the court the boards are non obviousness findings here should be reversed for two reasons let's start standing ok which is a problem because in the under the supreme court's decision in massachusetts even if the it well first your honor the royalty stacking wasn't the only argument that was raised the concrete in particular lies to injury that was discussed was the devaluation of the  due to the overlapping eight five six patent that we have here and this case is very different as the saying is royalty that well because the patent is being devalued due to the overlapping subject matter it's not so it's not only the fact that genentech is paying royal royalties to immunity and it's the fact that there is this overlapping subject matter to a litigation that's currently going on with genentech involving the then where is that in the record that is in the record your honor at not going to entry twenty six and exhibits one in two there are no give me an appendix number and i want to i want you to show me where that the record continues on that sixty five forty three when the negotiations finally ended what this is in the first place will use the word self serving in the second place will say it lacks any foundation i want to earth are we supposed to consider this as its cognisable evidence of assertion you just made the the evidence was part of the motion to dismiss record which was that docket entry twenty six there were two declaration submitted as part of the motion to dismiss that was passed to account something as evidence is because it's speculative that's of are an objection and this is as the judge says this is speculative under the spokeo supreme court case the harm can be intentional or a risk of real harm and and here since we have a statutory but in writing to be speculative right it cannot be speculative but but a risk of certain is certainly exists here certainly to the same extent you know like of the possibility of success is the equivalent of a risk of harm even if it's infant well the evidence that i can point to was in the opposition to the motion to dismiss which were the two declarations not only from the c e o of fi gen explain but also exhibit two at documentary twenty mechanism of the action the i would guess in the condiments somebody specialize in a case of best we think in which he says it is my understanding the fi janet's has developed it is developing and so on he doesn't know i mean what kind of evidence is that for sure if it's it's a bit maybe the basis for expert testimony about doubt valuation but or damages but but was somebody's not a license here that they've got to consider whether your patent covers the product they're producing or not without regard to the other patent other than that they do and there there is a lawsuit that's going on right now to under non obviousness finding the board basically used the wrong reasonable expectation of success here in its institution decision it said that one would have a reasonable expectation to make the compounds and that's at appendix one eighty seven but in the final decision they reversed course deviated and said look at the toxicity instead of whether the immuno conjugates would be reasonably expected to be able to be made which was the test they set out in the institution decision here that prior art uses that two of the same three linkers two of the same three precise compounds in only deviates with the antibodies and there was an express teaching in the cherry referenced to use the same antibody and had the board used a proper test they would should have found that the claims were obvious since the paid fifty six and they said if we get rid of the fifty six they'll pay us more for the licenses on our patent would that be injury in fact sufficient to allow them to this in a close a case where the supreme court noted that i p r is far more likely administrative agency proceeding than a judicial proceeding and that one could seek an i q are yet lacked article three standing supreme court says that in there severely lacking in this case and of course you know this requirement for in injury in fact or an or an imminent injury in fact it's a hard floor of article three that's what the supreme court has explained in cases like i think is the summers case an awful lot of evidentiary requirements and i want you to go through that chart so for instance if i janet has not presented any third party not identified any third party that might have an interest in licensing not partnering with any with any other large companies to bring a drug to market and so this this idea that they compete is based solely upon their theory that they compete licensing but even that there's no competition for a license to both patents it simply wishful thinking on the part of the unit you know wishful thinking on the part of hygenic and they presented no proof there of that documentary that i was trying to refer to earlier stock has nothing to do with the eight fifty six patent gentex refused to license that patent on completely other grounds so this notion that the eight fifty six is standing in the way of by gen ix gaining royalties or having him having jeanette tech pay money to buy genesis is just frankly wishful thinking on their part and it's not supported by any documentary evidence or any evidence from third parties does that who makes these generalized theories but he provides no valuation whatsoever of the of the market they show no interest whatsoever in the market in a market for a license to the five thirty four patent and let alone any interest again they have failed to identify even a single entity that has an interest in licensing the five thirty four patent and who would also need to warranty to the fifty six patent so this supposed harm again is just purely conjecture on multiple reasons based on of a well developed record that was full of evidence and it's full of the kind of substantial evidence that this court looks at the record for so blow by gen x fail to demonstrate that there was a reason to combine which the board also considered substantial evidence of non obviousness in each of the boards back to act findings was supported by substantial evidence including declarations of multiple experts we submit for expert declarations the three of them didn't even oppose or submit rebuttal expert testimony against their reply was based purely on attorney argument and was not supported by any expert testimony and so the board weighing these facts understandably found that  or even in red line detection you should not consider such new arguments but you should consider whether the board properly based its decision on the arguments that were made below and that's what happened here in the underlying i making new arguments about not clinical use it makes new arguments improperly about whether the prior art would have thought that non clinical linker or would release them a tangent void in the cell and that's a new argument that should not be considered here and then additionally i'd like to note that an appeal by gen x argues something that's shows a fundamental misunderstanding of the science at issue here so for instance that at page fourteen of their blue grief they say that the t a one in a body which was flawed in contrast looking at the court's decision below the court did apply the correct legal standard and they did this in the right decision which is at appendix twenty going on twenty one where they ask whether a skilled artist and would have had a reason to combine th you know on this on a standing issue that there there is no procedure to make a record of that at the p t o or the record was made was made here at at the docket entry twenty six exhibits one and two there wasn't any declarations submitted so really the only evidence that says in the record are the two declarations that i discussed earlier in regard to the obviousness and the mistakes made by the p have the key mistake was on the expectation of success the original petition did not set it up as clinical reasons only threw out the petition at appendix fifty nine ninety nine six thousand and six thousand and one the rationale we waited to hear your statements not correct you said the only evidence is your the two declarations you discussed but there are also declarations i disliked attach a motion to dismiss as well it did in those declarations i'm sorry if i misspoke do not directly address the economic harm that they they expect they made a reason to expect clinical success or non toxicity and that wasn't what the petition was based on or nor was it what the institution decision was based on it's a compound claim and therefore for the composition toxicity is not an element of the claim yet the board use references referencing toxicity to say that there wouldn't be a reasonable expectation of success to make the compounds which which isn't true they thought they said there wouldn't be they conflated the method of use or a method of treatment standard where you would look at clinical effectiveness and toxicity with the standard for a compound claim of obviousness which is simply would one have ect an expectation of success in making the compounds and here there clearly was an expectation of success in making the compounds their expert admitted that at appendix eight seventy eight that that type of process to make the compound was well known and that's why it's obvious and that's why it should be required i think it was her thin