this point on the other grounds of he'll left for teaching way was that he would be expected there to be increased inside events with a higher concentration but again that's not a teaching a way higher concentration everyone agreed was going to be stronger drugs would be more hope and zat would come with an increase in science that's of training it's not a teaching way it's a what does that mean that we got the side effects until someone had to make it have to be so intolerable that you couldn't use it as an act medicine but it was if you were teaching away every time you had increased side effects then you the way it's got after the two to be such that it would be intolerable and we don't have it here and moreover on the facts of this case there was plenty of henry between the it and all these higher dosages of drugs while they were irritating were currently available products that were being prescribed for those patients that had severe acne and the regulars here sure that there was plenty of room clinical experience and the commercial experience with examinations a very mild drug it had there were it was it has affected the lower concentrations of the other drugs but it was a very mild  it was a forty three percent increase in strength and they're going to show that that's not a difference in the kind that's just a difference in degree the pharmaceutical cases have said if you don't have a difference in kind look you've got a different kind of biological for the what the kids do stand for the proposition is that in order to make this a battle difference you have to have a difference in kind the supreme court said and eight hundred seventy four and this court has said that many times i have already published almost all its clinical work that is done with the data before it started testing on the point three percent concentration on active patients so they didn't have anything confidential before they started their testing that side effect that has meaning and that is predictive it's not a guarantee of course but it's enough to establish a reasonable expectation of in this court case for what he say about the court's treatment  clearly get too much into that last what is your view of the iron grip a lot of cases which state and can disagree with my reading that if there is a if the prior art teachers are brave and the claimed invention is within that range as it is here where there's a very substantial body of additional experience about the technology here seventeen years worth of experience which in the ever again indicates that there was in fact no motivation to do that to people who had been discouraged cited in cycles as a pretty but none brief and the problem is that when you allowed your analysis to start with a presumptive finding of obviousness without looking at all of the evidence as soon as there's more evidence the la and what it does is it creates the problem of setting that presumption in concrete and measuring the rest of the evidence only for its not can value it takes on a life of its own it has greater significance than the evidence that justifies it the test  optimal i think he uses that word quite frequently is it your view that that's the appropriate test for teaching the way that it was here because it's clear what they meant by out of the  article some ten page leaders pointed out that a point three percent dose was among the generals that was using the clinical testing on the backs of normal patients and that jones had been rejected for cosmetic purposes and there are many many of them at a dose between the d m is hundred full range and all that tells you is that a dose for all of those molecules can be found for those conditions somewhere within that characterization i mean clear clear clearly i think everyone agrees if it's intolerable irritability that's sufficient what is your characterization of what would be sufficient if the fear was that the tolerability issues percent is just not strong enough right but the product and importantly they are not one person in that group in fact nobody in the ten years between one thousand nine hundred one and two thousand and two ever suggested increasing the dose of i mean the point we've got to get this is one of those cases where it's important to let the evidence tell us what the cerise and not to have some hunch of what we think it might be which is really the problem the cycle that supreme is trying to address and the solution is retraced the path of the obvious misjudgment by considering the totality of the triune and when you do that here the evidence shows that people of ordinary skill in the art would have been concerned about significant increases in tolerability setting aside that evidence was there any evidence that somebody actually did tests at point three and sure enough it was terribly injury is to the patients when the evidence first  advocacy and safety that point three spin considered and it's been rejected and used only in conditions much older people with decades of sun exposure where the literature is right with teachings that those people are not nearly as sensitive to this retina where your cage that's the only places use and the you've got the focus again from why everybody was trying to minimize side effects not increased there were to believe that there was nothing through still to be done by going there to the extent that disclosure range might make obvious the selection of an optimal value within the range which is what a lot of these cases say like peterson for example the ground had already been plowed and that the terminations of indeed that it was point one and that there was nothing more fruitful to be obtained by looking at anything else that was not motivation to begin with by the time we get to two thousand and two which is the was labeled as not on here and there was no difference between those two point three was labeled as slightly hurt and we already know some for sure ninety ninety one to even though there was no difference was detected between point zero three and point one in