there's no space between those allegations really bomb it and what we're different teaches and if you take those it as admissions of a party opponent those admissions that one's daily cialis arrests and regress curious long as a patient suffers from reptile dysfunction they recognize the meaning of that as being months if not longer and they made it legal error though by taking that separate teaching of as long as the patient suffers  that there were clinical trials the real long term clinical clinical trials treated in forty five days and they relied on that piece of evidence of long term clinical trials and evidence that cialis once daily has taught or extend it and they say we are not persuaded i should not read that as them finding it doesn't express the teaching and then the next parrot paragraph reaching whether it nonetheless inherently teaches i should read the opinion that way i should instead read it as they mis understood that their job w addressing it he didn't express the rest of therapy it's true but if you they're pinioned their arguments kind of run into themselves here if you look at sixteen of their brief in this case they are arguing that and you read this pure symptomatic treatment now they want to say that there could have been pharmaceutical intervention there was no treatment there claiming to be the first treatment that is curing recolors function and so if you're really whitaker as symptomatic relief testimony where he says i respect it's take months is on people seventy five to seven and so there's only one meaning to what as long as commune on the record and that meaning of months falls within the scope of not than forty five days so that's when it's taught and if the board either didn't recognize that were didn't make that finding it i have a question in place supposed to have his what's troubling me about the anticipation and i give it to you in the form of an example suppose you have just treatment for the symptoms of common cold which can last anywhere from a few days up to let's say three weeks and someone discovers that the treatment of discovered that is that invention anticipated by the label on sudafed that says you can take it for as long as the cold lasts no wouldn't be because you don't have the right population  can be avoided is something that i've been wrestling with this new way of writing claim that this directed specifically to let's say a atherosclerosis or something for which these products activity of merely prescribing cialis without any specific population would be infringing here we have whittaker teaching to a specific product population and we dispute the idea that there was any invention here at all were diabetes and so what that means is that if you want to apply whittaker you're not going to apply it to a patient who is eighty due to some injury you know some tragic injury you're going to apply to a patient who ha so counsel is made to main argument here today regarding why the boards really should be overturned based on what occurs teaching that administration be daily for as long as the patient suffers from wrecked out of function and for use of once daily cialis are not admissions for the purpose of whitaker which is a different reference so the principle of that which would literally infringe if later in time anticipate that earlier applies when you have the exact same product or method being accused of infringement also being publicly available before the invention date the once daily cialis product label and would occur are not  take one tablet of the dallas fill specifically at approximately the same time every day and unlike whitacre those instructions for once daily cialis also contemplate that it will be administered to patien on appeal that that is an explicit disclosure of treatment for at least forty five days so lilly does not argue that the limitation is inherently disclosed and its argument for explicit disclosure fails for both substantively there are a number of holes in lilly's argument first there simply was no finding of fact by the board that the statement and whitaker means months were longer the board simply summarized lilly's argument and then indicated it was not persuaded on pages eight nine of the as long as you need it for a patient in this in this patient class would be for a period of months if not years right so dr goldstein is offered only his own unsupported testimony he doesn't the field he is an expert in the field but he also admitted admitted that whitaker's findings are new that they had never been found before and that there's no underlying data and what occurred to support asked how long it would take to resolve iti through things like diet or exercise or quitting smoking and that simply bears no relevance to how long would a curse of ministration would take to cite the specific portions of whitaker that it alleges teach the claim limitations it wasn't until eliot biomed pointed to i apologise what really relied on in its petition exclusively was examples for the teaching of forty five days or more and so it wasn't until after ellie biomed pointed to the flaws in example six that had an owner response that really came back on reply changed his argument and pointed now to th different portion of whittaker and having not identified that cheating and would occur in its petition it was for close from using it in the reply and therefore it should not be a basis for reversal on appeal either evidence that any of the study subjects in those trials took the study drug for forty five consecutive days example six even put daily in quote marks acknowledging that the examples that the patients in that example were not just saying the drugs every single day and nor has that they argued on appeal that example six teaches forty five days council pointed to the teaching and whitaker of vascular conditioning but even the whittaker inventors don't rely on that teaching they say it's theorized but not relied on under star the other argument that lily made and rethink your reversal was that the board failed to consider all of the evidence to put that into context lily had filed more than forty entirely new exhibits in conjunction with its reply brief and early biomet had sought to exclude about twenty one of those and portions of dr goldstein reply declaration and dr the lot was deposition testimony and the board ultimately  denied that motion is moot because it indicated that it did not rely on the challenge evidence in its final written decision over the challenge exhibits however really only relied on two for the forty deposition testimony and remember to consider that evidence is only appropriate if there is prejudice to lily and here there is none so that evidence relates to the same issue we've we've been discussing which  makes the claims novel so lilly argues that dr but the law clerk conceded anticipation as he stated that the only point of novelty in the claim was the biological mechanism and clearly that's not what the claims are drafted to especially if you read the board's decision as l a filemon does that there was not a finding that as long as the patient suffers needs months then lulu's clearly prejudiced because there's luminous evidence in that record considering our evidence that was pretty or shall error by the board in ignoring evidence that supports our position and the question of substantial evidence there is only one meaning on the record of what as long as  didn't offer different meaning in fact his meaning is consistent with it and so you need to look at what reference means through the eyes of a person of or great skill there's only one meaning on the record any any conclusion that there was no finding that as long as the patient suffers it means at least months cannot be supported by substantial evidence because there's only one meeting on the record for the board about this argument about as long as it suffers and so they don't have a live dispute to maintain at the board they meet at the on appeal and moreover they did express the address as responded on the question of disclosure of daily as long as the patient suffers and so there's no argument about having waived the issue would in fact is that elite biomed doesn't have a life dispute before this board that they were prejudiced by the board allowed in that argument and commish you're getting and they provided that in argument in response to the question of what is as long as the patient suffers means that's a complete non sequitur to refer to what is the meaning of the asker conditioning when the