and this of course the district court accomplished by not following the law after men or mara where all of the evidence has to be viewed in the light most favorable to the nonmoving party i e had gone to glaxo smith kline to eliminate any other possible causes for doctors to be perscribe ing carpet a lot to treat congestive heart failure can i i mean that's probably a major portion of this case and it's very much and you can see i think you would concede it's very much a circumstantial case your view is that applying that and inferences towards your side you should approach the jury absolutely as i understand what the district courts view it was and obviously it's an experience district court judge who sat through a lot of trials and a lot of jury trials even if we count of certain nobody's disputing circumstantial evidence it's but this is not a case like a criminal case where there's no eyewitness and so we have to realize that we usually see it come up in our inequitable conduct cases where there's no smoking gun no admission by the doctor having said he read the label even though that turned out not to but in this case based on the circumstantial evidence i think with the district court was concluding was that all the circumstantial evidence or what the circumstantial evidence and the inferences largely went against you and that was for several reasons because your doctor testimony was so he lied on a whole bunch of other stuff a side of anything to have a do your to the testimony was it didn't matter what temple was doing it was that he didn't prescribe anything with regard to tell him it was the pharmacies that did it he even had no idea it was going to achieve mirek which generic if we go to so i think judge starr look chief judge start looking at that said all of the evidence is that exist point the opposite so why don't you response and i will your honor to be cardiovascular drug couric which led dr mccullough to believe in this is direct evidence not circumstantial that ted i had been approved for all uses because they previously said they got an approval for all use of ted they did nothing to disabuse him of that and in fact actually in their product catalogues which are regulatory experts said would be viewed as a statement that they had been approved for all uses they directly compared themselves their generic target  have a sells to are as we talked about the middlemen the pharmacies and whoever is in the supply chain so teven doesn't give this catalogue to doctors do they and he says i think it does end up with doctors this looks like a circular you know product catalogs you got it off and the question is you can get as directed to doctors answer i think it clearly could have been seen by doctors so you were testifying a section given to doctors you just don't know i don't know that i think it's possible that's the testimony i was referring to one cap and then on top of that your honor there is and i'm looking for my module on the phone label there is an actual book that tempest sends directly to doctors and in fact it says dear health care provider and if we look at appendix thank you for what's the date on the book that they're sending it's a doctor's we have two thousand and eleven and we have another one i think in two thousand and twelve so that's the full label which by the way even the judge found that that was not me do so when you had it full label teaching the doctor how to practice the the method yes but that's confusing to me in reviewing this whole case because normally my own personal you would come to this thinking the maybe there's some distinction to be drawn between the skinny label on the fully well what having read as much as i have in the head that's not the case the way the case ran right it was it your view that when you say the label matters but you didn't draw this you were basing your case on the distinction if not you would have lost the st part and you want to write a correct what we said is let's have a partial label that the partial label in and of itself contained enough information just like in astra zeneca to induce doctors to infringe but was there any please tell me the testimony that the doctors did use that label this we're talking skinny people know that the doctors relied on the skinny label in their prescribe being the drug that they prescribe we have no direct testimony we have circumstantial evidence again the so this is why i started the circumstantial evidence that i know about is really mcculloch was the main doctor here and he's talking about what he knew but most compellingly and i'll find it in a minute that the automat no which when the generics launched you switched your patients over right to the generic answer no i didn't actively switch i continued to prescribe or it was automatically switched and he goes on to say i did nothing different the pharmacies i don't know which generic they prescribed it to but whatever it is they're state law there's pharmacy practices and they'll take the same prescription that i had before and after their patent which was two thousand and eight after the generics law but right i said testimony so he says he didn't read it he didn't read it this is where he says explicitly not withstanding you're calling him back to say that he read the label that he didn't read the label and he says no i didn't why not i just assumed they were the s yet so correct but here is what happened we need to back up because he didn't read it but he didn't read i'm sorry i'll let you do this but ok he didn't read the generically isn't it kind of on him i mean the generic label there were three  drug historically and only one of them was just part the label didn't cover congestive heart failure somewhere else he also says well if i had read the label i wouldn't prescribe it because it was missing too much information minor he said you didn't read the generic label because teather had said prescribe our drug just like couric and what a push of the district court judge was conflating teaching a method of it's only when you have an unlicensed sale that you now get into infringement the district or seem to think that g s k it somehow induced doctors to infringe of course they couldn't they wouldn't they would never say and by the way use generic just turning us to because the answer was he says i assumed they were the same and they answered the quite next question your question you made what made you assume that and the answer is well we have lots of information as we have gone over that indicated that you know it was a complete replacement the that it that in fact the two the drug was the same the drug was just right i mean the pattern was off the comp the drug was to say that's a correct assumption and all the information regarding it was the same i don't know what that me but so what does that mean what that means is what dr mccullough was referring to when he said we've already gone over it is that he had been led to believe in this is direct two thousand and seven so that was before the patent we're talking about in this case was even reissued right put those press releases up on their website they're still there today and so and dr is there a evidence of that in this record that was in front of the jury there was evidence that the way that the that teleport the press releases up on the website you know there is not a child bearing obviously we had to check before we wrote the briefs but we couldn't check at that point in time they are they specifically objected in their brief your citation and said that the jury had never been told that these things were still on the web site had continued to be on the website or were on the website two thousand they were put on the website certainly in two thousand and seven and dr mccullough testified that he didn't look at and also separate not wet and that wasn't the discussion there the download of whatever was on the website was a two thousand and fifteen day so i didn't see any testimony about what he saw our in two thousand and seven is as judge moore said they objected about us saying that it was on the website and at the trial what we introduced was a screenshot from the web site from two thousand and fifteen and so they object and said well it doesn't show  specifically understand what you're and six that's that we i just want to make sure i'm looking at the same thing you're relying on the record for what you are on and you didn't present any evidence to the story about the website in two thousand and seven did you you know i can't recall i went over quite a bit well this is the only picture of the web site you put up right i believe that's correct the only picture of the website is from april th t right you don't know when it was edited before that do you answer no i don't know how long that was up before two thousand and fifteen question right they may not have had a website in two thousand and seven right answer they may or may not have you don't know i don't know  so what are we supposed to take away from what we're supposed to take away from it in this answer judge moore's question after trial the screenshot was from two thousand and fifteen that that two thousand and seven press release with still on the website as of two thousand and thirteen and i didn't received their final approval of this is what we're talking about the website and this wasn't your witness's testimony about the website grat knowing whether they even had a website to thought right he certainly had to concede that but now a number called the jury heard all of this and they chose to find that we met our burden and were instructed by the court as to what they needed to find in order to find that we met him for it so while the district court may have found dr mccullough less than credible that's not what one does in a jane which is to weigh the evidence but more importantly in this is uncontested dr mccullough said that had he known during the partial able period that heather had not been approved for all indications and had been led to reissue with through the limitations right so rex that the infringement here is only with respect it's a method of you this is a method used you should come out and he's already spotted right correct and so dispense as written just be technical answer yes unless the doctor feel strongly questioned writes brand only answer yes so tell him knew that if the doctor wrote d a w they were going to get that say j f k was going to get that it wasn't i mean as dr macculloch said the pharmacy switched it to a generic and he has no idea where the worst temper of the another generic correct unless he wrote dispensed is written so my point is not that that have a versus another generic mean to have  forty five percent of the market the point isn't that kevin versus another generic get the sale the point is g s pay would get the sale if the doctors had not been misled by tab a into believing that it had been agree with that let me ask you the f d a press release comes out like one day before tempus press release in two thousand and seven now all of this press release step to pretty occurs before the patent even comes out of three ish so in order to even be considered as it didn't refer just have a specifically referred to fourteen generics that have this but all of the stuff that you're concerned about a b related corporate all the stuff that's all in the f d a press release to write i don't recall i'd have to look at it but i must say that tesla continued their marketing very extensive marketing efforts well into after the patent issues but there's there's another point i would like to get x i'm concerned that where as we are running out of  partially the partial label itself following that the astra zeneca opinion contains enough information to induce doctors to practice the claimed method why do you need it  we can't we absolutely can but we also do have the partial label and we can't forget that and this isn't a case like to k to where we're talking about oh it doesn't really it right this is that the partial label one point one is heart failure so tel carve that out now remember up until two weeks before launch they intended to capture the home market they intended to capture everything including sales of congestive heart failure then they found out the other generics when to do a carve out and get rid of one dollar so they did industry use our junior card middle just like core it just like core it means use it to treat patients with congestive heart failure so we have all of those together and then we get to the full label which of course is an exact copy of ours we should have been court you heard my friend on the other side say i think five times that tesco instructed doctors to use its generic product just like cory that statement does not appear anywhere in the record it doesn't appear in the materials that my friend yes that's not what any of the materials of the records say i mean the let me start with the press releases from before the before the patented issue even they don't say use just like origami my friend is drawing inference from the two thousand and four press release in which at the time to have it said that when it washed in attended a launch with a label for heart failure or he didn't do that and wait so hold on the press release is on page six th rated to be a b rated generic equivalent but to be any religion or which is the same language that f d a uses it would be reading means that it has been proven through studies to be therapeutically equivalent meaning that it behaves the same way in the body within certain tolerances and they say it's the generic equivalent so that it goes all out and so is off and are indicated for treatment of heart failure and hypertension hypertension was the earlier use heart failure is the new claim your honor first of all they didn't he testified generally about press releases but not about them and i want to make sure i understand your question private doctors receive press releases and rate them from generic press releases generally from the from generics and from the f d a in order to and he said this is what he said in order to destroy men when a product is going generic that's right what he didn't say is that they used press releases to determine what indeed how to prescribe their medications you know or what what prescriptions to wri letting the world know that you did receive this letting the world know that there is a new generic that can be st griped for all of the identical uses that couric has been a new year on because this is two thousand and four and the topic was not launching its product this is three years before attempting to seek and expect final approval in two thousand and seven of a generic version of coreg which will we expect it to be approved for all the same uses yes at the time that's what they expected so this is what they've informed doctors if i except d is testimony which since this is a jury verdict i have to do so by except not going to hell is testimony that doctors get releases and read releases in two thousand and four doctors would have gotten this release according to  testimony and read it according to his testimony doctors also would have received in two thousand and seven the f d a press release at appendix seven thousand one hundred and sixteen which explained that the generics were not being approved for all of the indications in the label of the brand and he and dr mccollum also said that if you'd read the label at that time the carved out label he then he would have concluded that it was as you said missing too much information to prescribe it for to do prescribed have a generic for that so in two thousand articulated busy expressly what uses in the cardiovascular family it could be used for in two thousand for heart failure as well as hypertension now they get a little bit more ambiguous but they still say cardiovascular agent couric so your language was acquittal and can be used as an equivalent for the cardio about skill or agent couric how did this ringback not continue to potentially inform doctors that this drug could be a weight on that phrase than your in your question does but so in conjunction with this press release well it certainly could be interpreted by someone so it couldn't congestive heart failure be understood to be a cardiovascular condition i think that i think the answer that's got to be yes sure but i mean but for the other side to place any reliance on this they don't just have heart failure could be understood to be a cardiovascular condition and when someone says you can use my cardiovascular agent your your point is lost i mean this is a jury trial the jury had all this in front of it it got to make a fact finding we don't step in the shoes of the jury indeed not your honor but what you take is all of the evidence all of the evidence including the admissions made by g s k and all of the failures of proof that the district court pointed out so g s k had said to the district court in trial that it would recall the doctor to josh to testify that  s present enough evidence when presented to a jury that could have sufficed even if the label had never said heart failure let never at any point i don't care what the skinny label even says ok i think the releases are ted which talented it's a b rating which you and i both agreed means there repeatedly equivalent without condition without no no mentation that i didn't say that without condition your honor because that's not correct it's if you read it as you certainly could want as labeled mccollough that nobody's prescribing behavior changed when the label was changed in two thousand and eleven because the doctors had had the benefit of not only ten years with g s case product which had become the standard of care and dr agreed that the american college of cardiology guidelines and the other professional i'm quite frankly baffled i can't imagine a stronger case for induced infringement you've got a label telling people to admit it telling doctors to give it for congestive heart failure you've got press releases by the company repeatedly saying either get it for heart failure or it's equivalent to things you should give for heart failure you've got product catalogues that say we are ab rated with couric busy which means we are equivalent i can't for the life and he was instructed from both periods that it had to that it had to establish the tema as opposed to other factors as the language of the jury instruction had caused the in the infringing behavior by the doctors and the evidence of this for the full label period strong case because it was a b rated everyone concedes both sides agree and you know ms brooks conceded this in her argument to the district court in jame all five times that launching with just hypertension and certainly will just for hypertension would not be inducing would not violate anything and the e b u redid language would have been exactly the same for products labeled for hypertension they would still win he's a she said this is  question of fact so the question of fact that went to the jury is is there inducement i think the jury could have concluded based on the releases alone it does not matter to me that she argued her position poorly to the district court judge in a legal discussion so because this is a fa and all of that would have been exactly the same under and under any label and some press releases aside for a moment now i understand why that's different but all of the evidence about that actually is from the period of time when the patent was in force all of that referring to a b rated generic equivalents all of that would've been exactly the same under in under a label a partial label that everyone agreed is not inducing enough and that all of the same  only it would have the only indication in that label would have been hypertension you know which everything else would have been carved out but you guys can all agree to that but that's not the law and agreed at once not the one you're on you can you can agree if you want that if the label all only says the word hypertension not only hypertension that maybe that would amounted to inducement but that's not the law the simple of the law is inducement can be determined based on circumstantial evidence which can go to a jury and if there was no label or i just that hypertension but yet all of the press releases and tell us clearly expressed intent was to tell the world i hope you can also use it for heart failure it could have been enough even if the label just said the word hypertension as i said your honor i agree that the press releases are different  d at all when there's product catalogs that come out and then advertising there after talking about how we're a b rated and were a generic  well why isn't that a no the if you read it is not enough i think for the reasons that i've been trying to give that any therapeutically equivalent product with whether or not anyone is trying to get it to be marketed for the car got used that's still to be nothing else wouldn't be enough maybe a jury would reject that that would of course be up to a jury not up to me i don't think so you're i don't think you would be sufficient for i don't think a reasonable jury with confronted only with a skinny label and maybe reading could read could return every that would not be within the bounds of what a  reasonable juror could do with nothing else now i just can't say i think decided to put on a case that was not focused just on that they decided to go it to add all these extremes of things and i think your questions you know appropriately focus on assumed they'd shown that but your argument as i understand it is g s k would not captured the sales they would have gone to other generics not to have a it's just the had been pulled off the market but if the argument is that those other generics would have been infringing alternatives when they were being prescribed for c h f then how how is that relevant underpinned do it so under a green processing you look at what what steps can be taken to avoid infringement and the step by step that i think as we as your i've been talking about here are that every every one of those generics can do to an avoid infringement is simply to launch with a hypertension only consequence all of the sales for went where it went to doctor writes either corridor or carville all on a prescription pad and i go to the pharmacy under generic substitution laws and those would all have been filled by heart failure isn't that in direct infringement an act of direct infringement so just pay would be in touch yes or no question if they have a patent exclusive rights when the use of this drug for congestive heart failure if a doctor then prescribe for congestive heart failure and if i generic is used to fill their prescription that amounts to infringement so every sale by the generic for that use amounts to infringement so those are all infringing sales under pa those are not to be considered when you're assessing lost profits look was the fact that g s k only has a small percentage of this market compared to one hundred percent and i mean for those seat at each f use obviously all the other uses are a lot more long since off so the fact they only have a small percentage because eight or thirteen generics infringe their patent i don't see how in the world the argument by you could be other people were infringing too so we shouldn't be liable to them for their lost sales b couple of points there are so that you ask is it would be infringing sale some of the doctor is committing an act of infringement by writing a prescription but of course the doctor isn't selling the right and so the question is are any of those sales caused by inducement and is there in order to avoid overcompensating g s k so under great grain processing elevator color in the overcompensated when you have to pay them one hundred percent of their lost profits on only the drugs you so wrongly how are they overcompensate their overcompensated your honor because the is the statute says they are entitled to compensation actually the infringing use correct as as defined by and we went further we then have penned it in a one million you appeal that objection yes yes and yes so we moved for summary judgment in order to have this discussion that we are you and i are having in order that that could be hashed out before the jury threw at me through computing experts the district court excluded our yes yes to all of to all of your questions but i understood your cross appeal to be that the nine the infringing sales by generics somehow don't affect less profits analysis but for the circumstance that labeling your product as you know as the generic state either during the partial of period order in the full able period is infringing and under green processing what you look to is wet is what steps the generics could have taken to hear that the accused infringer could be taken to avoid infringement and simply by changing a label and we're not just talking about temp we're talking literally about any one of the the generics that launched during this to cause the generic to be substituted or whether the active infringement is ready by the company that is selling it encouraging people to use it for this purpose all of those amount to acts of infringement so none of them should be curbed adult when you're considering what the pool is for damages i thought i don't understand i really your argument boils down to if you want jare other generics who are also infringing you're saying they would have gotten the sales not i don't doubt that that's what it with what would have happened in the world but all of those are in strengthening sales so they're not relevant to lost profits they're not infringing to sell your art because it has a sale no one is being sued for infringing for selling or offering to sell you know to use the words of the pattern that the act of infringement is to practicing steps of the method so there is no there is not an infringing sale and then the question is whether the sellers of the product that wind up being administered to the patient whether they are complicit in the inference in the infringement either be contributory infringement which we know doesn't work here because only only seventeen percent at the at the maximum of uses are infringing or through inducement and so if you have a when you haven't you have generics on the market that have not been accused of inducement and didn't issue press releases or anything of that sort but that's the book for world that we wanted to prove to the jury existed and we were not allowed to do that because of the perception and we had it as it as you're asking me about that every issue is the district court judge had the same misperception that i do about what says that's why we weren't allowed to do it right the district court relied exclusively on andrew and what we know we are asking the court to look to its own cases including bank that say that and do it is not the beginning and end of the analysis i think it's thank yes question all right and it would have said that cory used a be rated right answer yes question and it's also true that at website would not have said the core of our carbon law was not indicated pretty just a part failure answer that was not one of the improved indications in two thousand and seven question but the website did not say that did it answer it did not the jury heard that testimony they heard the testimony of dr letson yes but i i'm sorry but i'm going to derail you because you told me that there was a snapshot from two thousand and fifteen that was presented to the jury that indicated these releases that's what we're talking about we're still on the temple website at least as of two thousand and fifteen and were you mistaken did i misunderstand you know i'm not mistaken we're still looking for it your honor because the cross that dr mccullough was well look this snapshot was from two thousand and fifteen how do you know it hasn't been edited since the press release came out in two thousand and seven so we are continuing to look for that  said that you were unequivocal in misspeaking or wrong when you said i know that i'm not because we in our brief show the court that obviously is not the trial record in our brief we show the court that those  website and we cite we add a link to our brief to that effect so that or show the jury vote we showed the jury in two thousand and fifteen and we're looking for that cite your honor and in our brief but show this court that they're still on the website as at the time of the writing letson testify to ten by forty five does the f d a take any positions about product comparisons in answer yes the agency's general position is that if you compare one product to another by name you are implying the use of the product the jury also answer we are completely reliant on what they provide to us that's what the jury heard the jury also heard at hennig's eleven thousand six hundred and fifty six as far as the two thousand and four press release i said we don't want to reinvent the wheel here did you seen his press release right answer yes because doctors question because doctors care when generics get launched because it saves their patients money right answer yes i agree with that jury heard all of that hence why they return the verdict they get counseled and switches to the full a ball and the explanation for why that's not inducing is because to have its market share did not change when they went to full label in two thousand and eleven that actually just shows you the tega had already induced doctors thousand and seven on cross and he's asked and you think on one thousand six hundred and seventy and you think the doctors would have seen this press release right answer yes because doctors care when generics get launched because it saves their patients money right answer yes i agree with that and so even on cross he said doctors look at press releases including him to just address the last comment by counsel as to why to have his market share did not increase when it went full label in two thousand and eleven that is proof actually that