted legally he is required to do that if respective of how spends it they would have been too for the applicant to make x as your honour's also recognize to have a relied on be not x and there now abandoned obviousness to fast there is something that troubles me here the district court ruled on this motion before the close of discovery conceivably if they'd had a chance to fully compound was toxic in fact the evidence is to the contrary well that that's just a hypothetical and the point being that with discovery we might not be debating whether or not some of these things are in the record or not appellants had full opportunity to take that discovery and if you're right it was cut off early that's the point it was a much sort discovery remaining this this motion it is ruled on before the discovery finishes before the expert discovery finished that's correct the judge viewed that there was no there were no genuine disputes of material fact in other words he concluded that no reasonable jury could find that to make it and find out his testimony was that he thought it would act just like the metal compound two four zero two eight which he found to act through metabolite which was this kinetic that was is that was the testimony it's not that he feared it would be a typical in fact in this case to have it is a stop to contest the unexpected and not nature of a typical anti sop anti psychotic research sandoz conceded that issue when it abandoned it's obvious in this case under these circumstances even if only one of the closest compounds had proven to be typical that is a cause of this kinetic reactions that would made the knowledge on the other more remote structurally compounds irrelevant to pattern ability in other words the information would have confirmed reinforce the pattern ability of quick typing because the closest materiality to support their inference of intent there is no materiality here for at least three reasons a much less a high materiality the information on the four compounds was not inconsistent with the narrow patentability arguments presented to the court secondly let's assume that contrary to fact those four compounds were in fact a typical discoursing them would have reinforced the unpredictab clearly was not interested in any compound structurally more remote than the ones that were closest nor would any reasonable examiner have been under merchant under merchant says when you present comparative tests to establish pat you're only required to test those compounds which are closest to the ones you are claiming examiner birch fully aware of off or compounds picked other contents moreover he knew which the subject of the motion this past week he knew the structures of all those compounds yet he did not pick any of those four compounds as being closest he did the job he was supposed to do it focused on the closest a for example didn't detract from the showing with respect to the closest come the attorney explain why schmutz and was being presented because it was in the same list with much x and moreover it wasn't it so much i was never tossed tested for dyskinesia potential so the suggestion that should much of a data was presented to bolster the argument that structurally related compounds were not view that an inference of intent can only be made when it's the single most reasonable inference that can be made i submit that that is far from being the case here and in fact you can get by with a a much easier inference well it is a there is a sliding scale between the two the court here never reached the balancing because the court  appellant that applicants here made this broad general argument versus off structurally similar compounds was simply not made the focus in the in the patent office was narrow with respect to the closest prior the declaration was not submitted for the purpose of showing that other compounds were a typical it was submitted for the purpose of showing that the closest prior art compounds were not just like in the  materiality for that same reason thank you your honor let me know that none of the confidential information is have is so we will defer entirely to astra zeneca on that point in the two or so minutes that i have let me just try to bring out to the court in fact what took place here during the course of this prosecution and it is typical and nothing in here teaches a typical any in response to where and they said we've tested one compound of the world and that is typical with regard to two hundred seventy six which was a german language publication which they gave an abstract they said it does not claim it is typical they made an affirmative misrepresentation that it does not state that it is typical that was an affirmative misleading representation and so what they did was and with fouch they said that  well you're right i don't believe that they've taken issue with that fact because again it never says that it is typical what they said is that it took a calendar would have been so surprising that if they had discovered it would know it would have been in there so its absence is an affirmative statement that it is did not get carried over to the next office actually by simple virtue of the fact that they told him it says it is typical it's not surprising they gave him the answer and again i know that i'm well into exceeding my r data was not supportive when they submitted it in effect saying the smuts a data was submitted apparently to be ignored but his assertion is inconsistent with the middle declaration which said that the data showed that compounds which could be be predicted to be active would not also be a typical the date on each month say showed that it was not active it esther has no explanation for why the date on schmutz a was provided and the data on the