dr beatrice testimony had serious shortcomings that prevented it from serving as clear and convincing evidence when in fact the district court said his testimony might not independently don't think there's a difference though between sometimes that kirk's determination that there could be sometimes spoke in generalities and the court saying he spoke in general and  s i believe that is our characterization of the impact of that which is when she said that his testimony might not serve to independently serve as clear and convincing evidence of inherent seem we believe that echoes a finding this court already to it's evident she relied on in support of the finding of apparency but in our position of it she relied this court already considered that testimony the first time around found it was into fully said it wasn't enough standing alone in greece she's agreeing that it's so we we believe there are two we believe there are two fundamental errors in and what happened in that analysis by this report first of all we think it is clear from the discussion on a ten of the of of her decision analysis of the inherently doctrine made clear that the same analysis applies in the anticipation context as in the obviousness context and the reason we are getting to inherent c in the first instance the only reason inherently is relevant in an obviousness analysis is because the prior are on its own did not suggest or motivate arriving at the limitation there's no dispute it's based on the finding the previous finding the food effect was unknown we discovered that we also discovered a particular solution to that food effect and we claimed that and we included the food effect limitations there's no motivation to get there and there is no description of that limitation on the planet and that was outside in the prior case but the only reason we're getting it into inherently is because of that so the clear import we believe of the court's previous decision is unless the skill artisans sitting with all of these are relied on process with the motivations found by the district court will necessary necessarily that's enough for inherently and we would submit that's no different than saying probabilities are possible if you sometimes if you sometimes always get the result and it's inherent and that fact and then that flows into my second principle argument on h strongest testimony last time around found that wasn't enough on its own she went back now and went into our examples in our past and that are not in the prior art they were the result of substantial work knowing about the effect that we discovered this column after column after column in the pa that's not evidence that what somebody of ordinary skill in the art would have necessarily done without the benefit of our specification would would inevitably get and then she took our commercial embodiment which was derived directly from that and then she the necessary relevance and we weren't nobody addressed these and we think this falls squarely within the cases we've cited that this cannot be done attorney argued nobody testified about these three examples at trial that they were representative of the of the  any if they did we get the cross exam and then we get the put on an expert that says that's not true we have all kinds of rights that flow from this in this court has said in numerous cases we cite you gotta have expert testimony to say this and so and that's where we think in why you might need any additional material or an additional opportunity to present an expert well it's cheap it was to give you eyes at the first trial it was their burden of proof to carry their case they did not put on it inherits a case no one got on and said when i do certain things i necessarily get a certain result so we weren't responding to that and on remand they were stuck with the record we believed they wanted to reopen it and put on more evidence we believe they should have been stuck with the record that they tried that that's what we didn't even realize opening the record was was something that was was an option we thought this was it remained on the same record and probably was just asking yes let's talk about anyone yes ok so what are your basically no amount of experimentation would allow the claims to be practiced outside of this particular one hundred to seven hundred the enemy terrains that she selects and that it would make it practically impossible and  three and a three one one nine and on those pages dr these each doesn't say anything that we think can swear we support this practically can't be overcome he says we get decreased by availability as we go down to particle size below a certain cut off let's call it for sake of this one hundred microns the particles tend to react rate and begin to act as large particles again no statement that it's we think this or if the critical part of it appears on a three one one nine he's given his his the principal part of his testimony if it's less than one hundred nanometers or greater than seven hundred fifty nanometers this is line sixteen to twenty then it's really not able because there is nothing in the pattern that shows me a particle sizes of the product in that range that meet the claims of the pattern so it's affected me saying the pattern doesn't show me examples in this range therefore it's not enabled he doesn't do any analysis of any of the wants factors other than sort of the generator that this general statement in fact the district court found he considered the wants factors she cites page eighty three one one nine pages  she read the entirety of dr was explained to you that there are several factors to consider in determining whether there is going to experimentation answer yet i was educated as to what enable might consist of by counsel but what i mean let's worry about whether  of couple of significant points and within the specification that one of the significant ones that our expert testified about trial was citation i can find that in a second but since the claims are by weight you could have a large population of very small particles and a few larger particles and someone is able to circumvent a narrower claim and so with that you can still have the effect average be higher up near two thousand and yet what's within the claim another thing i think is important we cite this in our reply brief if you look at there's a chart on page ten of our five percent the upper end of the narrowest claim down to eight percent and that's actually effectively negative a fatted c max was higher got this full range and that was by varying that was one variable change which was those concentration they were loading more drug concentrating more drug and less vehicle and that was just that one factor was able to cause a very significant impact on the on the food effect the w i argue based on one internal e mail that some scientist that we don't i don't know what his qualifications are to talk about dog studies that the results might not be the same and she made a fact finding on that but there was no testimony about the d watson case on the enablement we think that the case is right on point where this court has continually rejected conclusory enable the case you get up and say it's not enabled and you don't you don't go through the factors how much how much experimentation is required what are the examples of a lot of examples what are they what they teach a person of ordinary skill in the art what would you do why is that insufficient how much work would it take there's no discussion of any of this is just we were arguing from the very beginning of the case in our pretrial briefs everywhere around that we were relying on the power of versus the the power of the centaurus case where the court said that measuring the blood levels of an obvious formulation does not make it non obvious including those in the claims and so we put in proof we argue that from the beginning that was the law at the time there was no we have the benefit of this court disclosed in the the fact of to the fact that they but you do not argue below and so my question is did you have evidence to support the conclusion that that you fell within that description of what you have to show that that was in our original opinion yes we did your honor we had we had judged dr beach and the even their own expert dr the research all testified that the food effect reduction is a physical property of the particle size it's the particle size is the only factor that has any bearing on the of the what the food effect is because of the noise that the noise whitney equation about the smaller the particle what about what evidence supported the conclusion that that the food effect of the claimed ranges was necessarily inherent right well because of because of that we were able to show that the and was able to look at that yes these particles of the size of the product produced necessarily the food effect it is a physical property of the particles of these particles are there in just like your are did in the alpine case said that if it's the same particle it's not a reasonable to say  gets the same effect and that's what you know what we proved we proved it was the exact same thing and the measurements of the particle size these were the measurements were up at three thirty where they were the the ninety's and the data sets that worst plaintiffs of the concert in this site misrepresent what the judge did there when the judge was citing that when she said that examples are enough she was responding to their argument that we had to show that you got that the food effect was necessarily present at particle that that a two thousand and so by showing that it's obvious that's necessarily there between one hundred four hundred they've proven the claim is obvious because a specific example will invalidate  district court's findings were you know it's pretty simple she said she said that there isn't do we know that the food effect is a result of the reduced particle size and so there is no way based upon all the evidence all the scientific and there's only one example there's only one particle size that is in the specification that's one thirty use the patents nomenclature so they have a range they claim to range from zero to two hundred to two thousand which is really twenty two hundred and they have one example in terms of particle size within that range and that's one hundred thirty nanometers is the average particle size and she and there is actually evidence in there that for example just dr beach talk about dan is only talking on the other examples we had the prior art dr that the smell of the particle size the more likely you're going to get the claimed benefits i mean there is actually a statement a patent that basically supports this records finding that it's not operable because she because they claim two thousand to zero and she actually she was able to say that when you get down to a lower range of that that one thirty yes you can get it but then about that you can't because if you make the particles bigger they become less valuable you can get by the ability of theirs and there's no trick there was no trick when dr live prior art and then a crystal technology to prove the solubility of the prior art and so there is no other method that anybody talks about to overcome the intendant problems of the solubility of these molecules and they be hyper alkaline case i believe are the ones that are most instructive here if you claim a range you have to enable the full scope of the range and we expect that and if someone later comes along and discovers how to get this food effect that's claimed with two thousand particles two thousand nanometers in size they're going to be blocked because these the panties here claimed it already even though they didn't teach you how to do it and so that's the problem here it's like well you don't have to prove everything within the range we have to enable a full scope of the range and up of the range and here the court found that over two thirds of the cleaned range particle sizes were not enabled so that should be the sponsor of the enablement case there was one example and dr beach testified about every one of the ones factors we cited in our brief the district court was able to ascertain that testimony about each of those were not required to say these are the  what we know back then outside of the sweet spot here which is one thirty with us and here i think things i'd like to address that are wrong with you know you do agree you have been able the full range well i think there's i think i think there's a couple of points here first of all there's no dispute that we enable independently the full scope of each range that you can make from two thousand down to zero and you can make the entirety of the food a factor so we're outside of mags we've solved the food effect all the way down to zero the argument they're making which is this report characterizes the union are human is we have to be able to do them both simultaneously and so we don't think there's actual legal support for that that doesn't fall with any of the cases we don't claim you don't fall in our claim a less you eliminate through the fact the requisite amount that's different than the alcohol and cases so we think i haven't seen a case that directly address and incidentally in the original district court decision she rejected t w i's proposition that dan as all serve as an appropriate model for me just to last a day they argued that because of what was known about and it's all you would know about the food a fact and you would know all these other properties she rejected that she may have made a fact finding adverse to that and so the record for enablement is what appears on the two pages that i cited earlier and it just doesn't meet this court's case law that is rejected