other emotions on the market at the time right there were not any other ocular emotions there were not any other ocular motions on the market at the time and there still are no ocular steroidal emotions are right on the or steroids but he tested the emotion against several other formulations including the solution that the reference elsewhere describes is what being was trying to improve upon and found that the emotion was inferior and our expert not knowing making a different tissues right so one was inferior to the other yes in that combination right right so there was for example a castor oil with cycles for in a castor oil emulsion which is the most in here with cycles for a solution and that could be a solution w target to shoot and in that experiment you can look at page eleven of the boards opinion it's the top left bar chart and it shows that the emulsion is the fourth out of five best formulation and it's substantially worse than the solution the doing is actually question the legal error that we're that we're discussing here as to the motivation to combine analysis is the board's simple are so certain that there would have been a motivation without any explanation or reliance on expert testimony for prior emotions something doesn't discuss suspensions at all or what can we do about the fact that the board expressly found that doing broadly states that emotions are appropriate for delivery to these things well that's a that's a separate error that that the board in particular the board said that in response to our unexpected results argument we explained that the doctor present a emotion exhibited four times bi emotions to exhibit enhanced bioavailability to suspensions no matter the active and the reference that they relied on was this of eve reference which rhett ran an experiment on in the method sense which is a non steroidal anti inflammatory drugs found of the actives are very different not in fact bioavailability in the board rejected that argument based on two references castleman else which only which don't mention suspensions they only look at emotions versus solutions and so that by itself is arbitrary and capricious for two reasons first of all it's a non sequitur the board itself recognized that the question is whether emotions generally exhibit enhanced by availability over suspensions so emotional over solution references it is just a logical error and the second problem if you're going to for some reason look at emotions versus solutions surely you can't ignore during which teaches that access to the to the as to the target tissue of die for present a emotions are at least this castro emotion in particular is going fear to a cycle dextrin solution so you can't ignore the primary reference in the case when you're trying to prove an already point that the fact that emotions are better than solutions somehow demonstrates that emotions as a general matter are are better than suspensions right so so that's as to the board's unexpected results analysis that's just an independent arbitrary and capricious error that supports affirmative but i before i run out of time i want board accepted that expert testimony could be sufficient but the board found that other f or other evidence contradicted the fact that this would have been an expected result and the evidence is what i just described as the reference with said right that our expert explained wouldn't have wouldn't have told told you anything about a steroid all emotion versus suspension result and then these other references about emotions versus solutions that are first of all arbitrary and second of all don't even mention doing right so so the the last of the other error that i wanted to discuss is the fact that the board completely ignored the real world objective evidence of non obviousness that we put before it and that it never even acknowledged let alone considered first we demonstrated that there are today i believe six steroid words and look at whether a person foreigners or wouldn't combined at the time of the invention that you absolutely do in the supreme court and this court have explained over and over again that the way to guard against hindsight bias in that analysis is to consider objective real world evidence in the market of non obviousness and this is objective real world evidence in the market of non obviousness as i said before first of all nobody has migrated steroids to emotions if their theory of obviousness is that itself which is like a motivation to mine doesn't necessarily have to be exactly what your motivation might have been so they might have had the motivation to combine those for purposes of using it as an uneven brown or print for that years of life i mean time i'm talking about the basically like a secondary consideration real world objective evidence that test their hypothesis their own theory of obviousness here so for example if if it were true that emotions excuse me suspension exhibit particular problems and that it would have been obvious to look at dame and say ok i know how to solve those problems i'm just going to make a case for emotion why hasn't anybody done it in particular why has an elegant dings assignee that actually markets things own the cycle spring still market a a steroid all suspension now i'm not saying that i mean if we were before the board i would say that this is conclusive evidence of non obviousness i'm not saying before this court it's conclusive evidence product and there may well be your honor that's a question for the board right to get the board has to consider this evidence and make a finding on it both as a matter of patent law as and just as a matter of administrative law this court can't review the board decision when it hasn't actually responded to probative evidence there's another piece of evidence that the that the board ignored which is their own experts patent application which invented a combination of cyclists for him which was beings active and a steroid in an i drop would do when looking at eyedrops and looking at it right and it was obviously not obvious to him that the going to play not obviously not obvious to him that the way to formulate one way to formulate the drug can we start with that because objective in evidence because it is kind of surprising that the board doesn't even mention any of this real world evidence and yet our case is very clear that that's very relevant to decision the board considered this hindsight argument that sense he was making and found it just not persuasive because they hadn't was not to a method of choosing  method of choosing emotions so it actually did consider the argument it acknowledged had no winners position on this issue and simply decided that it was not persuasive because what sent you is not just considering regarding the veil ability of current commercial formulations and dr charles application so they don't consider it it came up in the oral argument as well so the board had an opportunity to consider obligation to to engage in reasoned decision making and how is a statement that we considered seven pages of argument and we rejected reasoned decision making you want to because well the first the thing that i want to point out is the weight of this evidence relevant that no one else has picked in the motion after all these years and yet you turn around and say but it would have been really obvious to do that because your honor as dr shah testified there are several reasons why somebody would not have picked an emotion one of them he said was the use of a blocking patent and if one looks at the facts that thing was issued in one thousand nine hundred five claimed as an example cycle scoring in an emotion and if you consider the fact that bashing  long was working on a formulation that combined cycles foreign with the soft steroids if there are reasons why just as dr shaw said somebody might not have made an emotion center has not pointed to any statement in this entire time where anybody has said we did not use emotions because emotions were bad or that we did not think emotions and appropriate what about your what about his his point that  that it is suitable for delivery of medications to ocular tissues and i can point those out it's a joint appendix six seventy five joint appendix six eighty one to six eighty two six and six eighty seven and aid to discloses i flew pregnant suspension and discloses expressly that the pen it was used to treat inflammation and allergy disorders of the i and this can be found in the abstract as well as in these disclosures are different parts of the i mean if you go through this record there's a lot of just gushing the idea that need to be treated and which ones get more irritated by certain formulations i allergic which treats any to sort of the i this entire conversation that send you this argument and you have made regarding this targeted issue is simply not is a red herring because both be a free patent as well as being both teach disclosures of being the express disclosures of the for your patent and the arguments made by dr shah make very clear that both of these pieces of prior art covered  simply no minimum therapeutic value that it has to be so so these arguments are simply just centuries attempts to attempt to steer the conversation away from what the board found which was that there would patent and that the other point that i would like to make is that in terms of this real world evidence that said you keep pointing to all of this real world evidence evidence they are you should be  opposed i should have considered in its motivation to combine analysis yet it's all post filing evidence the patent that sends you spend so much time talking about aftershocks what happened objective in dishes is often post finding evidence that's the whole point is that you've got real world evidence of what's going on and and your whole point is to say are we over and doing our assumptions with respect to motivation because mine is are we putting too much hindsight bias into that and so you look at the broad scope i mean obviously and i should use the word obviously but like when you're talking about for instance the the success it hasn't actually articulated an objective in this show that it is applying this real world evidence to this real world evidence that it is talking about it actually is in its recent reason to motivation to combine and reasonable expectation of success so is the evidence somebody should consider when looking at motivations to combine and reasonable expectation of success which are all in the prima facie case and so all of this evidence that send you is actually relying on the current what  placed in one place or another you're supposed to look at the totality of the evidence and the whole point is you should say to yourself am i assuming too much motivation and does this later evidence shaw testified testimony on the record there are business decisions that go into what is currently on the market there are blocking patents to consider dr shah testified that sometimes innovative companies don't you may not use emotions because emotions are cite oh i'm sorry the board the board actually did not side to dock to show us testimony on this issue but it considered again like i said it considered all of this when it was when it said that all of these hindsight arguments that sanjay was making it did not find persuasive because emotions the other thing that the board found in a suspicion is that emotions had been known for several years to provide better bioavailability for poorly water soluble drugs yes my  formulating poorly water soluble drugs like that supplied night into medicine in suspensions because they don't dissolve in water in a suspension the remains of suspended in water you have to really shake them very hard for them to disperse in water and they don't board as to this particular evidence is just that this is real world evidence the test their theory their particular theory in this case of obviousness which is that there were known problems with suspensions and the obvious way to fix those problems would be to migrate to an emulsion even with steroids and the real world evidence just demonstrates that hasn't happened in the board needs to consider that evidence now my colleague said that there is a question about weight loss of course weight is a question of the board at the time and vincent were emotions being used to deliver medication teaches that you you look at the at the prior art when you also have to look at real world evidence also what's your point i mean i don't understand you are you because because it's a prove it of of their theory of non obviousness their theory is that a person of ordinary skill in the art would have been motivated to combine kimora suspension with a casserole emulsion because everybody just knew that the way to solve problems with suspensions is to migrate them to emotions under doing and yet nobody has actually done that the fact it hasn't happened a year later or two years later or three years later doesn't make it nonprofit of that question isn't what do you guard against hindsight theory no more than one way to solve the problem  have to be the only way and then there are much of ways kinds of factors go into deciding who's going to do well so i don't think that's a theory that the board adopted i think been boarded up to the theory that it was clear that suspensions had particular problems that emotions claims but a motivation to combined it there has to be some actual motivation to combine the suspension with things emotion if things emotion was taught by open hands bioavailability to some completely like you know the the toenail or something like that nobody would think that there would been a motivation to combine even though there is no method of treatment claim in the claim patent and the board agreed with that that's why the board looked at the conjunctive experiment and as our expert explained the conjunctive experiment showed that the emulsion formulation was actually inferior to other formulations including the one the thing was trying to improve are out of time thank you