to leave the court that morning your honour's the board committed to fundamental errors in this case st it aired when it concluded that evidence of unexpected comparable efficacy between four hundred and eighty milligrams and seven hundred and twenty milligrams of the m f to treat law they do not dispute that in order to overcome a prime aphasia showing of obviousness their secondary considerations and particularly unexpected results have to demonstrate a superior result of result the difference in a different kind when they said it like bookends around their discussion of secondary consideration is that their quote unquote evidence of secondary consideration demonstrates the non obviousness of their invention they did not specifically say that the unexpected result they all demonstrated not obviousness so how can you say they have to show all of them in order for for them to establish an obvious your are they talk about the their strong evidence of secondary considerations collectively they did not talk about their individual secondary considerations like they had done in a previous i p r brought by the coalition they just didn't say that and so they approached it the way they did which is to say there's four pieces of secondary considerations those four pieces of evidence are going to put it up on the scales and then once it's up there the scales are going to tilt and so we responded in kind we said that they hadn't proven each of the four it was an it was an evident saying you hadn't proven h of the forty one of the four is an expected result so i guess i don't understand how you can say that you didn't have an obligation to raise this difference in degree and difference and kind in front of the board with without having forfeited it well your honor st of all this court is has been clear that when the board passes on an issue it is not forfeited and that's what happened in this case the board actually decided this and so we're entitled to appeal it and we're not asking this court to consider evidence that's outside of the record as was asked in red line detection which biogen cites in its brief nor are we asking this court consider something that wasn't passed on below which is what happened in singleton the other case they we're just asking the court to review the actual decision the board made and it's true that if we had failed to to rebut each one of their four secondary considerations and the board weighed them all collectively we would have a hard time standing here arguing that the four collectively cannot overcome our obviousness case even if proven that would have been waived but the board didn't walk down the path either party laid out the board stepped off the  path and we think it did for pretty clear reasons which is that our showing on all of the other secondary considerations was very very strong and unequivocal bundled what's what's what's the legal authority that you  put the position that you're making right now your honor that when something is actually raised by the board that we can appeal it i think that would be life style enterprises we have that in our brief and as for whether or not they're showing of comparable efficacy is enough to overcome a prime official showing that that's very well spelled out in this court's law in fact the gal's erma case that we cite in our brief is remarkably close to this case it's a situation where the evidence was that someone of skill in the art would have thought that one percent treatment of the topical solution was the optimal treatment method for treating acne that three percent would have been increased side effects and just to me like you're arguing a degree in different than in some point the difference in degree is insufficient to think so judgment are two things we we are arguing that but the difference in degree is subsidiary to the superior result so st of all you have to have a superior result which they haven't shown but even if you had a superior result that superiority would have to be a difference in kind of not degree so they have two problems their st problem is that they haven't shown superiority at all but i hear her over reading these difference and kind enough to agree cases and  you actually don't spend a lot of time on any of them and your and your brief and i think it's because they all go back to in rather and in reality only talked about that being the case where the result is different in kind from something that one of skill in the art at the time would have clearly under your honor that is relevant to simply a difference in degree but you also have to show some amount of superiority which they haven't shown so so even if their difference of degree is enough and and even if you know we can argue about the difference in degree in a factual situation like this because they would say and i think this is implicit in your honour's question that nothing was expected from four hundred and eighty milligrams and so anything would have been a difference in kind even if they could argue that they're still stuck on the superiority issue they're still stuck with the problem that no one would have fixed no one would have expected or i'm sorry let me say that different they're still stuck with the fact that they haven't shown any security already and i think it's important to bear you're saying that that a lower dosage that there's no benefit to a lower dosage i'm saying your honor that that certainly wasn't proven or argued in this case the four hundred and eighty milligrams who had any benefit whatsoever they have pointed to a statement made by their prosecution counsel but that statement was not an unexpected result of four hundred and eighty milligrams that statement was that four hundred an email eighty milligrams would have been what was unexpected is that it was clinically equivalent to the seven hundred and twenty dollars milligram dosage in terms  that it was well what the board found is comparable efficacy yes and that is that is the only benefit the board found that there is nothing in the board's opinion nor should there have been because there's nothing in any  biogen argument that four hundred and eighty milligrams was better than seven hundred and twenty for any reason related to side effects in fact their experts at that trial said the opposite their x percent ones killed me are would not have understood there to be a dose dependent side effect profile they actually argued that it would have been obvious to go higher than seven hundred and twenty not lower but again they're stuck with only comparable efficacy and if you consider the role of unexpected results and really all secondary considerations  that amount of increase was significant because bioavailability was the problem with the drug in the st place so yes i think it's fair to compare what the unexpected result is that the whole invention  obvious in the st place but here they haven't proven that what they've proven is that a lower dose has comparable efficacy to the known seven hundred and twenty milligram dose that is as much as they've proven and that is not enough to overcome a showing that would have been obvious to optimize dosing in the face of evidence that showed seven hundred and twenty dollars milligrams as a successful treatment method for m s and respectfully to the board three hundred and sixty mill and that nd point is related to the nd point about the shimmer of reference the board had an obligation to show its work it had an obligation to wrestle with the issue that the parties were disputing in the nd ground  the board said that your honor but the board said that because of repeated statements by the board that there was more than v m s and few matter and this is clear at pages seventeen dollars eighteen cents of the board's decision and why is that not substantial repeatedly that the board wants the evidence as before at the board is free to consider it regardless of how the parties fashioned their arguments sure honor their they're free to consider however they want but they have to under the a p a they have to lay out a road map to facilitate discourse review and in our appeal you know biogen has has has challenged us for not making a substantial evidence appeal here but but we can't because we don't know what the board did we don't even know that the board understood the the issue  we had evidence and biogen pointed to the same evidence that skilled artists and were actively studying human or they were actively studying the role of the m f we had evidence that that  that a skilled artisan would simply read shamrock and say aha that's the amount of the m f we should use our position is that fume and arm and shimmer to thousands for discussion if you were taught something to people skilled in the phases of doses not two ranges of those as your honor that is not what the board said the board said over and over again if you look down on page seventeen sentence after sentence the board simply argument that d m s o is the most active ingredient but then found that there were three other active ingredients a cumulative total of forty four percent of the composition and found  another of our experts are on or again offered by s that says that doctor when who testified that the person of ordinary skill in the art could make no determinations about the relative contributions articulate the reasons for the finding but if you look at the finding itself and the portions of the records that are cited you will find that there is number one ample support certainly substantial evidence to support finding the specific citations are to among other things experts that we offer to the board and who offer express opinions on the consequences of having a composition of four different compounds rather than monotherapy of one and the reasons that didn't make any drawing conclusions from that and overall obviousness determination but when when you turn to them they claimed a p a violation here is that you are somehow obligated to consider all of the secondary consideration that had been offered by the past and that is incorrect both as a matter of law and a matter of fact it's incorrect as a matter of law because as the panel knows  it can't and it can't for this reason if if we're correct in our understanding the law which is that any one secondary consideration when consider under graeme and psycho been praying and one consideration can provide important information about what is there an invention is not base or not there's no obligation to move to the other three and that happen just interrupt you center i think you're going back to unexpected results anyway this is judges you're your friend mr kelly argues that for unexpected results you need a superior result just a comparable result or comparably better result do you agree with that as a matter of all i think your honor what we agreed to is what we agree is that the articulation of the requirements by this court is you need unexpected results of the four hundred million four hundred and eighty dollars milligrams per day was unexpected and it's important to things are critically important because it can i just can i just stop you there just so i understand your answer that sounds like you're at least implicitly saying the four hundred and eighty doesn't have to be better than the sum of money it doesn't have to be superior to it it just has to be unexpected reason that right  demonstrated significantly expectedly superior results it was better than the closest dose in the prior art in effect of three hundred and sixty dollars milligrams  strong result matching the performance of the mass much higher doses those findings are really not challenged in part because milan has abandoned the arguments made below and stayed they say two things that the four hundred and eighty dollars would have that level of effort to see what is a response to mr kelly's argument that you had to show not only that the four hundred dollars that it was unexpected that it would have that efficacy but you had to prove that you can bring any unexpected results argument to this panel today if or otherwise if i had a obviousness contention that i lost at the p t a or in the district court or at the i t c i could come to you with a different combination or a different articulation the same combination and that cannot be the result the nd thing your honor is that the board's findings that were made rejecting the arguments that milan did may but now has matching those of the seven hundred and twenty dollars milligrams per day dose in phase three or unexpected and the record evidence that the board relied upon demonstrated just that are two new arguments on an expected results one i would call the similarity argument and the other right to call the difference in kind or difference in degree argument both of which are forfeited let me just say one final thing to go back to judge ran your question i don't think that the board would be obligated to consider all the secondary considerations if it found a particular secondary consideration to be so compelling that it did not need to reach the others and i think that's in fact what occurred here and it occurred on the record where the evidence it was offered on the secondary consideration which was so compelling on expected results was was evidence that was provided separately by both parties it was arguments made separately by both parties absence of a secondary consideration cannot prove obviousness it is only the presence of a secondary consideration that can help demonstrate  correct and i believe it is then what that means is if you have a compelling secondary consideration such as unexpected results you need not reach the question of whether the other three in this case are present because even if you assumed the worse for the pen even if you assumed that they were absent it would not have any legal significance and i think that's the reason thank you mr kelly thank you judge your knowledge just a few quick points mr levy in discussing the unexpected results findings of the board in order to make the argument he's making now he has to boost up what the board actually said to the board made no findings about three hundred and sixty milligrams what he was pointing to on page thirty eight dollars to thirty nine dollars of the board's decision is simply the board's recitation of their evidence and that's not a finding by the board any more than the board's recitation of our evidence is a finding the board finding about unexpected results is at the bottom of page thirty nine dollars and what the board said is that it was persuaded that the weight of the evidence is sufficiently established the comparable efficacy between four hundred and eighty milligrams and seven hundred and twenty milligrams well if that's what the board says then why isn't it fair for us to consider the the entirety of the evidence that the board oversights because you're owner of the board fact it said that the weight of the evidence and it had just laid out all of what i considered that evidence to be sure yes your honor and when the board does that it's the fact finder and so the board says we looked at all the evidence and here's our finding it's that finding that this court can now rely on when reviewing to novo the board's weighing of the secondary consideration the only one it reached the board reached against our prime aphasia case that's  the nd half of the case about shamrock we're not saying the board did an insufficient analysis when it did the wayne were saying it weighed it incorrectly that that's the comparable efficacy was not enough yes it should have looked at everything else that biogen raised if it was going to go down the path and biogen let it down but to the extent it did what it did it did it wrong because its four hundred and eighty is merely comparable to seven hundred and twenty  the board says this one secondary consideration is strong enough that we don't need to even consider the others that that's the end of the encouragement of it if we were to say that any time secondary considerations are pro there must be a consideration of all of them then and then i think we're we're changing the landscape of how courts and and administrative bodies consider these issues so your honor just to be clear what we're saying is not that they have to do it every single time but that if they're only going to consider one secondary piece of evidence if they're going to shortcut their analysis then we can appeal vat one piece of analysis and that gets reviewed to novo and we're not suggesting that the court should send this back and say the tab go consider the other three and then weigh it again we're asking this this court to do so is two things one to correct the board's mistake when it came to the legal analysis and did about the unexpected results meaning that mere comparable efficacy could not overcome our case and then re man for the board to consider the whole sum of the secondary considerations argued by biogen the last thing i'd like to say just in the few seconds i have left is that should this court affirmed the district court's decision it need not reach the issues raised in this appeal because the entirety of the dispute between biogen and milan has been raised before the district court there are no days that aren't in the district court