minutes on the other issues issue is certainly not what is explicitly shown or stated or expressed in the chopper forty nine reference well then why are we talking about anticipation if there is no express showing of each and ago in the out of the universe as great lakes case and earlier than that bristol myers squibb first has been but new concision we are entitled to look to what one of skill in the art wouldn't vision when he or she honor that's a question that i don't yeah i know i read forty five fifty eight seventy five or thousands and you're telling me there's anticipation here what i'm telling you your honor is if we follow the genus contrary to what the district court found contradicting itself by acknowledging that there is indeed a family of compounds if we look in the reference itself there is a figure with ours  and a table that calculates different odd substitutions we also have as in the petering case in the carriage happens pacifically which was the prior art there we have something that focuses the attention of the reader one skilled in  art to something one manageable yes if we look at the broad genus it could literally be an infinite number of compounds it could be thousands but we do have something that focuses the attention precisely as in peter peter and it was six examples five particular compounds that attested and then there are five that are singled out as prefer petering the c c p a took the eight compounds and tabulated the substitution pattern that you arrive but there was nothing in the a particular substitution that mccourt it and use that as a vehicle to determine what those one skilled in the art see here if you take five pounds read and lies that that provides a focused smaller more manageable group to look at and engage in the same exercise you get the tables that we have produced the pages nineteen and twenty of our opening brief once you have that you come up with eighteen compounds now interestingly of the eighteen compounds eleven of the eleven are expressed we identified in the reference the five preferred and then there are another six that are there it requires only one to i would i would have thought that you would really focus on the obviousness argument i mean the five and my corrected the five chakrabarti compounds are if you look at twenty two seven zero two seven zero three of the mean it seems that nine twelve seventeen and twenty nine all are marked by a presence of fluorine of probably maybe not saying this in a chemical way properly so there would be on that now thirty four  is is is different compound thirty four the last of the of the five preferred seems to be seems to be different how does compound thirty four match up with the lands of pain or ethical issues how does it match up with it in terms of you know going from one to the other yeah well your honor to go from one to the other instance you have to make to substitution to argument is not to compound thirty four is the closest prior art from which the obviously malice it should be only oh i just i understand that the no i i preach it that the reason i was asking is that it five preferred compounds and chakrabarty for the first four all have flora and i was wondering what if anything was leading full about thirty four because the thrust i mean i think what's what judge young was acknowledged that compound t twenty two was the closest prior art in that it was the next adjacent holo up we have the unbanked decision of this court in dillon which tells us that when you've got such close compounds you would really happy when you told everything is the so called cholesterol evidence that's really what the case turned on as far as unexpected result and what exactly is that evidence that evidence which also turns out to be something less than the patent office considered it to be is simply that tests show that in female beagle dogs given some his declaration suggested that that result was extrapolate a bill to humans it was mislead now the court doesn't need to decide whether that is intentional or not to realize pursuing for example to the court's decision syntax versus appetites case that the premise for which this happened was allowed has been had its legs cut out from under that evidence should be given such minimal weight it cannot be said to apply to a significant aspect of the invention particularly when we realize that cholesterol was one of close to fifty close to fifty toxicity tests that were done and several several tests going to pharmacological properties not the one that was formulated and that could have happened if it was a land subpoena that came first we'd be arguing here about a patent on apple winds of peace and we'd be hearing about the better results in the unexpected results of billy rubin album to be contrasted with the overwhelming similarity of the arc of the molecules then we have it again then you go to them as a peon how close they are one substitution away the lease on acknowledgement that these are so close that these are the the underlying pattern i believe has expired yes so why not use that as a molecule for my be sure but to do that your honor that was somewhat the feat the entire purpose of the limit twenty or so years that the underlying patent was available lilly now tries to denigrate their own patent because the literature of failure it was out there protecting this entire class of molecules and prevented people from doing any meaningful work  pushed the court the problem with the anticipation analysis which the end of his advocate he said asked this court to make a factual finding regarding what would be envisioned in the mind of a person of ordinary skill in the art reading jack regard the nineteen  without also considering all the other information it's also in the head of the person when that person reads the article that article by its terms is addressed to the search for a safe a typical of a psychotic drug the trial court here made extensive findings about what people engaged in the search knew and more importantly didn't know the evidence showed that the cause of schizophrenia was unknown there was no animal model of the disease well you could test for the myriad properties known to in here and close be nobody to do which combination of those was responsible for a typical efficacy no one knew which combination was responsible for toxicity the crude animal tests which is all that's disclosed there were not predictive of a typical efficacy in may and they were only indicative of ordinary skill in the art with everything that that person knows in his head reads jack a body and sees a description of five compounds four with the art recognized neuroleptics and stitch one with the arc recognized arguably to change it to some other electronic drawing component it certainly would not have been obvious to the trial court so found to take it off and not replace it with any other stitch and more importantly what is the replacement  a high truck c f o both of which were known to be important to making these molecules the heart was highly highly unpredictable the rafts are failures i think if you do nothing more than read the first paragraph of the davis article which is  at page eighteen or nine of the record that will give you a feel for the degree of difficulty that people in the search for encountering in attempting to find a safe a typical convict or a failure after failure after failure and what was the source of the failure it was posited not to be the florina intimate scene of contents it was suggested that it was the header row ahead of the sulphur or the nitrogen that was in the ring system that perhaps the problem and if you change that you would never end up with lens now if you want to talk about properties the evidence in the record shows with respect to these compounds exactly what people in the chart already small structural changes in clothes of people replacement type molecules le problems the ethyl substituted compound two to two in a garden variety toxicology test done at the doses that everybody at louis used for this class of compounds showed it a very large statistically significant increase in indeed this compound is patentable here for the very same reasons that the discovery of non addictive energy in may was patentable that property was highly significant and it was a highly unpredictable don't reply brief is rife with hindsight it's right with reference to our invention in the thought processes of our inventors that's all totally improper there is no short cut the analysis is dictated by the statute the test is in the statute the analysis is dictated by greed versus john deere the stuff on which the analysis is done is the complete trial record and when you do the graham analysis on the complete trial record and use that test in one zero three nobody it to try to improve the properties maybe not flory maybe chlorine maybe something else and even if you went so far as to say you'd start with two to two there wasn't any suggestion in there that methane would be better than ethel for any purpose at all and in fact the only discussion in the article about short out kill substitution is in two sentences that are dealing with the fluorine substituted series there are seven compounds of those two sentences eight if you count the one substituted compound that at their own compared to and the only series that has all eight of those compounds is the florida series the trial court found as a fact that the person of ordinary skill in the art knowing what they know would read those two sentences relating to foreign aid compounds and not compounds like about atypical properties jacker bartie nine hundred eighty says that the compound lacks the sufficient minimal activity to be of interest and the fact of the matter is the fact that there may be a handful of crude have a little more than three minutes remaining use the same patent parlance but there's a figure there are groups there's a genius it surely is that was in the charism mr lipsey right that there was nothing in the ark that would have led you if you want to start with flow meza pain to make that the hydrogen substitution or if you want to start with two to two to make the the metal substitution in the first place you wouldn't have started with either one of those in the second place it would have been nothing to cause you to make the substitution but where where is the suggestion first for the starting and second for the substitution when all everything seemed to be teaching exactly the opposite as two hundred twenty one pages of district court opinion pointed out first of all your honor we maintain that as we argue briefs there is no requirement to find a particular place to start the only support for that is one statement in yemen which case which was really a murtha's bio craft mills all cited on page twenty seven of our brief that a prior art reference is not only available for a particular best disclosure as a starting point even for example murphy by our press the fact that only one of skill in the art has to be able to perceive that this drug is used full for this purpose so that as to be motivated to make changes in it to reach the result in obviousness and i don't see how one of skill in the art would perceive that any of these drugs are going the right direction or the perceive that there is a suggestion to make an alteration to get there you are in feeling that came after may still it made it very clear that you don't need both the structural similarity and an expectation of similar properties here we really do have both much as mr lipsey wants to run away from these five seventy four patent by trying to read into the claim limitations such as safe and effective atypical episode katic they're not there we have a compound claim accordingly be disclosure in five seven four itself in chopper party hundred eighty itself that these compounds this class of compounds was dropped her body tells us after saying that this is an example of five preferred this class deserves further study but that's enough motivation to take will worthy of study would be reasonably expected not absolutely expect that they don't have to be the best we don't have to establish for obviousness that this is an expectation that what we will get when we go down to kill a pair will be better than something else full tells us we can have more than one obvious substitution taking from as a people there's a clear motivation judge yourself founded in the sullivan in franklin article to suggest that the  itself might be causing toxicity problems what better motivation than to just take it off and if you take it off your own or you wind up with hydrogen you'll have to substitute anything and if you can stay might you also consider obvious to substitute substitutions or changes they're just reporting the use of the measured pain in dogs and they're suggesting that the flooring might be a problem which would say to one skilled in the art there's my motivation to get rid of it and if i have a motivation to get rid of it where am i