likelihood of success based on the prior art here as a whole every peep has a whole person of ordinary skill would not have predicted that a seven and a half milligram heart capsule to mass the two a form of utility that would be sufficient i submit that unleashed record the patent itself says that if efficacy was approved and shown in both well it happens that that was  efficacy in terms of both properties the prior or the nicholson references they tested the what they call the quote effect of the those that they tested and what did they measure to test that effect that they tested medicine they were talking about both properties of the as getting back to the prior art form i suppose we submitted at the prior art suggested that hard capsule doses below fifteen milligrams were ineffective because they didn't address and do both of those things before we get to that evidence to say one quick word about the burdens of the birds that are at work here under the liberty lobby supreme court case on summary judgment a court must view the evidence through the prism of the burdens assigned by the particular substantive law because obviousness requires proof of facts by clear and convincing evidence the question here is whether the record facts clearly and convincingly work the judgment of obviousness without a trial i submit that that is not the case here if we look at well the prior or and  formulas three times a day not for use fewer than three times a day that would infringe your patent right but i believe so because the claim doesn't require any particular rigor will why then did the references to the european and indian reference the italian immediate references why did they not anticipate these claims by virtue of their reference to equivalent amount drug use two and three times a day well first of all those references tested the product during the day as opposed to taking a very very minimum dentist this is nothing in these claims as in him a day or night we include the properties of the product which is that it works and its effect are treated so that's part of the invention as a whole so you would say if if if that in order to establish infringement you have to show that these claims actually have to bring in evidence that these particular tablets these alleged infringing tablets do actually work well in making a seven and a half year old rare tablet would be an infringement of record marks and that the question is why first in the one group of patients tested in the first nicholson reference of a certain age in the other nicholson reference where they were testing for a drug in older patients it not only decreased total sleep time but it increased sleep  latency exactly the opposite of what a sleeping pill should do so we take that reference and to combine nicholson references teachings you look at the magic teaching which says to a person of ordinary skill five milligrams doesn't work don't  a ten perhaps a fifteen but when it almost looks at all of the art as he must do this person of ordinary skill he knows because from the other art that five doesn't work and that twenty is preferred over ten by the nicholson references so at the he stands back and says well what does all of this prior work mean to me what is it telling me what is it teaching me to do you have and wherever you have to be a difference that british reference in its pref tells the person of ordinary skill it warns him you've got to look at specialized publications he were only a pocket book easy quick reference you got to go look at it at the specialized publications to determine prescribing information that coupled with the direct one way or the other references disparaging five disparaging ten and having a clear preference for soft capsules of twenty in height i would submit does it direct the person to try or reached its own conclusion of how it that should be interpreted by a person of ordinary skill it judge said i think it's a comprehensible to me that an expert would say it doesn't mean what it seems to say it's face while expert tried to explain why it doesn't mean what it appears to mean on its face the judge big skloot did the evidence because he felt it was not helpful only then was the judge able to conclude on his making his reaching his own determination  what that reference meant to him that was improper a summary judgment and that's the second issue in that case should it at a minimum be remanded and have a trial so that effective court promptly can consider all the evidence including our properly submit d expert office the the court also never got to our arguments of unexpected results the court improperly in our view considered the issue of second of commercial success by conceding that it where there was sales and commercial success but to rosalie attributing the sales to the availability in the prior work of no doz products well there was no seven and a half milligram available and we had evidence from a medical doctor saying that the reasons doctors prescribe the seven have milligram because it is because of clue the clinical benefits they give to the patients using that framework the judge found that it would have been obvious and the judge dismissed regarded the second prong of our efficacy argument namely he said he focused on the sleep latency the time he says to fall asleep disregarded are however there was no evidence about her qualifications or whether whether and how a person of ordinary skill with interpret that information i would say aware that if you step back and look at all good or all of the prior art i repeat seven point five there is a peak of efficacy that is not present at either five or ten milligrams assuming the same capsule in each case not precisely what are you arguing and what the test on an entirely different group of people you didn't have evidence so far as i can see at least it's in the record that suggests that efficacy comes down with respect to your group of people correct there's no you there was no you know there's no basis for saying there's a peak at seven point five i'm not i'm not arguing there is a piece of her that's all i want to make sure i understood that when i asked you before maybe you didn't understand my question in an unclear but i understood you to be saying that you would discover as we do him in some instances  because based upon what he referred to his prior results with heart capsules he would have guessed that be lower than he would have guessed the cut off would have been some at some other point that's what the patent sess what i'm also arguing is that while we did with the same patients make it and give them the other two doses i'm talking about the art helps fill it that missing piece of information why do we say that magic says five milligrams is of no clinical importance there's nothing in the record to dispute that you are because some references in at least a group of older patients say ten ten milligrams soft capsules get exactly the opposite result of what you or they decrease the total amount of time in a person's state of sleep and they increase the american time it takes to fall asleep so when you consider those teachings in the prior art a person is going to say to himself role and has the exact same time as them it's just a aptos version and there is no dispute at the district board that there was a strong motivation at the time to go to lower doses and that the modification of the rest for all product was trivial and based on those specs these product claims are obvious furthermore the district court found that the product claimed too obvious to try there was a known problem in the ark which the italian i apologize the reference found that five milligrams was in fact effective to treat insomnia and then we have the undisputed fact that five and ten milligram overdose doses of hypnotics at the time this is evidence not only by the b n f but there was a national institutes of health consensus of one nine hundred eighty four which was asking physicians to prescribe the lowest affected do didn't know whether or not seven point five was in fact the lowest dose what physicians are asked to do is to minimize side effects and balance those with the benefit as you noted that motivation here another just push the pushes too low the pushes that in their product regimen better because it was half and fifteen which was half the thirty and those were the two products they were offering at the time just to address something that mr rick raised with respect to the  enough that the argument that they made before the district court was you know whether the b n f made a compelling scientific case to use lived to fifteen milligrams or whether it presented a compelling scientific case to go to doses lower than fifteen milligrams and i think the district work properly found that that's not an appropriate legal standard the reference teaches what it teaches and this court's recent decision  was we did not have absolute scientific certainty that seven and a half milligrams would work but that's not the law of law it's reasonable expectation as you are saying refutes never dispute as to whether his misery is  or that there was no reasonable expectation of success given the fact that you have references like to be in a recommending to physicians to go to doses lower than fifteen milligrams and that's an important thing here  recognizes tiger's new argument was there is no reasonable expectation that seven and a half would work but the art for the district court was whether there was a reasonable expectation that doses below fifteen milligrams will work so this is really a new argument to tyco is presenting for the first time on appeal but even if the court were were to entertain that argument i would submit that the prior art doesn't fact demonstrate that there was a reasonable expectation of that seven and a statistically significant increase but certainly it didn't teach away from going to doses lower than fifteen milligrams and furthermore you know whether or not it showed an increase in total sleep time is legally irrelevant because we're talking about product claims here is your honor keenly unserved in as mr ray conceded you know if our dosage or anybody else's dose it's at some argument not only as type a way of the argument here on appeal by not raising it below but it's directly contrary to its position below in a strictly contrary to the  determination this trickle significance with respect to various brain wave determinations and i think magic checked has retained no statistical significance even though there was perhaps a a difference in experiment is that the district court gave full credit to mete check teaching away from going to doses lower than fifteen milligrams just on balance which is what the wall requires does a prior as a whole teach way the district court found that it was just insufficient to alway the overwhelming amount of evidence that in the show that not only did the prior not teach a way towards lower doses it was teaching toward  that type of teaching way would be compelling to a decision about obvious to us but that's not really the situation we have here because the overwhelming prior are taught towards not away   decorations that your have to do a sleep study to determine whether it's the only reliable way to determine whether a particular drug at a particular doses works as a sleeping pill the in fact he excluded ok but and to summarize we have priority which says five milligrams is it doesn't work in the clinic it doesn't put people to sleep or whatever you effect you want to talk about we have other references the nicholson references which and it leads some subjects of their tests were totally ineffective they increased the time it takes to fall asleep and decrease the time the person stay there sleep the district court took each of these things individually and we submit didn't consider all these teachings of the prior as a whole and when one does that and when one considers court well the end point is when it's in re judgments a legal question would we titled look at the expert you put in a bunch of them and the district court said i've looked at all this evidence i don't think there's a jury question here that's a question of law for us to reassess and correct consider what he says about the matter check teachings what he considers about the necklace and references and then when you put all that through the prism of clear and convincing evidence i submit that you're not going to come to the conclusion that this was a clearly and can facts demonstrating obviousness proved by clear and convincing evidence there's too much evidence going the other way the district court ignored all records of unexpected results he improperly discounted the nex