question of law that is informed by three major factual issues that are largely or should be not in dispute the scope and content of the prior art the differences between the art and the claimed inventions and the level of ordinary skitt so what is the scope and content of the prior art and the differences there are three major groupings of prior art the first is prior  that addresses solid dosage forms of p p i plainly the most relevant group those are part of their prior art i would put them into the second category which would be liquid prior art which i'll get to in just a moment so you are talking about  prior art which i will also get to include stability prior art and the court's questioning both of the court's questions are understandable because the ke solid dosage prior art as well as the prior art as a whole which is the important legal test teach a way teach your way in a pointed manner from dr phil clearly teaching that you can combine the sodium by carbonate with up premises all right yes they just did why wouldn't one skill in the art say that if you can do this in a liquid formulation with benefit why not just wrap tums around the premises all because one needs to as this court's decisions and foremost look at the prior art as a whole and the district court failed to look at the strong teachings of that first group of solid dosage prior art which state and state consistently that p p i must must be in terror code so someone reading the prior art as a whole not just one piece in isolation would come away with that the district court ought yes now right we're talking about i think two different issues one is one someone has conceived of this invention and then has said i can make a solid dosage form and not code it with an entire would i be able as an order sent to make it a solid dosage for the answer's yes that's the reference and seven thirty seven but the solid dosage form prior art seven three seven being a doctor philips patent the prior art such as the five zero five love print patent it's not discussed by the district court opinion were by car it says there must be an inter coding so to the nine sixty ba one i'm focused on is the sentence the court was addressing and the question is if someone has conceded to the invention as opposed to following the conventional wisdom as demonstrated in all of the which taught away from dr philips invention but if someone other than dr philip stocked or no conceived of the invention could that person of skill in the art say yes i know how to make this solid dosage form that's what dr philip statement means it doesn't address directly whether it would be an invention as it was to in fact come up with the uncoated form it's surprising that these three key pieces of solid dosage are and other solid dosage or is not discussed at all by either the district court where or by park now let me go to the liquid art and that's represented principally by pogrom will first of all there is a major difference it's liquid there's no dispute that you could bombard the stomach under certain circumstances with enough sodium bicarbonate to reduce the acidity to allow some earlier another p p i to enter the bloodstream but note what's being done here isn't it experiment this isn't really a dosage form for regular patients one has to fast for ten hours have a pretty dosage dosage form is a be more precise it's a liquid suspension could grant discusses solutions suspensions in this case a liquid suspension even though one of the ingredients at the beginning is a solid that's dosage a suspension and then he also goes on after the experiment to discuss different delivery forms including solid forms and he explicitly quote rules out the uncoated form that is the heart of dr philips invention with all the other limitations and expresses a poet friends for a solid dosage form that is in toeic coated so even the liquid prior art is teaching away from dr phillips invention now the third group of the prior art the stability our prior art the makino in yemen art it's addressing a somewhat different problem and both sides debate in argue how to characterize that art i think it's fair to say that both of those references are addressing stability and the problem is the inter coding itself is acidic and therefore tends to degrade or destroy the p p i up so bad art is saying emphasise it's a question of the prior art as a whole does the prior art as a whole teach away from dr philips invention it does and i believe that what is contained in the  teach a way or is it just true that in terry coatings have been more successful in fact in the marketplace they remains more successful and so no one felt the need to move in another direction with the working so well so i think it teaches the way and these are about the strongest teachings one could see in multiple pieces of art take for example the final five for an patent by the way pope brain is one of the co inventors there so it's a and if i accept the court's assumptions the answer is yes but i want to point out that a number of the claims it is shoe including a number of the exemplary claims all of that would not be pertinent because it's for a number of reasons let me  here right but it's a number of claims such as the three four six claim sixty there are five claims in the seven seven t patent and there was a finding that seven three seven was not available for priority date because of the no show call for eight imitation that took i would be delighted to do so here's what the state of the record is there are four kinds of treatments that are discussed in the patents when we call them red white and blue and muddy brown it's p p eyes and asse description that the inventor had in mind that the invention or some of it his claimed inventions could include the no so coral fate limitation priority as a whole and we have to ask him poet the question and does it teach away from the s or does it teach in this direction or is it neutral but it's a strong teaching way and it's logical so first of all that a mission person of ordinary skill would read all of the teaching the way all these other experiments solid art liquid art and the like and come away with a firm conclusion that it's not going to work this is explained in a number of ways but let me call about one piece that ends this is dr george sacks this is after dr philips it filed for his patent applications he's considered to be bad dean in this area of science he expressed significant skepticism he said we men he used the word man are assets to creators and it's absolutely unpredictable how any one of us how much asset we will secrete or how much we will see create at any point in time he concludes that the same tyrus product throwing relation just won't work in may and that's a paraphrase of what he actually said the dean of this area and from that point of view it was not only the prior art but the people of extraordinary skill in the area were convinced it would not work the only way that one comes to the obviousness conclusion of the district court ignore the most important prior art which was done here by the court and by par and to use hindsight determinations and to use a test that two of the principal ingredients but not of the limitations in the question of obviously it's as i think in these circumstances it is a question of law in the following sense if you look at a single reference keeping in mind that one must look at the entire body there's no dispute about what those references say now there are times in other cases many other cases there are some rocket clarity in a reference but i read three references where the word must be used used in a crystal clear manner so the facts were not in dispute h two blockers and then haggis that stretch for many many years and yet no one used anything other than and tearing coding for thirty years or more if this was so obvious why show reasons but that isn't the whole invention we have not just that combination you have that combination in a pill form with certain prescriptions beyond that your idea with all of those you do in the prior art shows all of that had the prior art shown any place where you put it into a solid pill form yes in fact throughout the obvious this in both blamers showing that it works powders mixed with a liquid so these are obvious references references that render obvious to the claims even if they're starting with the powder and mixed with the liquids that's covered by the claim construction that was advocated by a problems i'm sorry if you know if it's a pill or not and acquiesce powder solution yes vention is a pill if you change the claim construction  did not discuss there are three reasons why those particular references should be completely disregarded and rejected one of them is because those references are not references that pars were lying on at all as par number t procedural now not one witness at trial testified about those reference they were not introduced during the trial trial at all in fact those particular references were only referenced in the post trial briefing not one expert or fact witness has testified regarding  teach to want to ordinary skill in the art so here we are just with these references with the same quote taken from all of them all of them happen to be from astra zeneca the company that made probably the second did the the commercial version with tara coating all of that  office just really made a big mistake on this the patent office made a big mistake yes because all of these claims are obvious in light of the prior are now with respect to the the three references that option and that's the way that some of these the companies have commercialized them and there's no evidence in the record as to why this would be more of a commercial reason and you can speculate that someone would want this type of dosage form as a as a humans the other references like lamers show that it actually works to to take the gastric acid down to a level that solves the problem in people with this disease so lamers actually shows in a clinical study that it works and that would be a motivation for a company or someone else to actually use this particular combination how do you deal with the secondary considerations there seem to be a lot of them commercial success c there actually are a lot of secondary consideration considerations that were brought into this case but the district court had it right the district court stated that start with copying for me copying is one of those things in a hatch waxman case like this that it should be given worse very wrong way to copy the zac product so you can get on the market without redoing the testing isn't that in itself testament to the value of the claimed invention that you're willing to copy it because that's what brings you great value in the marketplace you can't make that leap at all and i have to actually case because what you need to do what the companies need to do as a generic is have a product on the market that is bioequivalent that's required under the a rules so it's vital dating what i've stated why is that not an indication of the value of this particular product you've got to have that to get on the market and you want to share of that market if it was of no value you wouldn't go through the process would you the testimony in this case showed that what time did was a downer find the low hanging for what is a cut what is a drug out there that's not doing that well that we would be the only other competitor on the market so in this case they have done a find a drug that was probably not going to to have much of a market share that they wanted that market share isn't that it testimony to its value this is a business decision instead the generic companies look to see what types of secondary considerations often are is testament to the business thinks this is important enough to put out the millions of dollars they have to go through the end t process and you're saying that's irrelevant in this case it should be given a little weight copying in all hatchbacks when cases should be given little weight because of the constraints of the f t way in making sure that the drug is bioequivalent and the commercial success in this case hasn't been shown because of the small market share and also because there may be in the market share for less than one percent and also there may be some sales that are just due to price some discounts are marketing and there's no growth shown with this drug so commercial success wasn't proven but i think one of the most important things about secondary considerations in this case is that there was no nexus shown there's no showing that their sales or any purchases because of any features of the claims remember that is very successful on the market and that could have been the reason for any sales whatsoever so the district court was correct when it found that the appellant's did not show any secondary considerations and they failed to establish any nexus between that certain drugs are not as advantageous as say p p r ice and they include in asses so sue kroll fate and asses in that list some issues with showing that they know what it is they know what has disadvantages why doesn't that support the limitation of none of that in this claim here's the problem with the point you wanted that as a teaching that it should not be included in the claim that same site is only a few words away is an sentence which has a negative to support what they think is a negative limitation knows who profit and at the same time were includes an antacid sodium bicarbonate it's completely inconsistent and that's the only reference that they can and in this case the there is testimony from an expert who looked at the applications who looked at the specification and testified i see no written no support for having no feet here so the testimony there was factual all of these claim with patients and you must make sure that you do not include so that would be but it's a question of fact but it can be used as both an active ingredient and a buffer ate and dismissed the argument you've been making to us for the last five minutes and you don't know the answer that strikes me is a pretty important reason to suggest that maybe there's at least possession you know which is a pretty low support again there's no sure that argument's now out if you admit it has differences it has differences all of the agreed ingredients in that particular line have differences i don't think that changes the argument however because the argument is that the  inventor included a long list of things that he said were not so good and yet only one of them is considered to be he put into the claims as a negative limitation another one of those ingredients he included as case the cross appeal is a very straightforward it is essentially a legal issue here because the district court found that the inventor dr philips and his patent attorney mr mahoney failed in their duty of disclosure failures he also found that there was no credible explanation for the failures to disclose so basically what the district court was compelled to do at that find a spot at that point was to find there was deceptive intent as the single most reasonable inference for these actions the court to hold that way effectively what the district court has done is required a very high standard where there must be some sort of affirmative direct evidence where for example there's a confession by dr philip saying i intended to deceive the patent office i the court found by listening with the testimony of dr philips and dr and mr mahoney that their their testimony strained credibility that it was that their explanations for not discoursing seemed unlikely  in this is that we have clear convincing evidence that there were failures to disclose material information that these uses were not confidential even though dr philips told the patent office later that they were confidential they were never kept well we also have other evidence about that could lead to that do lead towards intent and that is that mr mahoney the pap prosecutor who was also the one in charge of licensing these patents had shopped around all of these patents to various companies and only once he had a license see some terrorists and dollar payment and half a million shares of centerra stock then he disclosed to the patent office all of these prior uses that dr phillips had made this is commercial he th know and the fact findings are that everything leading up to this shows deceptive shows that their failure to disclose that they knew that the material that is there there's no credible explanation even though they they were credible so all of that evidence should be enough to find in the will conduct and this is reversible error i'd like to reserve my last minute please thank you you ma julie give me five minutes may proceed and want to focus on the first and most important argument of opposing counsel opposing counsel on the question of obviousness said ignore the most important prior art that with solid dosage forms first because they're not relying on well that's not what the law is the law is that one must look to the prior art and the teachings of the prior art as a whole and the challenger to a patent doesn't get to pick and choose what prior art constitutes that body of prior  yes and so were the other two patents i cited as well as other prior art that relates to the same issue there is a statement by opposing counsel that there was no testimony i'm fairly sure there is testimony a number of places but let me cite one place we're able to find in the last minute and it's at eight seven six one seven six two dr fenner team is the expert witness firsthand taras he's not referring to these  three by their actual name he's using slides he's referring to later patents they're still prior art but his discussion of it makes clear that he's referring to these patents that state that the p p code there is no explanation and par offers no reasonable explanation as to why the most important body of prior art was completely ignored by the district court now if this court agrees that that is a flaw in the district court's opinion we believe that this court may simply reverse as opposed to reversing and remained the reason is the facts are not in dispute we see the pieces of prior art we know the words in their four corners there's nothing subject to interpretation oboes words in this case so there ought to be a reversal thank you it's almost two score and i didn't hear him argue anything about inequitable conduct so i think we're we're finished