industry immediately followed in the wake of the disclosure of this patent by making different kinds of those two prime metal up rubber nucleus sides and it stopped hepatitis c s the virus in its tracks and what stops it is th pet system worked in this case st path has to do with the rule fifty violations that we set forth in our brief in the nd has to do with the district courts misapplication of the law and requiring a person of ordinary skill to make facts the jury found in this case they're supported by the evidence there are eight there one sentence will probably continue i don't know how much time we have to cover the eight can you talk to me about the numbers what is your number and terms of the potential number of come ons so st of all that's a question you might better ask my friend on the other side because it was their burden to prove the court said the number was unclear to me that should be enough with regard to if you're going to said state what it may have said it was unclear metal up rival nuclear science work and that goes to one of the things that the jury could have found the jury could have found that every two prime that's what we go back to my question for numbers what is your position about what number the jury and well it is it is important but what's what's important about the number is which ones of them work which ones of them actually work well and what's and also important about the number is how fast you can get through them well not there well that's why i want to go to the facts because i think that before i can have a coherent discussion with you i can do this very quickly you know i i'm not going to overstate the record i don't have citations when you say what matters is what it works but you have to it ok and i'm just still looking for a number you're trying to defend a jury verdict and we want to put ourselves in the place of the jury and see what number they were working with do you accept the judge you said the decision yes they heard all of the evidence you need got to credit your evidence and that we die if we're trying to just cern what number or what universe we're talking about and we've got to have in our mind the number if you  an impediment to enable one says that it was powder says that judge bryson's euro cup opinion which was affirmed by this court under rule thirty six says that screening the question at that point is is screening undue experimentation the evidence in this case was that even if you assume that you were dealing with a universe of thousands screeding why do all these assuming they're all in the library and if you do any synthesis no but let me again don't i viewpoint herb the jury could have concluded that all two prime at the upright nuclear sides were active against the appetite is the virus so that the numbers don't matter screeding was irrelevant infect the pet and call screening simple question is does this patent enable a person of ordinary skill and the answer is yes when you just give you what is the connection between that and whether it works or not for the intended purpose and the claimed purpose which is h says three pages later a seven thousand three hundred and fourteen that he believed his embodiment would have anti h e b activity before he made it because quote that's what it's made for this was by the way recognized as a fact dispute by warrior and that's it a thirty seven thousand eight hundred and thirty he says in closing dr some of those he told you all to prime up metal rubble nuclear sites would be affected there's a conflict in the evidence you should you should believe nuclear side would be active against the hepatitis c virus and quote that's proposition thirty four dollars was my point earlier if in a screening was necessary it would have been quick and easy  disclosed that substitutions could be made at any position in the two prime down position without affecting the expected activity that's an appendix eighty column twenty two dollars of the patent also only as concession at the beginning of out of this case were also in a very established art nucleus i had chemistry nucleus and chemistry had been established for over thirty years mr clarke himself said you could always make any compound you wanted to make it was routine and a very disclaimed fluorine at the down position was made and rejected claim construction it then became resurrected in the trial but this is remember that the enablement here is not to enable a two prime down embodiment it's to enable the full scope one is at least with regard to the chemical used in the method of treatment has to enable the full scope but it also doesn't able for it and it enables florence were pretty much all the reasons george newman that you pointed out and in  wasn't a phantom statement if that if the claim is made that we've over claimed with regard to that being a phantom statement all apologized to i think you should point holidays to the district court for that well but the larger point here is that the district court did on route fifty result of factual disputes and she should proceed with regard to your previous question there about the or actually if it was just human also about the path through the patent i also would appoint you to mr clarke and dr autumn's testimony where the district court said there was no evidence that a reasonable jury could have concluded that clarke actually used our patent in order to track right down to the floor and body meant the evidence is actually to the contrary dr auto were looking for what they were calling a loophole and remember they had the specifications but not the clays and they see that in these examples all these other halogens but not fluorine are mentioned there so they go off we think we found a loophole testimony that i think we talked about i mentioned earlier in the day with your own expert saying that you have to have stock yes i think it has to mean testing is routine so it was a jury told yes we've tested all of these and questions here because the factual record is so so critical in this case even if i'm wrong even if it was not reasonable i think it was based on the testimony of given for the jury to conclude that pilate had not met its burden on that particular factual issue let me then assume that we're talking about the that there are some in operable in body as well this court case law cases like atlas power cases like watts allow for a number in operable embodiments and they can be scary so long as the screening itself does not constitute undue experimentation what's the record evidence in this case with regard to two prime methyl up instead of mentioning three back we don't know the the actual reason it could have been as simple as a typographical error if that was what was intended it's in several of the examples you can see the type of graph it is that is the sort of thing that gets if you look the examples are exactly the same they could have been just paste cut and pasted but i don't know that for effect what i do know is that the claims include florida and the patent point two to four just the last point the chief judge proceed because i want to get to the thing that is that you're stating concern about here let's say i'm wrong and that the jury was not allowed to conclude from the testimony which is there that all true prime floral excuse me i'm getting myself confused compounds work here primarily to pry methyl up compounds work against the c v virus let's say am wrong about it let's take it then a look at the testimony about what screening would have been necessary other than other than general comments about you can't know in of course the understanding there is for certain it unless you screen something because people are talking about making clinical embodiments and getting through the f d a here's what  with regard to that they there was a list of two hundred and eighty four to crime mental up in body parts that is in the appendix  and i don't i think it's i don't have the appendix site for the particular list but it is the it is a list that came from our client from my dentist dr seager their experts a demonstrative on the demonstrative is not part of the record it's not in our record here i'm informed that he's cherry picked forty inactive compounds from that list of two hundred and eighty four but he only talked about four in the record and that's eighty three  least hadn't been shown by the party with the burden of proof to have an activity he didn't say all to eighty four didn't work and if you think about this forty inactive embody that's if that's true that's absolutely accepted as true after a jury considered this record out of two hundred and eighty four dollars that is well within what this court allowed and wants with regard to screening out an operative embodiments that case had depending on the version of the facts that the court three undisputed legal points there are three undisputed facts that drive the entire enablement case and by the way written description which i don't want to neglect to get to this morning in our favor and all of those facts came out of the witnesses identical and in particular its experts and i out the numbers on each of this on the basis of undisputed testimony so the court asked the about the size of the candidate pool so that's playing one of our or increment and this goes to judge  numbers what do you say to his remaining point ok so the remember that the next critical question is what proportion of those are active he's now telling the court a jury could have concluded they were all active now i'm surprised to hear this this was never in dispute it was actually a key piece of identical says argument that the universe of claimed compounds that is compounds that are active w identical whippets they teach that the universe is extremely large and on its face that seems to be the case my concern is that it's hard to find a generic the universe there are two universes we're talking about there's the universe of potential candidates everyone agrees that's huge and i don't exclude seeds it's in at least the thousands then what proportion of what subset are active which would then which then triggers that they need to do this iterative testing and screening identical snow says they were all active a jury could have found that their own witness i will quote from from  to our written description or given but it also relates to how in the world do you figure out which these billions or thousands a possible candidates how do you figure out from the specification which ones are going to work and that leads to a key legal principle that identical is not even discussed this morning that is you have to get it from the specification there is a teaching  be the the answer i think the easiest way to see the answer is to look at the sex of our brief because it describes what was clean and so there is a sugar with six possible variables and then two bases five more total leben variables all that was claimed is ok we're going to fix one of those variables at map and start at the top the undisputed testimony was even if what you were doing is focusing only on the things that identical says oh an inventor said you would put in place of these question marks you're talking about billions to start at the top it would take forever construction sense but in the sense of not guiding anyone so it goes both to written description these are blase marks in the wrong way into what a person of school in new york would do with these candidates ok what i  want to take you back to your opposing counsels universe argument you reference page forty six of the blue great on that take you to the netscape where the  millions satisfied there are fine structural limitations and they say the court cited no evidence for that conclusion so my question is is is there in fact record evidence to support that millions number and i think part of what your answer is i guess answered that question but it did have more of what you gave above part of the answer that question but yes there is more so st of all on the structur limitations their own expert dr moyer said that he agreed that if you theoretically went through all of the variables you would be that he was asked this question  course if you discuss all the structures that are mentioned in the five hundred and ninety seven not and so that brings you back to that page i was showing you all that they did was to fix that one point now he did not create a material dispute a fact by then saying they glee that the number is significantly smaller in reality a person of skill would know it to be smaller for two reasons st significantly smaller is is still you mean billions that's why i said that some of them could be poisonous well no no he was to he was just talking about activity not about poisonous millions is significantly smaller than billions it's at that was in time smaller your honor is twofold st it requires you to go through the iterative process of trying one compound at a time st making whatever and sometimes that's how the system works you just  from which one then develops and any normal company would then embark upon a research program to figure out what other changes to the molecule would what might be separately p claim that is commensurate with what they actually discovered and what they discovered was to pry metal up works but only a small portion of molecules with two prime metal up will work so now you have to figure out what other changes are going to make but but i do want to get to this nd is directly to the point you were making earlier and that goes directly to written description in some ways written description is a short cut to the same result you don't have to wrestle with how hard it is to make two prime metal of the a side by the way that's part of the answer your question you've got to make all of these billions or thousands of compounds to use them you don't have to wrestle with how hard it is to m are attaching a fluorine would have been obvious you don't have to wrestle with for one version of our written description argument it doesn't even matter how many viable candidates there were you can just focus on the spec itself what  asked for specific nucleus sites and thousands of candidates for further research whether you think about it in terms of blaze marks or close lists you end up in the same place for the exactly the reason you ar between the specification and the claim the patent declares quote the present invention is quote the nucleus side as described in one of the eighteen formulas there was eighteen formulas actually what the inventors were after the drug that would actually work so one thing obviously omitted is to prime or zero down the inventors omitted florina halogen it to prime down while including the three with just this one minute of framing and that is identical is striving to identify disputed that x but it cannot prevail and less that identifies material disputes back disputes a fact that will actually change the result on both undue experimentation and written description we prevail so long as we persuade this court that the universe of compounds that is canned that it compounds was at least thousands which they have conceded many of these thousands were ineffective which they conceded below and even in their brief on appeal and the patent doesn't teach which ones are effective and which ones are not the st two points are conceded so it all comes down to is the patent identical never points to anything in the patent that teaches how you separate affective n s p by the change terminators from ineffective ones it says n s a spying b that's it identical but it doesn't tell you what to draw from that for these reasons the district court after a thorough review of the record came with it came up with the correct conclusion and none of the facts i den explains to that it claims are disputed or actual material disputes and many of them are actually undisputed if there are no further questions i think the court for its attention of conflicting evidence in this case if you just look at net nothing more than the testimony of our two experts dr b francesco and dr meyer you'll walk away thinking how could this judge have taken away this jury worked you shouldn't wha doctor myers testimony about the unpredictability of the nuclear side effect of nist was also not tied to our invention in fact that same page of the transcript points to the novel aspect and says quote there were surprisingly high active this goes to the point judge newman that you were making with regard to my friend here during his argument we made a major contribution here our patent enabled commensurate with the scope of our claims  of letter writing the earlier this week predictability what could a person of ordinary skill in the art predict in light of our patent disclosure a person of ordinary skill in the art based on this record based on the testimony of witnesses w predict that all or at worst for my case would work if we were in the world with most that takes us into ones and that was powder where routine ordinary screening doesn't constitute undo experimentation for enablement with regard to  written description there's a lot of overlap the judge heard that said there were factual issues goal or on that but with regard to written description i just want to point to support just one sentence from the in bank area decision the written description requirement and he i quote never created a heightened requirement to provide a nucleotide by nucleotide recitation of the entire genesis of claimed genetic material it has always permitted the disclosure of structural features common to the members of