acceptable solving that's what we just don't challenge the disappearance definition or construction of pharmaceutically festival but under but under the but it is important that they claim pharmaceutically except with all these that confirms that we are right that there is no description of all that because that functional claiming well here he not actually gets to gets to the central thing that i'm thinking about it seems to me and have somebody tell me why this is wrong that under your definition of salt lake or the other side stephan national salvation it is a term that is broad but perfectly well defined as a combination of structure and product by process it's not a functional t it is anything that results of a complex between sol used and solvent coming out of the process of being in solution that as far as i can tell does not involve any performance property any functional term unlike every other written description case that you cite and that have it has imposed limits except what they've claimed and i think this is what your questions get into which is important as they claimed pharmaceutically acceptable  right but nothing in your argument in the brief says there's something problematic about not identifying which of the solve eight is pharmaceutically acceptable you say there's no crystal there's no precipitation there's no reactive one or something or maybe if there's only one there aren't all three but i don't think there is anything in your argument that said even though there isn't enough described here to cover the class of solving of three forms and in their view one form in your view nevertheless there's no description of which ones are pharmaceutically acceptable and i took there that the absence of bad focus was a kind of cautious of oids of raising worries about the unbelievably common claim language about pharmaceutical not be pharmaceutical acceptable in your your argument at least as i read the brief is that that they don't claim a solving at all will i think you are making both arguments judging mally one is there's no solving at all and we state that at times in our in the extent that there are say twenty some no saw bates is it your position that some of those are not pharmaceutically except on defining your honour's not that there are twenty solving the finding is that there are twenty solved in that could create settable one so there's no disclosure in the patent of any solve it at all beyond those two general descriptions which could have been lifted from any kind of treatise about something for what's what's the explanation for what you said about chemical question i believe a question twenty solve and many more solves a with the same so you just can use explains how that may be an embarrassing question but i guess it will because this is the solvent can interact with the organic compounds in many different ways to create many different types of solving depending on what temperature depending on the way that it extracted from the liquid depending on all sorts of different things and then t finding support that notion of just report found that you know similar chemicals can create many different solve a case so it's not there's not a one to one correlation between you taking organic compound and love and you're only going to get one possible quality right and what finding like starting it like finding for use requires a solving to be safe and to offer some therapeutic effect signing twenty one it can be difficult or even impossible to predict whether a particular solve a form will offer  evidence in the specification at all that they had actually present any salvi at all is it your position that they actually had to have an example listed in the written description no your last clear that you don't have to have it but as this court said in boston scientific the lack of an example is can be tempting and there's no but there's nothing there isn't that the experts agreed that you know the kinds of tests an expert would use to to show that they had actually invented as all that but none of that data is in this patent g s case expert had the patent has similar data in it nothing like that is in here that would disclose that they had actually that they actually possessed any solve it at all if nothing  what they have in here is nothing more than a wish or a plan that they think that because they had this organic compound that it might make us a faulty and then later it's more than a wish or plan i mean the district court found and you haven't challenge that in fact that that enabled that without even substantial experimentation there where they would be able to make these this finding and find the appropriate solving but with that too it may just be a wish or a plan that may have them chance of success but that doesn't make it a written description that the distinction this court noted in area had between you could have compound a and that could that give enough information for persons fill in the art to enable compound b but if you have to it and the end of the this court case law doesn't let them do that unless they disclose to the world that they describe to the world that separate invention and that's what they didn't do there's nothing in here under any definition of hol that shows that they have a soul mate in the district court this whole finding is based on finding a quote reactive solve eight in example three d where do you define the line between what is sufficient for enablement but but all information is needed for written description well this court has created no bright line rules but there must be enough in the patent for a person of skill in the art to be assured that they've actually they actually had invented what they're claiming and the next as i said the experts agreed what kind of tests one of skilly are would do to to identify that they had a faulty and there's no information like that in here whatsoever just completely general would break in from statements about solve a with none of the examples show it and none of the descriptions show at they don't say they don't give any indication of what solvents you should use to get a farm to please that will solve it nothing no information at all so whatever the answer is to how you're saying it even if it's a simple as a test and everybody knows that you can go from point a to point b and simple quick easy tests they have to describe you've made something with her but that isn't in a way question just rhonda so that and that's where the district court's written description analysis went awry so he may be finding that it is highly unpredictable that you couldn't know whether it would be  therapeutic unless you knew it was bioavailable and that you couldn't know whether it was by be able to you actually created it but not to worry because once you do create it you can test it and when you test it you can figure out whether or not by the a look that's an a when else that's not a written description crystallize says the specifications will appreciate that they can write i mean i think will appreciate that they can but not that that we have right means that that's something that to create the complex so as the patent goes on to describe the preparation of organic compounds in the next section it talks about all the different prophecy that one might go through to actually form and isolate and organic compounds and those that can include reactions crystal paragraph which assumes that you're talking about crystal in forms in drug compounds we are talking about solids we're talking about crystal in forms and they say that they that some will appreciate that they'll be more than one percent parts are pitted attacks and suspicion obviousness lack of futility ableman were brought to bear on this a written descriptions that was brought to bear all the remains it's written description and it's a narrow written descriptions issue there is no dispute test ride to form new covalent bonds you have a new compound in your defeat the purpose of the claim is is that it has to be in combination with the pharmaceutical acceptable solve a because that that again is what allows it to be administered to patients so i mean i understand that the heart of the claim might be one thing but you still have to describe all aspects of the  question and look at the second part first the second part first which goes to a central dispute between us is there isn't there is a working example of a pharmaceutical formulation in the spent this is a case in which the patent describes you have a faulty it uses two of the solvents that the experts agree are on is very very limited less of potential solvents and it's described as a form of pharmaceutical formulation erroneous whether it's nine or twenty it's a limited number you have a written description of salty's you've got three different ways to solve it's can be made you have a working example and then in addition you feature the common structural feature of all of these sulfates pharmaceutic being sceptical soul but it's just a caster right and that's why this concept of the key becomes important that's one of the where the claim terms have been described expressly in words there's been a working example the patents been able and the patents been found to be invalid do you need the working example  part that i think i'd like to unpack a little bit from the defense argument and it's this this unpredictability concept that district court did not find that there was any difficulty or great hurdle to making to  fying the nine to twenty pharmaceutics of the war a safe solvent to making the solve a case both experts testified it would take only a matter of hours or days the only ous that's where the just a court found that it would only take a matter of hours to determine which were by available and which were more bioavailable than others when you have the words describing solve a explicitly when you have an example an example that describes a pharmaceutical formulation and all of this that's sufficient satisfy the written description of the party and the consequences that the reason that the defendants have to dismiss example three d their claim basically is if you need a working example to answer judge now it's a question we say that that's not correct you don't need a working example their next argument as well and this is the hardest one at least of course difficult one for me to get my head around the next effort to dismiss it is to say well that isn't a argument the first is the district court found example three d produces a solving expressways and it's not clearly erroneous and he was correct it's a solving in solution and the patients so their whole argument that example three doesn't fit can i can i get back to that this this crucial language which maybe you can help me walk through this is just a sentence that everybody is talking about from the reacting in the solvent to form the complex or from which they are precipitated so it better be the same thing namely the compound has to be precipitated from or crystallized in the think you'll see what the issue is we agreed to or frame to organic compounds so and i like to make two points let me go through the grammatical point first reading the sentences but then urge your honor i don't think you can just lemon partly because the district court in its opinion is a five and a seven talked about a pump less doing reacting that and adopted a construction your construction which talked about the compound namely that the castle right where the writers doing there are reacting it felt to me like there was some genuine confusion about what was doing the reacting what was doing the precipitating what was doing the crystal and i'm finding it i guess important to understand the reality that's going on here to understand what this sentence is i think the way that we read it and i think the way that if you take just records to wild reaction this is what that the proof was a trial and this is the evidence on which judge and whose faces testimony it includes for sure the creation of new coke alan bonds and in fact accounts five and seven describing how you make taps right it describes that but the expert testimony at trial and the expert testimony of the judge in whose credited was that when you form not covalent bonds he can be released and if he truly is that's an indication that there has been a reaction and that this pattern uses the word reaction to describe both the formation of new covalent bonds and the formation of non covalent bonds where reaction that releases heat and judgment to burn specifically testified to that and it just reported specifically credited so to this piece of the sentences about the organic compound reacting with the cells and to form a complex a form of solving yes a conflict you know the conflicts and what about the rest of it and then it says from which they are precipitated for they better be the same organic self it's i'm not going to tell you that this is one hundred percent model of clarity but that's why the explanations that just forgot from the experts were critical and what you just  concluded correctly both on claim interpretation as a matter of the evidence is that the organic compound is to test right it's something that exists that you can react precipitate or crystallize and create non covalent bonds and those are the use complexes and the key your honor is if you took the next two census these complexes are known as sulfates for example a compound with water is known as right are described expressed terms there are different forms and different ways to get there but that doesn't change the claim turn and when you have a situation where that claim turned is described a doesn't have any performance property in the form of properties something that i mean to be functional and every one of the written description cases where we've imposed limits on claiming something of  form anything that has the following property but we're not going to we don't actually know either is structurally definite element definition of it or a product by process that we think that this seemed to be a combination actually of structure and product by process but then it seems to me when you introduce pharmaceutically acceptable you've now introduced a performance property this is i think the answer's just two fold and respectfully the first to in the oceans are in organic compounds that's what they said in reply that is simply not true and i withdraw your honor's attention to a one zero zero nine four and you'll see you'll see the true million reference which describes salvation of again it compounds in solution you'll see it specifically talks about large organic  it can be but so does the expert actually concede that this hydrate can be a solid state regardless of whether it's still in solution or whether it's come out a solution i think drawn or to resist just one in context you'll see that we're talking about i someone is and this is on cross examination i believe that knowing a hydrate could form with an interaction of water and inorganic molecule had been known for a very long time that was a cross examination directed it is testimony that you should focus just  state chemistry i think an important part of this is and i'll finish because i don't want to have to wrap up your ranting time last sentence this is all evidence and all witnesses  d there's no evidence example to review that anything other than do tasks arrive dissolved in a solution which is nothing but the compound the detached right or is the first part dissolved in the formulation suitable for administration to a patient and that example safe solving so how is that not sufficient to satisfy the pharmaceutical acceptable solve a description if they describe the fact that they are that they're making solving and there were they were known in the art at the time isn't that enough no your honor because the findings twenty and twenty one the district work from that solve a formation within a information and that is key because here what they have claimed is pharmaceutically that will solve eight and it's the difference that matters so mr lee says well but do tasks or ideas the common structural element to test right is part of that of a solve eight of odd but the different part is the part that drives the unpredictability and that in that drives the uncertainty in the part that needs description and it isn't described in pattern the two through to your point judge toronto the patent says that the appropriate skill of the art is organic chemistry and their experts pre lit a geisha writings hundred sixty articles all describe and define solving and complex and so they can they have searched high and low and they have found four references that they claim support their solving in solution fairly one being from one hundred thirteen to others showing inorganic there's no so if you accept our definition yet there's no crystal crystal in form disclose that all of this to be clear your definition excludes crystals that are still in the solution dissolve