deciding them have any effect on a party's ability to do anything at the time that the judgement and decision is clear information irreversible and yes it cannot be dropped out of my reexamination  that we notified the court and then there was a briefing on that matter prior to the court's decision and we remember there was a point in time in this record in which you told the court you weren't intending to proceed on certain of the client's correct but i don't remember that that document containing any notice or reference to the cancellation are you referring to your simple notice to the court the you intend not to proceed on certain claims and the fact that you didn't offer expert testimony on them are you talking about actually submitting a copy of the cancellation so i'm talking about both your honor so i trial after the piece that decision came down in the middle of trial we decided to focus our case on only two claims and to drop all of the other claims we told the defenders that we told the court that we're going to file a statutory disclaimer in the p t o we did yes but not at that time so at that time we then proceeded to finish the trial afterwards we did not appeal the pieta haps decision with respect to those claims and so they automatically will have been canceled we then had a discussion with the district court via letter the district court of the defendants were advocating to the district court that despite that fact that we had not appealed those claims are still not canceled existed so then just to button that up we file  cab is a tax so greater than twenty were known in the prior art and used to treat dos attacks all resistant prostate cancer your honor there was an ongoing clinical trial at the time and  prior art that was available to the court was a description of that clinical trial ongoing at the time so there was a description in the art of eight use of twenty five milligrams greater than greater wrong say that there are two ways in which they have a stake in including the six disclaim claims in the judgment that one has to do with claim preclusion that's not what i'm interested in at the moment for this that keeping a claim of eleven in the judgment would provide issue preclusion as to the proposition that and now i'm just going to repeat what i asked you about dosages of campus attacks so greater than twenty milligrams or is that m yet milligrams per meter square meter squared were known in the prior art and used to treat dos attacks so resistant prostate cancer one way that you could make it maybe not the only way one way that you could answer that a little bit of issue preclusion is to say on that factual proposition we don't dispute it i think the better answer to that is the one we've we've we've pressed in our gre and that is was i understand what they're saying is if you combine eleven claim eleven and it's dependent it's dependency all the way up to claim one that you we that is an issue preclusion on our later claims and what we're saying is  those later claims survive there are so materially different then that combination of claims and that they are they are not dependent on that the findings with respect to claim one for example do not apply to those cla because of their different construction and their different limitations i think that's the that's the assertion will make we are not abandoning we are not abandoning claims to twenty five still just said just just to be clear i mean that there are other possible used to treat dos attacks so resistant prostate cancer i agree with that factual finding that not used to treat used in a clinical trial i don't agree that they were used to treat that they would have to do so which was known and in a clinical trial percent and i don't remember whether you said the following explicitly or not but the reason you care about this you want to get rid of these claims has something or other to do with trying to reduce the will be used later that to as some sort of collateral estoppel or claim preclusion or something with respect to claims that we might get in the future yes that's the problem the  issue though your honor is that that contingent possibility the possibility that the p tag will issue claims and at the time that the court decided this case that the federal circuit would reverse the pizza in the st in that sense happened but we have to focus on when this when the district has the what has the that happened a while ago has the board acted on remand yet the board is just sort of briefing schedule we've got one brief has been filed the other one is due friday so but the focus of this court's analysis should be at the time that the district court entered its opinion and entered his judgment did the district court at that time have subject matter jurisdiction the fact that the claims no longer existed the fact that they could not be asserted against any party the fact that they did not and they did not need them decision of infringement on those claims in order to launch their product distinguishes them from the  three m case the fact that they would not affect another proceeding that was being stated distinguish those them from the i d c vs microsoft case and the fact that those claims did not exist at the time distinguishes them from the if i could turn to the one hundred and seventy patent if yes ok so your honor that decision should be upheld here because the courts finding that a person of ordinary skill in the art would not have been motivated by the prior art to simultaneously preference turning to the hate reference the court made a number of finding showing that the court clearly understood the hague reference and clearly understood the testimony about the hague reference it found that the reference itself does not discuss tax aims i understand that's not dispositive but it is a factor in this analysis if found that it was not cited in any of the many articles of prior art in the taxing field by any taxing researcher at the time including not just persons of boarding school in new york but all of the experts doing taxane research at the time it discusses the hate reference discusses a completely different class of compounds that have substantially different chemistry than taxing incident could again having a charge on the molecule the compounds in hate were tested for a completely different purpose they were trying to block the action of hate not trying to avoid into i understand that the other side's theory is that hate and you're going to have to fix maybe more than one thing this hate shows that stuff that binds closely to the molecule that goes from the inside to the outside will block its skull it's pumping action that suggests that we really want to keep a we want to structure that isn't going to attach to the molecule that crosses the cell membrane at all i realize there's a gap because it's that has nothing to do with preventing it's actually tying it up to prevent the blocking but it tells you something about the action of this cross membrane at present protein i guess it's a prize a trans member in protest right and therefore we don't want we would like a molecule that doesn't actually attach to it at all because then that moved right your honor so it's it's a question of interacting with the protein you know way that diminishes its function so that can be done a number of different ways that you're gonna mention if you could attach something to label right that is correct your own and if they had in fact divested themselves of that property right as though it never existed by having filed a statutory disclaimer prior to the conclusion of that trial  which isn't going to be your overwhelming point and then you have this little issue preclusion point that i was talking about with your opposite number but i'm clean preclusion here's here's what i guess i'm stuck on your claim preclusion point is that as and therefore there's going to be claim quickly can and and just assess i will assume for purposes of this question that that's correct that seems to me can to be completely unaffected by whether the disclaim claims are in this are within the judgment because there remains a final judgment on these claims not on these claims i'm sorry in the case because twenty one and thirty remain and they are not being there's no question about removing them that's correct you're  by virtue of the fact that it could have in fact assert claims one in twenty seven we have a judgment two thousand one hundred and thirty but sanity argues that century should be read narrowly such that well claims one and twenty seven were never taken to trial and the only ones that were taken circumstances test as part of that this court is going to have determined whether sanity on the one hand and defendants on the other hand had adverse legal interest at the time the district court and her judgment over the disclaimed claims and our position is if sanity was already precluded  may not actually focusing on the conditions under which you will agree or not but rather putting aside your agreement or you can you let's assume that you resist this and then you say here are the reasons we judgment i don't see how that can give you a stake in clue sion or an exclusion of the disclaim claim so when you do make this one little point look a single basically a single carry over sentence on some page or other in which he say he said claim eleven keeping claim eleven helps us invoke issue preclusion about the district court's finding and it's the one that i read about four times before and you cite appendix ninety one and ninety six or ninety seven and ninety one is about claims twenty one and thirty which are in the judgment so and then ninety six and ninety seven don't discuss the twenty milligram judgement that's not being asked to be altered which is the discussion of twenty one dollars rd that's correct your honor we we are we are focusing on the disclaim claims we're asking for judgment to be maintained on cover the dosage just the higher dosages that the substitute claims are directed to who are librescu across appeal yes i believe i believe i still have time remaining you have less than two minutes but ok my colleagues and be dressing  keep us off the market we respectfully submit that that stands that is why you think some of us would not go to market if the amended claims haven't even issued yet why would you not go to market because of the uncertainty your honor and congress instead that legal error is the district court's limiting its analysis of those two key prior art references hate and lamp of this exclusively to the explicit teachings of those references by doing that the district court found that those two references were not the teachings of those references were not relevant to tax changes because they didn't explicitly address taxing even though talking about hate i'm talking about common binding site on p g p and this was at appendix twenty four dollars to forty nine dollars none of that testimony was addressed by the district court which leads to the conclusion that the district court in dismissing hate and lampa test wasn't relying on actual factual distinctions between expert testimony and this distinguishing fantasising from texans but rather on the lack of an explicit disclosure in hate and lampitt of taxing where the district court got the legal standard right the district courts factual findings actually attacks in other words the district court made findings that support the person of skill in the arts reasonable expectation of success really the only element that the district court found missing in the obviousness analysis was the motivation to make simultaneous modifications  because those references were not explicitly about taxing his but rather about other classes of compounds that was legal are under this court's precedent and as ever says milan the court must take into account not only an accident you said that that was  underlying error infecting the determination the proof was not adequate among the many many many possible choices for modeling at different places and different ways that this you would have been selected why why does that actually harmful lead in to that conclusion when there are so many other choices that others were choosing a lot of different locations point i would make is that to the extent the district court talked about the modifications being made all over the taxing core the evidence was that those modifications simply weren't relevant to the obviousness analysis because those didn't happen at the relevant time the relevant time for assessing the state of the art is at the priority date not before and the evidence at trial from the plaintiffs and venner dr bashar was that there were the those modifications that had been made all around the tax and core had already been published as a priority date in the co reference and so the modifications that had been made mostly by these on predecessor are p r prior to the priority date simply aren't relevant to what was known to the person of ordinary skill in the art as if the priority date if there are no further questions i would like to r changes to the taxane molecule the answer is nobody ever did and nobody ever would because that model st of all it's totally hypothetical based on a different protein kalimantan they don't know what the structure  the taxing molecule is completely different there's no teaching that the taxi molecule interacts with that binding model in the same way that the female dyes seem to have does they rely on the green berger and software references but all those say is is that within a relatively large domain of the p g p molecule photo affinity label experiment show that these that that chemotherapy drugs and these chemo s into act they don't say how they interact which is critically important and the testimony from doctors who do any was crystal clear on this point i have no idea how those interact and therefore if you don't know how they interact how can you change a molecule to better that interaction going on in march one thousand nine hundred and five the relevant date and clearly it shows that you were at least considering the binding model of a body modeled for taxing us is that correct no i said that is no the testimony they quote in their brief or he says he took that into account was later research on chemo sensitizes those are the type of compounds that the network being studied in hate not if you know but compounds that block the action of p g p of the things that you've said in the last three or four minutes how much is reflected in district court findings the district court to the district court findings a lot of what i said is not reflected in this record finding that the compound for different different chemistry used for different purposes has no information about the actual binding site of p g p a hypothetical model based on totally different protein that's in a fifty of the court's findings and again i'm just trying to i think your question is a critical point here that the district court simply didn't take into account and there's no evidence the district court considered any of the contrary evidence that the any structural provides a hypothetical binding for a come on to one which is different from an unrelated to be due the rights of the district court cited that did not take into account or address or mention the testimony the evidence or the prior art that suggested otherwise in other words the district court is that there's no evidence that the district court waived those those expert that expert testimony in those fact findings in determining that the reason that he was an to tax and had to do with any of the structural differences rather than just a lack of an explicit teaching for final book well my final thought is that if this court does reverse legal error and applies the teachings of hate and la