think i'd like to begin identifying what it is the issue is on appeal and what's not being appealed we are appealing the lower court judge and relating to the application of the merck versus bio kraft look no further than the four corners of the four to two patent now under the merck analysis you've got a combination out of the hides and knocks and alls about twelve hundred possible combinations  problem but that doesn't change that there may well be a reasonable expectation of success and that's what we're talking about with respect to obviousness here so the four to two patent application itself sa to see what the patent application itself teaches in terms of determining a possible or potential solution to the problem that rather it may not work if there is unpredictability the art we recognise that and that's what  sleep was talking about let doesn't change the fact that there could well be and there was in this case testimony about an expectation of success but it's when the four corners of the four to two application itself and that's why we  that mark applies in fact judge sleet legal test under the merck analysis really amounts to about two lines in the opinion and we rather than from attempts to improve them prior compounds it doesn't require there's a separate obviousness line when you're dealing not with synthesize and studied and disclose opinion here but that didn't alter the fact that this court found the patent at issue in merck obvious just as we submit here the one two five percent of the available salts of pharmaceutical acceptable f d a approved salt here that very same article went into evidence at a nine to one nine of the record identifies mallet as a set in point one three the district court erred when it discounted and did not cite to that evidence and found instead that there was no evidence submitted there absolutely was moreover with respect to the four to two application if you look at statements replete throughout the specification saying that compounds that are within the scope of the invention are expected to be suitable for treating cancer through this numerous combinations and there obvious here i would i would change that a bit i don't think it's quite as broad as your honor is suggesting to choose i think that when there are multiple tests for proving obviousness and when there is this combination set up where you get the piece of prior art in it's for corner says you take one of the and you combine it with one of the  and then through routine experimentation you get to something that is later patent and that previous bit of art comes from the same  then yes when it's a discrete finite number of combinations then absolutely i agree there is a matter of law but those twelve hundred odd combination references over a leader that have the same patente that's exactly the situation if you that's exactly the situation that we had in good logs or the reference doesn't specifically mention this specific combination or later in the same disclosure there are examples of here if we take your argument to its logical extreme i mean isn't it going to be that if some scientist decides here's this exciting new theory i have for cancer treatment and i've discovered that if you combine these two different classes they do all this and if they there are hundreds of thousands of combinations i don't have the resources to try these out i'm going to publish an academic article in this because i want to encourage progress and people go out and do the research and patent a new revolutionary drug and somebody comes back and said well this is already been mentioned you know ten years ago in the scientific article that's par isn't that going to team himself is limited to just a lead compound analysis for chemical compound patents then the patent team him or herself has control all over what is prior art for obvious ss under one o three so this is said of a application by the same company and it said that or a researcher publishing it academic journal would you then say it's not prior art i would say that there's still an argument that we say anything about that makes any legal difference for an obvious analysis of the clip didn't parse it that closely as far as i can recall however the facts the print facts upon which previous pfizer progeny it's the same company the same entity their patent application should be held against against pfizer i think that there is a there is a rationale for that now i'm not suggesting it obvious but a million i mean that sounds to me like a fact finding that's left to the district court not a matter of law which is what you're arguing today i understand your honor but the key that this court has already applied to twelve hundred i'm not asking for that they want us in the district court here for them to for if one reads the market district court opinion the burke district court opinion is very very similar to the district court opinion the judge sleep rendered with respect to this be from williams and calm over the apple these may please the court after a bench trial judge then chief judge fleet of the district of delaware made factual findings made credibility determination challenged by mylan on appeal and all of which are supported by ample evidence in the record and in particular as we just tried mylan doesn't challenge that under this court's bedrock lead compound analysis  so that the multitude we have here that the application it here is a classified drives combine them with another class of two drugs to get a promising cancer and they don't go through it lists every single combination but you know that's a fairly limited universe isn't that kind of or say obvious for a smaller universe to choose i think the answer to that was posed in your question to mr carson which is that is and matter for the district court to assess given all of the evidence and the factual determinations and the witnesses and the credibility determinations in in a particular case and here we have a finding that it would not have been obvious to try right you could have a circumstance where there was a discrete limited finite group of compounds where under chaos are if there were predictable results from that limited discrete set  compounds that you could arrive at the claim compound that's not the case here and there are no factual findings to support that in fact that this report found that the contrary that it would not have been you would not have arrived at the claim it does not in this court and certainly never applied work in that way this court should still affirm the judgement without hesitation because even under my once proposed task the factual findings that have already been pointed out by the clear here are  positive and lead to affirm it's first even starting from the precursors that have been selected by mylan and this act alone would require ignoring all of the prior art teaching away from the particular features of those precursors but the numerous compounds would be obvious and my colleague responded no you need routine experimentation to get there but in this case we have a specific factual finding from greg sleep at page eight twelve that there would not have been that this would not be a matter of routine optimization and it would have required significant guesswork and variation of parameters and so if we had a situation in which there was a ferrari or  combinations then would we be in the genus the scenes situation where or order to say that the species was not obvious you'd have to show unexpected result true i'm not i'm not sure that in that situation i don't have to show unexpected results in order for us to make the separately act i think it depends on the factual circumstances of the case and here of course we do have extensive findings of unheard of unexpected properties that the compound here that was discovered which by the way had features that the prior art pop would be detrimental to activity was hundreds up to ten thousand times active than the prior art compounds and there's no dispute about what compounds that should be compared to it and compared to those prior are compounds it was up to ten thousand times more accurate and so here we're just we're in a different universe then then that would be that that then that situation because we do not extensive findings of unexpected profit is another objective in disha of non obviousness now furthermore as to the specific changes that would be required to get from this hypothetical compound to the claimed compound again the district court made specific factual findings that are supported by the evidence that the change of these two terminal method groups to  found that the choosing the extraordinarily rare al mallets all would not have been obvious to the person of ordinary skill in the art and again that's a twenty two in the record now one of the one of the critical steps along the way here is what  is not challenge on appeal the the the point was made that the purge reference well appeared in the pfizer vs apathetic scase and also appears here but that was not mentioned is that the the  this very rare site the mallets i was not on the list of sites in f d a approved drugs as of the priority date it had been out it wasn't there and at age twenty three in the record judge sleep found that that was another reason that the sat would not be obvious chain and ignored these are of those factual findings as to get into the claim compound there would still be no reasonable expectation of success remember here the client the hypothetical compound that is the marriage of these two precursors and in fact he found a page or seventeen eighteen of the record that there was nothing to suggest that this particular combination would you look promising results and so there would be no expectation that the starting point this hypothetical compound would have an official features much le invites impermissible hindsight markers about current administration of two known substances you have to buy or attics that have known properties and you put them together and they that combination has the same properties as the two individually known compounds when you combine them and that is miles away from the facts here where you have two completely unknown precursors which had no new properties that are described in the art whatsoever and you put them together as you see in his in his long opinion he made factual findings and credibility determinations throughout this case he supported his opinion with a lengthy set of findings of fact that are fact is that predecessor compounds such as those that alone had argued were suitable for the compounds were in clinical trials and had demonstrated efficacy for treating cancer through this anti angiogenesis path so in terms of unexpected properties there really weren't one expected properties soon it was just like the items that we had identified prior art compounds we identified as potentially compounds for judge so it's evaluation in terms of the issue about the cyclic compound we believe that judge sleet committed clear error there but most experts for the school chemistry experts below this is in our opening refit page fifteen had said that a leader publication on the number of counter ions that were identified as f d a approved there was a subsequent to the birch article in anderson article that in which mallett had fallen off ok let doesn't really