cases impacts laboratories and that's presented thank you for honour's please the court this is a case in which the district court did conduct an analysis looked at the prior art looked at the differences between the priority claimed invention and found that every single element of every claim was found in the prior art that none of those limitations none of those requirements created and an obvious subject matter except one those findings with respect to all those other claim elements are not under consideration they have not been challenged by either party in this case the one claim element that the district court found to allegedly be missing from the prior art as characterized by the district top court is a teaching  for this product lending authenticity to the willies so let me try to address a couple of those issues first of all your honor with respect to unexpected results the district court specifically held there were no one expected results in this case that was a ruling again that's not challenged by the district court with respect to your question about should vote should vote actually and i think that's a fog created by the panties in this case  chuvalo actually only identifies three specific compounds for use in his formulation sex and one of those compounds are described in one sentence the other two compounds are and i can point to the record tripping those are the and those are the only two compounds that show vote teaches as the active in treating migraine that's a trial court and there are a lot of that decision is erroneous for a couple of reasons number one the that should both says nothing and the basis for that is supposedly this active metabolite active a tablet is not mentioned at all use oral dosage forms sure vote says that an oral dosage form has a disadvantage because the active ingredient degrades i e becomes not useful in the gut and therefore i've made formulations that are specifically designed to be useful out other than oral pharyngeal buccal and nasal and of those three should both says nasal is preferred in fact nasal is in the title of schivo so a person skilled in the art and i would cite the merck case for this your honor which says you can have a teaching away before you can make an a proper argument for teaching away when the reference that allegedly teaches away plainly an unequivocal e teaches toward the invention in essence i'm suppose just for purposes of this question that relatively high standard of teaching the way isn't met here correct the district court formulated its decision in i think first second and third and at least i think a third says no motivation and no reasonable expectation of success and the underlying core logic was that people understood from the prior art that for tristan it was in fact the metabolite that was doing most of the work and therefore even though it's listed and quite a long that record is clear and unequivocal that the level of active metabolite appears in the blood using nasal spray at the same level as oral after three hours so there is not a question that the metabolite would not end up in the user's body right the time time it would take three says yes it would take three hours but it did two things number one motivation to combine doesn't apply here because we're not combining two references should voters one reference all of the motivation cases relate to a motivation to take the teaching when one reference or put it with another there are some cases where the motivations the combined has to do with finding something that's not in the reference and not using another reference but the level of skill to say it would be motivated to put that missing element in we have no missing element here every wall both nasal spray tans only trip than are in the case  obvious for a person skilled in the art to combine and ingredient from one long list or an element if you want to call that an element from one long list with an element from another long list it portably that does not mean it's per se not obvious ok it's prima facia obvious so if i have a long list it's one hundred ingredients and let's assume i had a list of one hundred applications which i don't there are only three applications dosage method methods and survived it's prima facia obvious to pick one from that list of three and one from that list let's say it's one hundred that's prima facia obvious i don't need to show a motivation to combine what i do that's your you're right you're on and that was kind of the point i was trying to make earlier by saying those two things are mentioned in the single paragraph as being the preferred the active ingredients for migraine relief and there's only those two that are suggested for that  the other i think an important point to make here iran or is that it got this goes back to the teaching away question if it and that can apply as well because the key to it even if you were to assume all that the factual determination that the judge made were were correct when in fact we think they're clearly erroneous relating to this metabolite issue you would come to the conclusion that at most the the use of the nasal spray would be let's say expected to have a disadvantage of getting the metabolite into the bloodstream later the reason that can't be a teaching away is because the claim allows vast that is within the scope of the claim why the if we're not talking about teaching the way we're talking about motivation the motive we don't need a motivation here number one because there's a prima facia obviousness and number two is judged like said we have the motivation number one ensure vote where he says in particular these are the two drugs for relieving migraines and he clearly points to nasal is the preferred way of administering that drug the no i don't think we did because that was addressing that an error in the our citation of those references explaining to the judge that there was motivation in the prior art to combine nasal spray with  not finding the motivation was factually wrong the judge said there would be no motivation because there's nothing in the prior art that shows on the trip and works ok that was the basis for the judge's conclusion and the only thing the judge  cited for that was two experts who said they couldn't recall on the stand which items of prior art disclosed the the working of zouma trip than as a migraine relief agency and  don't know i disagree around him because then let me tell you why because in the obviousness context i think you look at the prior art as a whole that's with the case law teaches you look at the prior art as a whole and here the only real meaningful motivation to make a nasal and a nasal spray why can't that be part of the starting point for an obvious this analysis without worrying about motivation to combine those things when the combinations already lost because i think that one of the ordinary skill in the art look at the prior art as a would include the teaching about the more potent metabolite so that would discourage you from moving forward number one number two you also fraud already wired me a motivation because one of ordinary skill actually considers the art as a whole and evaluates that statement about whether or not it anti migraine active substances not you know such as a trip then there was in the record an enormous number of triptans disclosed in the prior art this and they say such as this is tough rob it's it's like there's no question about the words sumatriptan i mean i'm sorry the word zombie trippin is in a patent that has three different routes of administration no question about that i get that but here the judge looked at this specifically and said to and came to the conclusion have the key factual finding i think is that he's this district court found that would be absolutely counterintuitive to make a nasal spray when you have an active metabolite which is more potent than the drug itself but i do make a finding of the issue we've been talking about just now as you know as to whether the are is almost a combination he did because what he said is that even though it's on this long list of drugs he talked about you about even though it's on this long list of drugs and there's an enormous number of choices what the district court found was a skilled artist and would look to any other triptans this is a finding at page fifty eight of the court's opinion is skilled or some a look to any other triptans before looking to any attention to that very significant evidence that that would provide the motivation to combine all of krypton within a nasal spray what's your response to that i disagree that the district court didn't look at that your honor but also the record you never discussed in the opinion at all there is that correct no that's not correct and where did you discuss in the end he just he discussed the fact that there was a balancing your honor where did he remember whether he said he said zuma is on the trip and would solve the the the throw up problem what he did so he talked about the only in forty years of migraine treatment despite this this insane abuse you talked about to try to get faster acting treatment from nasal sprays only to nasal sprays in the history even to the stage in the history of migraine treatments have been were created before and on the trip and one of which caused throw out your honor  a huge class of attention compound with no i did no reference about which ones are more likely to successful than the other so it's like the case that you reference before judge like in just like survival is a large class of compounds with no direction o which ones with the successful wouldn't be successful but just to give you a couple things about banks that are in robertson robertson here's what it says about nasal sprays it says they have a large genus of compounds in dolls and it says you can use these with painkiller teaches is that there's a large class of compounds that have absorption problems and so what they suggest is their invention is to create a chemical complex a sort of a new company complex as a cage around the active ingredient to try to increase absorption and so that's what teaches that there's problems with trying to use these these compounds in this long list which would include soma tripped and because they have absorption problems and that's why they were never a litigator relied on below because substitution is and the substitution would include attaching the chemical compound issue to the chemical complex helped create the formulation but the point is that none of this is in the record because they didn't rely on painkiller and roberts and below and  required but not to make not as a basis for an invalid any argument that they never read or if you read their opening brief where they have reference to both of these that's how they are going to blow just as background information and they never said hey directly on point what the court said was skilled artisan would look to any other triptans so that if they had chevelle in front of them they would choose any other trip than before looking at zama trip then because you would you would lose the a factor of this more potent tablet the one that's today times more potent in the insight case they have a very similar circumstance what we think that when that is doing is the short of the finding the problem with hindsight d what happened in insight for santos in two thousand and fifteen is they the ledge infringer just assumed away the problem by assuming the active ingredient would be the one to choose and the district court in this court said defining the problem in terms of its solution reveals improper hindsight that casey talked about converting an oral medicate medication into a topical treatment for conjunctive vitus and the a related compound had been converted from an oral medication into a topical treatment the world health organization had suggested using that specific compound as a topical treatment for a different eye infection what did the court district court do your honour's looked at the characteristics of the drug itself didn't just stop at the surface looked at the characteristics of the drug itself and the district court found an insight that it would be a poor choice and not a good candidate for topical treatment this court upheld that ruling for a lack of clear error that's what our judge did our judge didn't stop at the surface the one snippet in schivo and the one snippet in any for any reference that the our judge dug down and set made factual findings there was no reasonable problem which had been tried and failed before the only other trip that had been used actually made the knowledge of problem worse not better and let me just i see my time's running out i just want to make one last point i find that there was that the district court erred in finding no motivation the proper remedy here would be to remand the case for a finding on whether or not there were surprising results to uphold the validity of the  because the only reason the district court did not address or surprising results arguments is because he said we were just reframing our lack of motivation or human so he found lack of motivation that was going up the whole of the patent but if you were to say there was a motivation then the proper thing would be to go back to the district court and now that you would surprising results because it's all the same evidence because we think this was a truly surprising and the very first fast acting migraine nasal spray in the history of migraine medicine and that whatever they paid all the rest of that agreement has nothing to do with the patents because they sold the business they sold the brand impact his own testimony was that they were buying a strong brand has nothing to do with they were buying an ongoing business and there's no evidence to the contrary there's not a single shred of evidence that impacts paid even a you know any amount of money for the patent protection or because they thought the patents were valid they were selling a brand number one number two all of this argumentation about the unexpected result because of the the metabolite doesn't apply first of unexpected result it has to be that something unexpected is was done by dern compared to what's taught in should vote and there's no evidence at all that there's anything unexpected the only argument that was ever made and this was in the prosecution was that the ph created an unexpected result and the judge and they made that argument a trial the judge knocked it down so there's no such unexpected results on this or heard her say point that the district court sentencing i don't find unexpected results follows a little paragraph that says because even though there are actually unexpected results i don't need to care that in the first part of the analysis the unexpected result being that  effect ok and that's what paper and robinson specifically say these drugs were designed for getting about a metabolite were designed to have effect and so they would have effect then you would by using them in a nasal spray you would get their effect plus all the benefits of them being in a nasal spray a couple of other quick points this question about one point and only figure the best one of the question of counter intuitive i think that's also actually suggest that this is not patentable because there's not a single shred of evidence that is known to have come and and also playing why because first of all it's not a standard for before should vote made his invention and he said you can get fast money and he specifically refers to fast migraine relief he says you can get fast migraine relief using my nasal spray and soma trick thing thank