context especially as applied to patton which was not being considered in that opinion what about the board's finding that in fact there was submitted abundant medical  evidence that in fact there is a difference based on the measurement mechanism i don't think that is a dispositive fact finding the actual relevant legal question the only thing that the board found was that the two methods don't have a specific mathematical correlation aurukun are not exactly equivalent but that does not answer the question of whether the formulation was obvious and it keep point keep in mind in that regard is that there isn't a specific dissolution profile claim there are broad ranges reciting it and that most all that amul would have to show is that those ranges overlap at least slightly and a finding that they are not exactly equivalent is not a sign that they would not at least overlap slightly by a preponderance  erred as a matter of law because it failed to apply the appropriate standard for obviousness and placed an undue burden on me a meal it wasn't and wheels of burden to prove a specific mathematical correlation between the dissolution measurements made by the is in fact within the scope of the pending claim and you didn't show an overly first of all i'd like to point out that these are functional claim limitations not structural limitations and while functional claiming is not burden to produce evidence a stab wishing that structurally similar prior art subject matter would not contain the same functional characteristic in order to refute a crime of the should cases and had to believe otherwise patents  claim same subject matter is not prison is presumed to not change and indeed osha left is presumed enabled as a matter of law so presumptively the difference in the recitals measurement method which is the only difference between  effect of over at least twelve hours which is the same thing that ended was claiming here so what that means is presumptively the difference in the recited measurement method which is that again the only difference does not change a person of ordinary skill arts ability to achieve controlled release oxymorphone formulation is effective for at least twelve hours by issuing the ocean that claims that's what the p t o found is that one of skill in the art would be able to achieve controlled  reciting and in claims in patent claims of physiological properties that result from administering an obvious formulation also does not make the formulation patent all that's not invention it's just observation and finding was that amul had not presented sufficient evidence to show multiple peaks in every formulation of oxymorphone and what they were referring to was that they hadn't shown it in every single immediate release formulation shown in the in these circumstances but but doesn't in here in c mean that it necessarily follows that here the only thing that would have to necessarily follow is that it isn't necessary in the controlled release formulations of oxymor understandably shown in even in the patent data that's presented for some of the immediate release formulations so that it's not related to just certain controlled release formulation that's not related to certain controlled release except so it is related to the active pharmaceutical as you said all that you know but we also said at the least it is inherent to all controlled release formulations and that is the only burden that we actually had to meet and in fact and to itself and the prosecution history stated that it is  yes all i simply know that all of the evidence presented in the i p r was consistent with multiple peaks being inherent to at least the controlled release formulations taught by the prior are the only fact found by the patent on the appeal board that i am not didn't present evidence sufficient to show it in every immediate release formulation doesn't answer the relevant legal question as i pointed out before the fact that you see that at least some of the data in the pattern itself on some of the immediate release formulation is so is that it's not related to certain exceptions and as was explained in the evidence during presented in the  just because you couldn't see it in the certain data that was shown in the pattern from certain studies doesn't mean that it wouldn't be present in all other immediately as formulations if the correct data were collected the problem is those studies are never designed to be looking for or presenting evidence of multiple peaks but of course that your bird it's our bird to show that it is inherent to controlled release formulations we don't have to show it was and it was that we had the data to show it in every immediately formulation that was an arbor and even endos expert admitted that there was no reason to think multiple pieces wouldn't be found in all controlled release oxymorphone formulations the only thing she said is that you haven't shown the data to show it in every immediate release formulation she never said that it would not be present in all controlled release formulations so we met our burden regarding the controlled release formulations and oh should be a stop from asserting otherwise anyway based on their prosecution history statement responded to in the in our patent on the response and that that was what was part of the trial and there was no evidence put forward with respect to in h related to controlled release oxymorphone that is there anything that your expert said that you think would lend support to the argument that they're making all all she said here on her was that she wasn't sure and that and that that that was possible she had no data in front of her i believe that she focused on the question of whether there were data in the record whether there was data put forward in front of her  to say one way or the other and and i think that she could not exclude the possibility that multiple peaks with would be present in a controlled release formulation in fact there are multiple peak with the okami are formulation which is the commercial and body image covered by the claims right so she said you'd have to look at it on a case by case basis you would you would have to look at it on a case by case basis your honor what about the prosecution history argument for putting aside the waiver issue well first of all that was not considered below it it was not for put forward as an argument it is a new argument our position is that they waived it but  the prosecution history does not change the outcome of this case their their focus on the prosecution history they could they claim that and so it made it during the prosecution  he is analyzing whether there are peaks present with respect to you open a yard again a very specific formulation that yes it's covered by the claims it's a new argument that should not be considered but even if it were not change the outcome of the case because it's not teach these court this correlation right that's exactly right your honor that's exactly right and you know these question i mean there are two issues in this case the one is whether the claim di questions that were subject to an extensive record during the i p r trial and the board's factual determination since these issues are supported by in the board's own words a plant abundant scientific evidence  that's at eight twenty six and simply put in this case amiel failed to carry its its bird and with respect to the dissolution and elements of the claim renowned dissolution expert at the university of connecticut school of pharmacy she's conducted dissolution research for upwards of thirty years her or her declaration is it a third three eight zero three to three eight three zero it's supported by pharmaceutical textbooks scientific papers those are great a two six five eight two two eight one three and all of these show that the paddle method it fifty r p m and the basket method at eight hundred are not roughly equivalent the only evidence that anyone put forward was this handbook on dissolution on dissolution said that the basket and the paddle methods are roughly equivalent but there was no citation there was no support for that and and the board found actually the opposite again based on divine and scientific evidence the evidence of that that we ended up put into the case and so there there's not  overlap or correlation between the two different methods with respect to the ils arguments on appeal about the burden the burden of persuasion burden shifting i referred to the july twenty sixth one case magnum oil tools that essentially holds that this burden shifting notion on to the patent owner has no place in that the paddle and the basket are the same same test simply because they are expressed in different in different units in this  as the board found this is scientifically wrong and this is not a case where endo claimed let's say one in which when the prior are taught two point five four centimeters between english and metric units there is an established correlation that is completely in a political to this situation between basket and pat caddell because the evidence here shows that there is no or no correlation between the dissolution profiles do you do you concede as does the director that that appeal and in fact and file the motion say you're disagreeing with the what the p t o director says would welcome back to what three fifteen means on as as it relates to claims that are not have not been instituted on on that on that topic are primary and then if your primary position is that it's an issue for the district court but if it is consider in this proceeding we think as as we briefed that you could take into consideration the overlapping of the prior art related to seventy to eighty two some of the claim language similarity in the prior art the burden should shift to the patent african or patent to need to establish that what they that the functional limitations they're claiming would not actually be in that prior art and and no has never done that have to show is that those ranges would potentially overlap at least slightly and that is not a fact finding that the people have made the only fact finding that they made was that these two measurement methods are not necessarily always exactly equivalent but that does not answer the question of whether they would be overlapped or does not answer the question of whether one of skill in the art would reasonably expect them to be similar and therefore have a reasonable expectation  the subject matter simply by burying or by aiming for dissolution still within the range claimed the percentage range claimed by ocean like that simply measured by one of the alternate us she approved measurement