issues you would then have this fixed date as to when it's going to expire seventeen years later therefore an application that exists later is going to have potentially a longer patent term than this earlier that on its priority date so the priority date becomes a very very relevant here as to what is the priority date if the priority date for example let's just take take an example here cortex is invented in the year two thousand in two thousand and fifteen the same company that creates cortex now invents a a drone two things i think one you have to look at the invention as a whole that's really i think the most important piece that we have or you have to look at the invention of the whole as a whole i mean that's that's that's not just in double padding but that's an obvious  how do we do that we have to look and compare it to inventions the date that that invention was invented is important in that analysis how do you compare two inventions without knowing the order in which they were invented if one is invented fifteen years later how can that now be prior art just something that was invented fifteen years earlier where in fact cortex for example is have to look at the prior patent but you have to look at the claimed invention and when was the invention made i think that is an intrinsic part of this ok because otherwise how does that question apply to this case to this case what did they say wrong that this so this case the only thing that matters to the patent office and it's a very simplistic way of looking at double patterning and it's very efficient but it's not the right way because it ignores all of the equities the important question the how they should apply it is they should look at when was the invention made the first invention and compare it they're taking an invention that can be made five ten fifteen years later and calling it prior art to the first invention it's not prior to the first invention is real prior art to the second invention the pact the patents all what's being cited against us in the pas claims that happened to contain the word envy a b n it was a method of ministry a method of you know that that's that's what they're missing here they're ignoring the invention complete invention these fads these patents the invention if you look at what is the invention it is something else it's a method of treating cancer it this drug no not necessarily the focus of it is actually the proteins that are in that you think the board got wrong i think i think it's only a piece of it i think it helps us look at what they're doing wrong they're not looking at the invention as a whole and i think that that really if you look at the case law in general foods i think that is the most likable case here you really get a good understanding of kind of that kind of problem that they're having comparing if you look at general foods general did i think it it occurs it two levels i think think they don't do the right comparison and i think that they're they're not there they're taking the info in order to compare the claim the patented claim there it's impossible for any of those claims to be rejected for obviousness because m v a b n has priority back earlier than any of these other happens that's what the the the patent office has taken our initial invention and the a b n taken these later inventions that occur six years later method of curing cancer reverse the time by six years and said now we do the take into account of the two ways that it needs to look at the inventions in the order they were made if you reverse the order of the inventions it starts to not make sense anymore especially when the first in be left only with m v a b n where this is the original patent which we're now beings well the original application which was earlier they were gentle invention which was earlier how can that possibly which is priority and says later pat how can you now reverse things and say no now it's obvious you get it doesn't make any sense it made sense in a post gap world let me tell you what why it's just the equities are very important here it's an equitable doctorin serves really two reasons that have been one see it as well one is to avoid the extension of time in a pretty good world again that was very simple the patent issues anything that issues later extends the time  that is not an issue the patent office has not raised any issue that we're getting an additional time out of this in fact we've already filed ten turmel disclaimers to simplify the issues which if have fixed the date of the patent this one issue we're not getting any patent term extension out of this that's that's not an issue at all the other possibility is this harassment issue that all of the harassment cases of that that we've read and everything cited by the p t o with respect to harassment harassment has to do with claiming essentially the same invention here we have two separate and distinct inventions they're very far removed they are not essentially the same invention so there is no equitable reason to have a double patent rejection here  what is present however is the opposite the inequity on a very important but very a nordic has in these patents diverse different kinds of inventions that they have invested millions of dollars in trying to develop and now if if a terminal disclaimer is filed all of those their entire portfolio is linked together and they can't try to sell off ownership or create new companies with pieces of it that's an unacceptable solution did not consider the invention as a whole but i think chaplin it is confusing here is that the that the board applied a one way test here and what the board did is that first construed the claims of the application at issue and then product is prior art and it was known back when the initial p c t s location was filed what the very nordic should have done at that point was first file claims for protecting that building block itself  now chaplain's primary argument regarding the affidavit is that there they argue that here there is no time life extension of the claim because they have already terminally disclaims the pending application against other  helpful for your honor to actually look at one of the prior issued patents that would help to determine whether or not what the very nordic previously thought had protection for and has already issue claims on and i think one of the  here when the very nordic again very north make choices in this when prosecuting the fabrication it chose to file this application later in time and then it also chose not to file the terminal with claim or and the reason it chose not to file the terminal the claim or which chaplin itself concedes it's because they did not want to be unduly restrained and being able to license that application that application or the prior patent that it already has a ship so i think that goes to the very heart as to why the entities are there any further questions your honor tha would like to get other patents on in v a b and with slightly different language for infringement reasons certainly what the p t o is doing is stifling the ability for the very nordic to make progress to make new inventions later completely different inventions and still continue to develop these additional claims to protect the original subject matter there is no there is no fear of of extending the patent term all of them are fixed by their priority date that's not changing anything the later ones they're completely different inventions i mean i think the talk about harassment is only a political if you look at the case law in very narrow circumstances where there's two claims to almost the same thing clearly not the case here i mean simply overlap between two patents is not enough for harassment simply domination that's been by this court has been made that it's clear that domination is not the same as double patent two patents can cover some of the same subject matter the point is you can't cover centrally the same thing i think the other point that i'd like to make just goes to the case law with respect to what the patent office is doing there taking a claim that may occur five six fifteen years later treating it as prior art to an earlier claim this is n p a b n this is a claim for curing cancer the removing the invention and using words in the claim as prior art general foods says you can't do that in re sarat in re sutherland in right aldrich all of them go to the same point this is not you can't do this you can't just ignore what's in the claim you have to look at the claim as a whole look at the invention compare the two inventions and what you see in these cases with you go this way or this way doesn't really matter there are two completely different inventions you can't take the invention out of this one to find that they are the same