the idea that you can use a discrete class a p g s two l for plastic lining compounds particularly those that had a seventeen channel structure to apply them to the skin to grow hair so that was already known in the prior art by the time the zero two nine patent came along they actually tried to claim dr johnston's compounds for a similar purpose growing here in the context of male wild well you've got a lot of on of the time though it didn't occur every single time and that's what we're trying to figure out for purposes of inherent the truth of the evidence has to show that it necessarily happens all the time when we know in the patients that actually experienced eyelash bruno's it did occur in them so even with the ts if you use it today one hundred percent of the patients don't experience a positive result but what we do know expressly not inherently expressly is that there were a percentage of patients that experienced eyelash groom when these depend on what population we're looking at because if we're looking at the population of people who used i promise necessarily only a small percentage of those will have  in only a small percentage of instances does the i drop stuff i guess get on the scale if we're looking at the population of people who use eyedrops which is then extended to the skins we're looking at much larger they say over the course of six months patients are going to put eyedrops on their eyes and some will experience eyelash growth when it came to the data that they included they included one of dr brandt patients a picture of their eyes that's it so when you look at the four zero four patent disclosure what under the view that the district court held here she basically is holding the prior art to a much higher standard of showing one hundred percent of all eyedrop patients were somehow growing eyelashes as opposed to focusing on what the relevant population which is the person of ordinary skill in the art once they see that the eyelashes were growing then there is no there's no question is the mechanism by which that occurs has to be through the skin because in fact that's what al again told the f d a is how this drug works is how it gets absorbed into the skin and then you get eyelash growth so the mechanism of how the matter processes actually working is inherent but what's expressed and that's why the the actual percentages really don't matter because you just need to show it works and one patient to know that it actually works and to have that teaching the art that it actually works that's all that that's all that you need in order to know that this is what was occurring and when you and the reason why bring up the four zero four pattern itself is that there's no example in the fo patent where they said aha we've identified a patient population or we've identified a particular methodology for applying the net a process skin where we know we're going to guarantee that you're going to actually get the eilish if they don't do that well is the case from this court that says when a prior art reference teaches that when you perform the disclose method in the prior art reference that sometimes you get a certain result that's enough for you're i think look at the versus then the new case that we cited in our brief and that instance what the court there focused on is the steps that were occurring in the prior art to and turn that around today with those the infringing steps today and even though in that instance they didn't actually report for example certain that you achieve certain standards of efficacy and efficacy was a requirement to claim because those same steps were carried out and that was the stated o that was enough to have anticipation i would also point out again that eyelash growth here in the context of the branch references is not inherent it is  we know what is inherent is it we know because of the way in which the eye drops we're now in a steward the patients who did experience the express eyelash growth it had to have contacted their skin it wouldn't work in any other way and in fact their own patent specification admits that's how they think it works and that's how they told the f d a that's the only way we think it works so you know i don't think it's that elegant can really come in and say that the prior art of the four or four or eight where you need to identify by matt approached i yeah i think that there's different issues for the night in the four for just because the scope and content of prior art does obviously change by the time we get to the four zero four patent i think on the issue that you're in a race  scope and the obviousness analysis for the o t nine patent it's absolutely relevant because when it comes to the district court secondary considerations analysis the district court did not account for the fact that all that to the extent they were offering secondary considerations it was limited to just a matter  process and not the very broad scope of the o t nine patent claims which itself with error when it comes to the forum for patent on the obviousness analysis where i think the district court again started to go astray is that she you know she well aside from the fact that she wrongly applied the conception issue which i'll get to in a moment for the forum for patents here again a lot of her concerns about the uncertainty in the ark was resolved because branch had produced increased eyelash growth in twenty five to thirty four percent of patients in the study a finding also seen in patients treated with let's head across well that study of treating patients with had a prostitute hair growth particularly eyelash growth that dr johnstone originally predicted back in one thousand nine hundred ninety seven when he filed the application which published in ninety eight because he actually said the seventeen final group of compounds my preferred compounds these are the ones that i think i prefer these are the ones that are likely to grow hair how many seventeen central group compounds are there out there that have actually well actually by the time we got to we're talking about thousands or hundreds are tens of thousands or hundreds of how many are there well i compounds that's not right now it's the it's a much broader genus there's many examples in the overnight patent but when you look at the claims themselves they're actually extraordinarily broad to me again how you get from already been tested in phase three clinical trials it was already f d a approved the only other there were only other two prostate gland in compounds for glaucoma that had already been f d a approved or were on the verge of it which is what kind of available that are seventeen final compounds are you know on the verge of being commercially available that you could actually use in dr johnson's method if you're just for example run of the mill physician so that's a discrete limited number of options but properties that were particularly suitable for growing hair and he expressly stated because i understand this is complicated i don't want to be limited to a particular mechanism of action but he expressed the reference to the seven zero eight patent which covers the matter  reasons for allowed there was nothing that taught or suggested the claimed invention that's what the reasons for loud say right i understand that your so there's a little bit of a higher burden for you given the district court already made the findings that she made so we've got clear area here we've got the very same prior art references that the p t o looked at very carefully and still the patent has survived both of those venues so i mean we're not a fact finder here right and i don't think you need to find any facts because in fact allergens own expert conceded that the person of ordinary still in the art haven't the johnston reference just stay within the four corners of the then things start getting arguably aspirational well when they start identifying oh you could modify or not modify the alpha change you could modify or not modify the omega change you unsaturated a whole bunch of carbon bottom right you'd start citing a bunch of other things these are prefer a compound no these are for a compound you know look at over here it's a certain point when a reference starts talking in that kind of generalized matter in one level it's saying everything in but maybe on another level thing not very much at all well let me address that because i think it's very important to recognize first in the context of anticipation she anticipation is not focusing on what your money what is the best compound what was your lead count pound anticipation is primarily focusing on is the disclosure there is this novel and when you look at what dr johnson was focusing on he had a preference for and this again was undisputed for p g s two alpha compounds so that fixes a large bit of pressure and there are other compounds too now but no but he said most that those are the most preferred and when it came to my sit omega chain he said i prefer the seventeen final compounds which massively starts to restrict the scope and then when it can then how many seventeen final compounds are there well in the context of the ones who have actually been used to grow hair in matter process the seventeenth i don't know know if i mean that's where you want to to get the ones that grow hair but you know before that just a generalized pool of seventeen final compounds how many are there are there there are created these unsupported proviso that their own experts said when you matter to try to carve out johnstone's compounds but they were unsuccessful in doing that because they didn't exclude all of johnstone the stand and said this is what we were conveyed to me where woodward supposedly said my idea is applying the mad across to spin to grow hair or eyelashes that he conveyed to anybody else normally if you're your conception you've got a document authored by the purported conceiver who is saying this is what's in my brain and i'm telling you that's the document that's missing there the testimony that they were gave was district court opinion it looked to me like she was looking at the brand preference as one of two proposed invalidity grounds was there was a brief below that it was a one of three as well yes grant plus and one a one nine new thing that they came up with and quite frankly they didn't even establish a trial because a lot of the documents that they're relying on it's not vandenberg own work there's multiple co authors she never testified that she herself was  controlling the third party clinicians analogous to the way the cats was controlling the students who are working in his lab and quite frankly it would have been unethical for her to be doing that in the context of a clinical trial testified which is also in the appendix and and i i'm i will get you the site which is at a a five five seven eight dr brandt testified that allegation shows him to present the data just as a sort of if you will a gesture to him and dr  allegan just chose him as a gesture to present the data in the paper so he got to be that number i'm sorry eight five five seven eight sorry about that but the examination at trial was about how she designed the clinical trials she drafted the protocol she sent her team out she drafted the informed consent forms she drafted all the the the materials if you will she sent both and then presented that data to the allegheny management committee on what happened at the clinical trials and cared to characterize the eyelash growth among other things as a key find to offer that the inventor needed to offer and there's no assumption presumption made from co authorship as was made at the p t o right in the cat's case which is what happened and then that cats was required to offer an explanation as to whether or not those individuals were were if you will co inventors of the material but the judge sent the record is without conflict that dr vandenberg was the individual who as i said designed rand did these clinical trials that's as i said the vast majority of her testimony at trial and that was the purpose so that that's the kathy issue in a nutshell and i just wanted to answer answer the last question about had we argued and we we had on the point of obviousness when it was a fair bit of a discussion from council i just wanted to note that when johnson talks of first off the visa violation theory that they infer that was not presented by an expert their expert at trial there was a different theory offered in looking at seven away first off the data dilation there is not supported by an expert testimony in the sense of offered if you will here's why some person of skill would be motivated they're relying on dr macdonald being asked on cross examination you know whether or not it said that and it does but then it goes on to say about the seven away papped it's not the same meaning he danced on johnstone and dr macdonald also pointed out the i think the good with the one twenty two ninety one twenty two ninety two if you go to the second he's talking about a speculated your honor mechanism of action that at the time of johnstone i think it was unknown  good for treating the common but it also grows hair so let's go take a look at all known compounds or any animal group that that treats glaucoma and then that's how you get t medical i guess i would i would disagree with that and why and and for good three basic reasons one of the one the district court found which is that the man approached at the time of johnson was known to have a different pharmacology than it is obvious once you have one prostate when and this is an enormous class you can see in the description of to describe this aspirational the amount of possible changes that that jonson to just and i agree when one suggests everything one is really suggesting not very much at all so if we find that there's motivation to combine with the joseph and a layperson would we have to reverse no i mean again if you're well and dr macdonald talked about again the differences between animate and unique pharmacology that those amec compounds have so it it you know in essence you'd be sort of saying ok this teaches go to these other if that's what you were to find go to this other patent look at it and a lot of compounds you'd be saying one pharmacology from the johnson path and i'm going to pick a different from a college from the  we found no one here in anticipation because i dropped treatment will certainly get stuff in the eyelid at some some of the time and what doesn't the side effect of the treatment entail inhere contact the scan that that is not something that is necessarily going to occur described it of course find that it met and i think that's a fair assessment fair summary if you will  is in the four zero four patch and the reference is to the fact that when you get in on the i drop those to the it goes to the list and it causes character right so it's i know everybody tries to get it both ways but it seems like at least in this particular instance you're trying to sell i don't i don't i'm not trying to say your honor that the judge is finding that it may get on the skin is somehow wrong i don't i'm not i'm not fighting that or trying to say that that doesn't occur but in the remember inheritance a patient is about pulling the policy behind him her into specialty is about pulling something from the prior art right that was in fact there that we know was there in an appliance and if it gets on the skin that it will grow here and that's the lesson of the if you will the looming and clinical trials that not everyone through here right and in fact in a lot every i mean one hundred percent right anything actually and if that's necessary for inherent anticipation you know i doubt is a great question i had but i don't think you need to reach that here because the percentages are far lower than that i mean what we're talking about at the if you want to use the wiping any excess onto the that's what was said it wasn't simply the administration i dropped that said it overflowed and wiped under the skin again doctor that's actually what that example s everybody that it works every single time the every single person the to the and i apologize we did leave this out of the appendix dr betting feld testified that as to the you have to remember that remember the v hi i don't know if we put we did we should if we didn't put the color pictures into the brief there in the appendix it showed what happens when you put an eye dropper into the  to the extent that contacted the skin it was a sort of you will a random display of the green dye that you see you see splatter if you will some patients you'll see more than others other percent if you look at the percentages in her opinion there are quite low she was looking at certain documents and we see from the clinical trials what the numbers actually were depending anywhere from twenty five to thirty five to forty inventor process from step one what we are missing and why we are hearing arguments we don't have dr woodward writing down i had the idea to put mattresses against that that's not written down the corroboration goes he conceived that it may be possible that you could apply eyelashes fusing that approach to the skin moving forward through the clinical trials that's all documented and then and remember the rule of reason is what the the law is here explicitly testified that she did not conceive applying to the skint and she testified and the judge credited and found that she was instructed by her supervisor to go to the patent attorney to discuss this application of them out across to the skin some wire between september of two thousand and march two thousand and one and that don't have any e mails or meeting planners or notes or even testimony from the in house patent attorney to sort of you know lockdown that that meeting actually occurred all we have is her testimony and that's what we have trials that's where they're taking the i drive putting it on the m r i and she's saying to talk about the side effects that is not what they're saying the claims require which is application to skin to grow hair and elements jolly there was an e mail that was written by the person who needed to have this conception corroborate it to other members of the team counsel just admitted they don't have that document woodward admitted he doesn't have that document and particularly here when that's the key thing that they're trying to argue distinguishes the prior art that simply not the that they really don't have the corroboration for that i did want to respond to a couple  points about you know johnstone disclosing all of these compounds i would notify before you get to johnston was important point if we were to conclude branches prior art do we have to you know if we disagree about the other grounds for invalidity would we have to remain and that issue back to the district court to resolve the whole question of motivation a combined grant with a one nine or and facts that have been found and some of the admitted facts in the record this court can certainly hold the claims invalid francis a patient in a brand without having a reman to the district court when it comes to the combination for example of brant plus johnstone i think that there are again undisputed facts in the record some of them which came from their own experts that establish facts that can be used to to avoid it and then when it comes to the secondary considerations there's multiple problems with their secondary considerations evidence notably first while they the district court talked about some secondary considerations she never had any nexus discussion tying them to one patent versus the other if they want to ti to the other two nine it can apply to four o four it apply the for a for the zero to nine with a blocking patent we know you have your briefing on that go right to johnson yet so when it comes to johnstone and this actually but this does get to one of the unexpected results arguments they didn't have any evidence showing that the seventeen final compounds that any of them are going to be failures at growing hair the two supported prost equation saliers that they put in front of the district court were compounds that were not johnstone's and but i think he recognizes there are other compounds in the seven zero eight patent that he thought might be useful pieces and by the way i'm also going to prefer these other types that have this particular type of omega chain as well so i don't think he's and inside then when he goes to seven oh wait you said in the seven a way he really liked within that big gene of a smaller genus of compounds and the seven no way and it's it's usually is why he did you did caution us but you know i also like some of these other ones from the seven zero eight and a couple of other patents and that's fine because this court's precedent whether you're talking about anticipation or obviousness the fact that you said here's one that i really prefer and here's one that maybe i don't prefer as much that's not a teaching a way when you're teaching a way you're actually saying this is inoperative this won't work this is still a teaching narrowing but ultimately if they want to try to suggest that there's something special about the matter processes the seventeenth in this particular better process they can funnel when it comes to what's the comparison you do to the posters prior art it has to be