they never sorry i've lost like i've already lost where i was by the i'm trying to figure out why the suits ted putting that in the order and then disappears from the claim for purposes of valuating validity and it's quintessentially conventional activity to give a normal dose to somebody who's got a normal metabolism but our view is the claims are ineligible under our construction of the claims as well in mayo had methods of treating schizophrenia by giving out liquor those are exactly what your honour's talking about a a new way of using a drug that's what you got into other arguments that are made that kind of don't deal with the direct that say there's no specific intent because of what the label says am i right that there are really two separate things here and that's right and there are independent bases for reversing with regard to the lack of intent to induce the trial record so that even under an so band of construction of the clan that a normal metabolize or being those sort of normal dose is sufficient to satisfy the claim only a single patient in the six years that the language they accuse of induced it was on the prove to get the injunction and so this and by the way this is not an action of something as you know but this this is not an action under him to because the patent didn't exist at the time that the didn't it's limited to a patent let me get back to the inducement we think this is just like one or lambert this has to be a traditional two seventy one b claim and that's what they sort of to try but the rate of infringement is one instance of a one patient potentially being those in an infring what it does is it makes it a common set of operative fact under thirteen sixty seven you're getting to fifteen d i think there are going differently i think there are two so we disagree with you that it brings it into the future but that it becomes part of  and they're right i mean sanofi part of what the majority lied on there was the seventy seven percent use and they relied heavily on the other hand they go on to say a lot really is saying that depending on the clarity of the drug level of sales but as in one or lambert where the where the purported sales are so low it makes no it defies common sense i think this port side to say that somebody would intend to reduce average behavior and i think that's the distinction we see is that when we're far below that if you  salient questions the first is whether it refers to you know typing the second so you agree that the only way to identify this is to do you know type testing and the label says use laboratory test that it doesn't say use laboratory t says they were available and all of the expert physicians your honor all of them testified that it was not a recommendation you also have vandas own dr white who wrote an article saying that there are no recommendations in the label so the six now that language from the published article outside of the context of litigation which parallels the inference that inquiry alone shows clear error because the question isn't whether a judge views it as recommending the question is proper prism which is what a position to do it as a recommendation of the direct infringer secondly the evidence overwhelmingly so that is and we're talking about information that literally parallels the infringement inquiry there is evidence a wealth of evidence saying they looked at the batalla light in the blood and that's phenotype being were targets of whether i have gene or typically for metabolize or status if i have a certain metabolite level little show that i'm metabolize in the drug of a certain level it could be because i'm a smoker it could be because i'm taking a concomitant drug that interferes with the ability to catalyze the drug so you can feel or type somebody with looking at their drug levels you know typically that shows how you look fabulous drug physically as opposed to your genetic predisposition to doing s just what is your argument that if the laboratory tests that nobody is saying that's a recommendation so weird is that take you know that means that there were that that that there was they'd have to prove every element and they have to prove that the label litigation which is their own advisory board member saying it doesn't recommend a pharmacy k b the fact that it's not reimbursed by medicare it's it's deemed investigatory not necessary all of that evidence shows clear in addition it corroborate wasn't based on general hyping and the point is he joked he chose the former tantalize or and the normal metabolize or at the same rate that's a seven thousand and so for a while fright is that what you're saying now that the  metabolize are always got twenty four milligrams that's a seven thousand the normal metabolize or was at a lower rate and then was elevated based on his symptomology he needed a hi what percentage of the population this i think the label says around six percent it depends on your ethnicity but you know in our view there's  good morning may it please the court i'll start with infringement since that's perhaps fresh in our minds so the district court did make fact findings and the question for this court is whether those are clearly erroneous the district court found that for metabolize those in the label refers to gene the typical metabolizes in other words people who have this these genetic mutations the district court found that the label is the recommendation even though the label recommends reducing the dosage for people with this genotype it doesn't actually recommend using the genotyping test to identify those people that because it uses the words is and i think what we have here is a semantic argument that even though the label recommends reducing the dose for genetic or metabolizes and even though it is because it merely uses the words i'm happy to address that you want to and in our view the entire issue of whether there be proof that people have used the us out in the real world with a pattern honest product is not something that's legally required and we didn't set out when we were putting ou role from january of this year and most recently santa fe and what they say is we look at the label language and if the label instructs recommends promotes orange or encourages the the practice of the method then that's an infringement under two seventy one and two now in eli lilly there is a specific from january of this year there is a specific statement that we have not required we the the court has not required evidence of prevalence are not within the ambit of what it's talking about it is a method of treating schizophrenia wherein you identify you have the population to treat the people to be treated and divide them into two groups and that is if i that we are saying that we believe that the district court was wrong and that in fact this case this claim involves the application of three principles that could be characterized as laws of nature sure if you want to try to apply that situation with this plant where it involves the intersection of three separate putative laws of nature and that then leads us to a place where we could have a very elaborate debate as to whether that is or isn't a claim that's quite directive to a law of nature because i think you're one of the right question is not whether the dosing of any drug to any patient for patient population is routine it's whether the dosing of list required by this claim is routine here nobody had ever done this right by cutting the dose in half and in order to understand why this invention would work you have first of all to learn a very important fact which is one of the things that the parents versification teaches the world which is that there is a major difference when you look at the two metabolites which are called ph d eight and p ninety five it turns out and the inventors of this plan were the ones who found us that ph d h has the characteristic that i think that it's not a claim that is directed to a law of nature because because it is a claim that involves the application of three separate laws of nature and that is a legal matter that is not the same as a claim that is directed to a law of nature district court did not agree with us on this that it passed a step one of as well so that it it would it would  doesn't matter right they've got the same amount of both of them in their body and the going to have the same amount of duty from gratian and what these inventions did and this is precisely what's referred to in the patent what the district court referred to when referencing intermediate biomarkers was they all looked at the ratio of the two metabolites and they correlated that to the genetic polymorphous m's and they from that they for the first time were able to understand that routine in any city in any sense of the word and to judge hughes question by the way the the patent judge who says that about fifteen percent of the population have polymorphisms like this the label says that it varies on depending on what ethnic group you're reluctant to approve things that have the side effect and so it was not until the invention was we're able to come up with this that they went back and got the approval and as we pointed out in the  landscape looks to us on the one of one issue which the method of treatment we could debate we don't think this court needs to engage on the step one question the simple way forward is simply to say as a district court found it's certainly possible step t with contacts citing occupy that for him to smith there must be evidence of direct infringement and here there was a failure proof council if actually conceded they didn't set out to prove that there was direct infringement that's a failure proof just like into keda the court doesn't have to even get to the issue of inducement now on inducement i don't think it is a matter of semantics when the language has been in the label for six years and physicians say they do not regard it as a recommendation that's not samantha that is action or inaction and what i think is is is pertinent is the reason that people are doing it it's not reimbursed it's not a recommendation they be violating the standard of care if the standard care truly was that the drugs should only be given after genotyping on the label recommends genotyping they be violating the standard of care when they don't do that and that's why dr retained testified without rebuttal that people simply aren't geno typing it's not a matter of all of them said they had never seen the math and practice they had never seen anybody do to type on i look carried on those citations are in our brief i'm happy to supplement that but simply it's not being practiced and our concern is affirming here simply because of the subjective views of  a judge as to what the label recommends when there is no evidence that physicians view it as a recommendation would be dangerous in the sense that you would have extension of the pap monopoly of the patent on the compound of the method of use to you could always and you know affirmative when there's no evidence of direct infringement that anyone's ever practiced the claims of written we think there is a failure