and the cherokee equivalents only so what is a relevant market or role of an empty trust market is the smallest grouping of products that constrain each other's prices significantly that's what this court told us and smith kline that's what the agency's merger guidelines tell us and all the waiter cases are in a court how do you know where the fact that there are that the record in front of this demonstrates that those in the market considered their own competitors problems elsewhere in the tetracycline market and not limited to door x industry recognition is one factor there is very little evidence of industry should thank you judge perry the answer is no the question in every case is whether in fact the prices are constrained by by other products and in many cases they are and in some cases they are not there are numerous cases that have found generics in there and be rendered equivalent to comprise a relevant market the supreme court's decision in activists  explaining that the condo there would not make economic sense of but for the fact that the defendant must have had market power and we have the same thing here but actions in this case make absolutely no sense if the market is broader than dorks and as generic equivalents why would you spend millions of dollars to take the product off the market if your prices were already being at the timing we're talking about twenty eleven for that couponing event six years after the initial switch or because the massive harm but more importantly if you look at that couponing a vent we're talking about the two hundred twenty five dollar price difference that amounts to depending on your level of insurance coverage and ninety to ninety to one hundred percent nineteen hundred percent that was a whopping price change and the evidence is that it was done because my allowance and generic the seventy five one hundred was coming on the market dollars we know that all of the wholesale inventory was bought back defendants to know why the retail inventory was brought back but there is ample evidence in the record that significant retail and inventory was brought brought back as well specifically eckerd and rite aid is not going to cut the anti competitive component rather than the definition of the market your honor goes to both and here it's really difficult to separate the two because  that's why the decision should be reversed because the record discloses ample disputed issues of fact on that particular subject in fact we thought the evidence was so one sided in our favor that we moved for partial summary it's all of the other top in cases there are five of them in addition to judge diamond's decision all of them even the two that rule in favor of the defendant recognize that the means of yes and this is very much this is actually worse than the switch in the men in the case judge barry because in this case the product was simply withdrawn which is what judge walker f opinion prior to generic entry defendants forced patients to switch from the men who are to x are the coalition in this case where there were so many options available perry is smiling is a big company there's no question about it but in terms of blocking generic entry mylan was blocked as much as anyone else i do want to respond on syria because i want to make sure the facts are clear so since those was not trying to get into the market earlier they actually had an end of the war seventy five and one hundred milligram capsules that was approved and they head difficulty the same this testimony is that they stopped selling that part of the very few pills were sold very very few not even close to one percent of sales but sand have a product in two thousand and six there are a few sales and the saying goes testimony in the record is that they stopped selling for two reasons the first reason was that the market had been taken away by the competitive reason for that activity your honor we don't believe there's a genuine issue of fact on that because we think the evidence and so one sided in our favor but even if you accept parts of that argument you have to testimony of just the opposite the fed is to raise prices consistently until until generic entry was was a reality they raise prices significantly without losing sales to these other products that tells you under the tests that are used in every case that that is a relevant market it is it is it a customer experience have a product on the market and  any competitive conduct is that the manufacturing costs of the tablet were significantly higher than the capsules not withstanding the absence of any therapeutic incremental benefit choice no consumer choice here is decreased there are a lot of products on the market the only price is the constraint or expressing our durex and it's generic equivalents we are not attacking the introduction of new products i can't emphasize that and more than i have and we are not challenging innovation we are not challenging the introduction of new products in this case what we are challenging is competitors in that case could've approached the dentist directly and made sales but the cost efficient means of distribution was going through the distributors some distributors were locked up but i don't supply and that's the same thing tablets would not have been introduced so the damage theory of the case is that we're straight jacketed and we can only sell capsules so from one thousand nine hundred five to twenty sixteen so that means that the american people would have lost were tablet be happens because the pricing evidence and the basis that on dr nelson dr nelson shows pricing charts if you take a look at those pricing charts in your honour's this is found in the appendix at eight eleven thirty five fifty two thirty three and the contention of mylan is your prices going up and it's higher than generic came over but that describes everybody and product in this economy as well as every brand drug finally on docs a quick look at eleven thirty seven the same testimony in this record is that couponing occurred from two thousand and five to two thousand and ten to the tune of two hundred thirty million some of the words before the first eighty rated tablet was sold by mylan we spent a quarter of a billion dollars on makes the following observations to roll call out what it is we're going to have to sample to get our price down to the generic because this is a market a wash and generic so how does that work in the real world that works that if you go to the doctor's office our detail person has given the doctor free samples then to the family with a teenager they get a sample that might be the first month's supply and our hospital will we have our sales person call in that doctor is then they'll be filled with the  milligrams and then have a maintenance dose of fifty you cannot do that inherently with a capsule in addition the two thousand and vention disclosure memo that main road is its critical reading in this case it says first  strategy you also said there's evidence in the record that would demonstrate how competitive reasons there were folks on hats for this this discussion that would justify the change is that an issue without the ball it's an issue for this court and first of all he is a matter of law the fact that you have an airtight view of your competition is to be applauded there's evidence in the record that says they have an entire brain and intent they of course begin tigray and business model that's exactly what they do each and every day as they question is did you do something in a competitive and so this is a case your honour's where there are little exclusionary contracts rights it's nothing like microsoft want to pay just rebates all of those opinions of this court start with eighty or ninety percent market share i am i am saying that the the evidence in the record that mr goodly science the f d a says you can't use for that purpose in the room experts you can't use those data for that in france and sweden in australia were made in is is located on the capsule continued main thought it was just fine to continue with the capsule there in the united states there substantial evidence in the record that to further fend off generic competition defendants consider going back to the capsule in twenty eleven twenty twelve or so so the idea that the microsoft case another quote unquote predatory innovation case and i would say this is not a predatory innovation it's a product withdrawal case but the microsoft cases think you have to balance these effects so but just just one point on one output which is the output of dorks declined significantly eleven to twelve percent after the initial hop two thousand and five to two thousand and seven there was couponing in two thousand