good morning and may please the court there are two issues i'd like to talk about on appeal today the first is the district courts grant of judgment as a matter of law that para go from zero to being complete product and not infringe claim to the one thr seven patent and then the second issue is a district courts denial of judgment as a matter of law that the asserted claims are invalid for either anticipation or obviousness and i just asked about your jurisdiction question ye even if i were to agree with you that at the motions panel stage there were mistakes made once it went back what could we do about that is that lo well we we agree that there was there is no jurisdictional issue we agree that at the time the december order was entered there were still outstanding issues and that outstanding issue was primarily the enhance time you made that finding in the decision through a panel decision i believe that was in june of twenty seventeen it's an issue depending no we just said that that it wasn't a final judgment when it her ruling on timing this was was wong because the december order was not a final opinion because the enhancement of damages fis the right to appeal and then and then there was a in other order entered by the district court and we upon we appealed from that that was her that was for a parole or april decision the judges april correct i'm going to address the invalidity issues first i've set aside four minutes for this because that's the subject of our appeal and i'll reserve my time of course if you have questions on either infringement or until the update those at any time court's judgment to say that no reasonable jury would include that davis anticipate and that the reason your honor is that both parties submitted evidence on davis and then it went to the jury the found that davis does not anticipate the claims of the one thirty seven ad so the record is already fully developed on davis and we submit that the record is such that no reasonable jury could come back and find to the issue of immediate and sustained relief in the prior art this court's decisions make it clear that merely discovering and claiming the results of known methods of treatment directed to the same ranges of active ingredients using the same method of treating the same disease that renders the claims invalid now the w h argues that this position is somehow irreconcilable with her position on not and that was clear at the district court level it's not a new argument b w h contends that the jury was actually charged on inherence with respect to obviousness we're asking the court to follow its decisions in the outcome research case the richardson vic's case the novo nordisk case which says look if you haven't known method of treating a known disease and you claim a result it's not  product you can rely on that with respect to the prior art see i'm well into my rebuttal time nice all day before you was taken away on the basis that the court district court believe that the immediate relief required by the claim had not been demonstrated for the accused formulation and that's not the case the evidence on this was extensive and the district court in reviewing it only looked at a part of it and so i'd like to go through that evidence quickly and it down to five a couple things but i just want to keep used formulation was directed specifically to claiming that every an acid shown in the prior art provided immediately and the statement by my colleague today where that there was a difference of dosage in the accused products as compared to the prior art is the very first time that issue has been raised as an infringement position as you'll see in the briefs and the trial record below so the reality is that when you look at we submitted evidence from two tests one ten and one twenty seven that demonstrated that within the first fifteen minutes ago think the largest portion of the test clinical patients received adequate relief that was discarded on during the game or process as eight different parameters or it is a different cram better then what the claim calls for which is onset of relief onset relief actually is undisputed occurs before adequate leaf and in fact pat talks about a significant period of time between those two events so when you show adequately substantial adequate really after fifteen minutes it's reasonable for the jury to infer onset of relief within the about five to ten minutes of the claim as i said everybody in the courtroom during the trial understood that and asked to provide immediate relief that was testimony of their witnesses as testimony of our witnesses  whether it's fact which is the combination therapy or an acid along the increase in ph it occurs very quickly so therefore the onset of relief would occur around that time and that's a two minute mark but i thought  he conceded that the mirror that there's not even an exact correlation between an ass and reduction and and relief and that's a different question at it he what he did say is that pain relief is a more complicated subject and clearly full adequate relief as described in patent takes longer than the about a five to ten minutes and you'll see actually actually in the purdue decision that cited in the briefs they talk about onset relief being a more standardized way of looking at these types of phenomena in medical treatment and that's a case involving pain killers but the onset of relieved he when he said there was a more subtle point for continued for for relief that's true but onset of relief here i think the evidence was rather conclusive dr byrne testified to that effect also that the evidence demonstrated that onset of relief occurred within the first five to ten minutes and that's their position quite frankly the claim is more complex than that and that no no and the reason there the reason it's not anticipated by day this on the merits is that davis doesn't disclose anything about treating episodic harpur which is a method of treatment and it's just and the paragon case makes clear that if you even presented this to the jury testified that heartburn is heartburn doesn't matter but the court's definition on this is quite clear episodic haarp and excludes disease states and therefore that's what they this is all about disease states and therefore it doesn't source but there's other reasons davis doesn't have to support it the second reason is that it doesn't disclose the treatment as needed which is in nursing vernacular p where you treat against symptoms degas doesn't disclose any treatment regimen whatsoever so can't explain it doesn't provide that capability it davis does not include any teaching that would capture the notion of relief that is what's called sustained relief which would last just as want of longer which is what the surprising synergy here is that we need to say are the better described as close as treating symptoms drug very successful people looked at it closely for decades to see what they could do with it and it was tested routinely within acid and proven proposed solutions but they're all proposed solutions for the specific treatment of serious all sort of disease not one of them talked about well why don't we try something that actually might be useful for people who are suffering this very mild discomfort associated with what we call dietary indiscretions the wrong feel food before you know i thin air and that's what dr wolfe discovered is that when you use this medicine in that combination for episodic heartburn in the in the ratios that he identified and he was able to demonstrate that you extended the relief from the age to as opposed to but there are two issues i'd like to jump on one is the invention date because frankly davis isn't even prior on and the record shows pretty clearly that the davis reference is  before was after the publish well after dr waltz work both dr will testify to cooperation was dictated to the jury the jury found cooperation found that the invention date was earlier than davis it was premised on evidence of his own work his recordings of the clinical studies by the patients themselves who collected it and also the information that's found in the patent published i mean filed four months later which included a recitation of the same examples that are found in his notebook confirming the accuracy of those and then finally and witness no it's an it's an un witness no but however it fit the definition of clinical the dates and everything they signed on the rise and submitted and they were netted but they were discussed the other reason they this shouldn't be considered just because this enhanced the argument never presented to the jury and they're not they should be entitled to present brand new arguments for the first time on appeal the whole comparison to the one thirty seven patents in their brief never presented to the jury jerry had no information about that and if i can i just spend a minute or two obviousness i could dress more you have that there was no there what they were not synonymous and therefore the p r doesn't support the obvious this case clearly that the unexpected results here were substantial the whole industry knew you couldn't combine these things there's never argument through that through the expert dr tornay who argued that or not argue testified that affect the amounts of an acid in h two blockers in all the prior davis to sager and the don reference which are largely the three primary references he testified that those were effective amounts and that's how we know we would get immediate and sustained relief that was his testimony and they never contested that on at trial their you still have to have immediate and sustained relief it's how you go about showing it for invalidity you can show it by pointing to the effect of amounts that overlap with the ranges in the one three seven pattern and that's exactly what we did at trial with respect to infringement you can show it in a number of different ways the way they should have done it was actually take our product and test it but they never did that i suspect they didn't do that because the dosage amounts were so low they knew they would not get immediate and sustained relief so what they did is they tried to do it through some third party product the problem was a third party product did not have any and yet the same parameters of the claim limitations in the one three seven patent and i think more importantly dr wolfe admitted that immediate and sustained relief when you read the claim you need to have all five components of the median sustained relief must be felt by the person who picks the drug and dr wolfe admitted on cross examination that there was no evidence of any one is in the record at seven zero four sets and this is a quote neither the occurrence nor the severity of heartburn or other symptoms were recorded and no analyses were done to correlate those observations with the ph records in other words they were simply because their had some ph readings and they were a graph the f d a said that doesn't suck women or pick the place of actually testing it to see whether or not you get immediate relief within five to ten minutes and that's what the district court relied on in granting j mom and then with respect to the symptom relief studies of that my colleague referred to protocols one ten and one twenty seven again he said that they measured relief with in the first fifteen minutes not true the first measurement was done at fifteen minutes and it measured adequate relief and dr  athens enough to allow the jury to have to conclude that the relief started sooner because there was actual there was no link between the adequate relief at fifty in minutes and the ph those were two separate studies and dr wolfe did not bridge the gap he did not say that the ph study in ninety eight tells me that those who get adequate relief at fifteen minutes would get it early or and this means within five ten minutes and there was no backing of equipment issue in this case they were a doctrine of equivalence or simply nothing to fill that gap and i understand that adequate relief at fifteen minutes might seem close to getting relief within about  the statement that the quote from the f d a that was just read into the record if you look at the entire quote that you gave me it says talking about something called rescue my lanta which was used during the test protocol that's and that was during when patients would suffer during in between sessions they would take rescue my lantern which is an acid and that quote has to do with the fact that it wasn't recorded and therefore that undermine that particular part of the study it did not in any way affect the table i'm sorry the figure seven data which goes to the ph drop within two minutes and the logical conclusion i remember this is a jame all motion the verdict came in on infringement the court's the standard on this is that we we get all the inferences to our favor reasonable inference is clearly a reasonable inference to have but the jury concluded based on data that's collected at the fifteen minute mark for what transpired in the first fifteen minutes as reflecting immediate relief within that time period specifically on the their court also granted a provisional new trial we believe that was a mistake because the evidence on this was all one sided we've put in all the evidence they had no rebuttal they didn't have a witness get up there and say it's not a media they don't have a witness in any way contested any of the evidence that we presented on this and therefore there's no need to do a retrial if the court agrees with us that the j mall is in prominently granted because the and the first circuit law in this indicates that there's less of discretion standard but it is less deference to that and here they in their rockslide brief they didn't even oppose that aspect of it the great weight of the evidence prong of a new trial they said that there was prejudice and there was clearly no prejudice in this regard that's the rest of my time if you have any questions i would be glad to try to address