The next case is 07-1021. Jensen Farmer versus Myline Farmer is to green. You reserve four minutes of your time for the bottle. That is correct. Thank you. Whenever you're ready. I mean, my name is Robert Green. I am here representing the opponent Myline Farmer Civables in this meeting. I will address first the issue of obviousness. In this case, the district court judgment finding that the claims of the 663 patents are not invalid for obviousness is incorrect. It should be reversed. The district court reached this decision first by starting with a riched set of preventive rules that limited the obviousness inquiry and simply remove common sense. In this case, all contrary to the Supreme Court's guiding principles is recently expressed in the case. Let me ask about that. You do argue that the district court required an expressed teaching. But assuming you may be right on that, can you cite us any testimony that indicates that there was a suggestion to make the substitution and either common knowledge or implicitly in the art? Dr. Wolves' testimony on behalf of Myline directly dealt with that question. In fact, he said, I believe his phrase was a rose by any other name
. He stole a rose. In other words, that one of skill in the art would recognize from the teachings of, in particular, hurts the cell that are cited many times throughout this litigation that you can change, I get to use chemistry, the keto group and the brim for own to the benzoyze acts as all. It's something that one of ordinary skill in the art would derive from that information alone. The court folded the Myline position because Myline did not rely on both standard references for standard texts. And that is a clarification that the court was applying. A rich and large one where the KSR court has found that it would be absolutely incorrect. The KSR Supreme Court has found that one of ordinary skill in the art has creativity and can put pieces of prior together like a jigsaw puzzle. This was not a complex jigsaw puzzle. The prior art was Janssen's old home compound for brim for own. It was almost identical with the claim compound for own. The only difference was, again, the US chemistry, this keto group is president for own. The benzoyze acts as all group that's president in compound for own. The question was, and go through the graham factors, the only difference between the prior compound and the claim compound was that one difference. That difference is clearly shown in the KSR references that are cited, it's clear on its face that had been used in multiple instances and was also clear using one of Janssen's own molecule that's called Ben Peraida. Where it existed in the prior art, at the same structural location had a keto group, it was changed to a benzoyze acts as all by KSR. The prior Ben Peraida product wasn't anti-psychotic. The product with a benzoyze acts as all as modified by KSR was an anti-psychotic
. You're gonna hear, I believe, from Council for Janssen, that it wasn't a good anti-psychotic. In fact, as it was tested, it was shown to be effective. There are a few classes of patients in which it wasn't effective, but that's true within e-druck. It was effective as an anti-psychotic, and the references taught it to be an anti-psychotic. What was the ratio, the important part, the ratio of the two aspects, the critical part of the issue? In referring to the ratio of the serotonin, and dopamine, it is not a critical part in the invention, and let's put this in context for that. What are we talking about? We're talking about a claim in Janssen's path to compound eleven. Compound eleven is nothing more than a laboratory curiosity. Compound eleven is shown in the record to have no activity other than the activity shown in Janssen's path using animal tests. That same standard when applied to prevent parrhoam as a starting compound shows exactly the same attributes that parrhoam had dopamine activity, it had serotonin activity. It passed the test, if you will, that they told the patent examiner was predictive of utility in the field of anti-psychotic test. And one of the major problems I have with the way we just record judge rule on this case is that the standard was applied to compound eleven at the patent, because it was reasonably minimal to get the patent for treating anti-psychotic diseases. Can you make a comment? The first of all, I thought that the district court judge really came forward with a thorough opinion, really worked hard to get it right and found against your client and at least for independent grounds. And going through the brief, I found it very difficult to cover some of the points made by mylon in the briefs, because mylon would state a claim or make an assertion and then support the claim or assertion by reference to string sites. For example, in page 50, references to 10, 12 sites that reference publications in transcripts and I'm going through the transcripts and trying to find where witness is testifying where that testimony ends and where another witness starts. And I found it very difficult to follow along. So I just would want to make that comment. I do have a question
. I thought you raised a very good point and reference to the improperly compound standard. And in your brief, you argue that the district court used an improperly compound standard by requiring mylon to justify the selection of print prong as the lead compound and the attack and the problem of schizophrenia. I understand it. Since the briefs are written, we have a KSR that has been issued by the Supreme Court and how has the lead compound argument placed in your brief been changed if at all in light of a KSR? Prior to KSR, the lead compound standard as applied by the district court for the wrong, it's now even more so. I believe the Supreme Court and the KSR decision has again clearly told this court that when dealing with an ISIS inquiry, it's a fact-specific inquiry that must have flexibility and rigid rules such as the lead compound standard fall right in that category of a rule which simply takes common sense out of the equation. And I think that's actually recognized by reading the district court's opinion or the district court applies a lead compound standard really in a manner that was not applied in any of the prior cases, even the only of the lead compound standard. Mylon was faulted for not establishing that print prong was the compound that a person of ordinary skill in the art would have selected when going forward to make modifications to derive a new analyst. It's not, is it one of many? He said we did improve that it was the compound. The court relied, I believe, on Yamanuchi to get to report the lead compound standard. And let's assume for argument today that the court was wrong and that portion of the analysis and because of KSRs, there's even more error. Does it really matter in light of the other several grounds that the court found in favor of Jensen? Absolutely, because it's a bit of a cascade of faults with the district court, then in the first is a lead compound standard, which then cascaded into a series of other factual findings that are either clear or wrong is for simply not supported by the record. And I apologize for running to any early understanding points of the brief, I'd certainly be more than happy to respond to the specific questions. But let's turn first to the global issue, which is really not a point of these findings that the court goes into dealing with the subsidiary categories. The first point that's not a dispute is that the only difference between Perin Peron and compound level is the people group on the one hand, the Benta-Zyxol. Benta-Zyxol on the other. If you look at Percs Gryssel, that's not a dispute. Percs Gryssel, Shells, compounds, or anti-psychotics that have it at that very location, the same group that Benta-Zyxol, not a dispute
. I submit, you can stop right there. There's no need to go into any of those further findings by the district court to reach a conclusion of eyewitnessness. Those findings were based upon the second argument, which is not only is there motivation to make the change because Perin Peron itself simply says, these are good anti-psychotic molecules and modification at this point in the molecule that have a Benta-Zyxol group gives you a good anti-psychotic. It's based on the argument that the keto group had a problem. And it did. The problem was it had a short half life. James and Arduz, who's no proof of that, their own report admitting at the district court as evidence in the prior art is what they claim to be a predictive dog model, that predictive dog model said that Perin Peron had a short half life. The court's finding the kind for it. The court doesn't even reference that document and it's finding it. That's clearly a romance. But was there any prior art which indicated that Perin Peron was being considered? It should be considered as an anti-psychotic drug? At that time, the answer is no. The fact is the anti-psychotic activity of Perin Peron was defined by the predictive dog model mean task. Now that's the same task that James and Arduz the court also found that the prior art showed that not all dopamine and antagonist are effective anti-psychotics too, right? There is part work that shows that not all dopamine active compounds are anti-psychotics, that's Perin. So this is a choice though, isn't it? The determination, I mean, it's trial and error of trying to figure out exactly where to go with it. And it's hindsight, 2020 is always hindsight. Your honor, I submit the answer is absolutely not. The fact is the reason why the art hadn't progressed any faster than that of Perin Peron is it was originally a compound for treating anxiety due to its serotonin characteristics
. Johnson later found out that it had properties as a dopamine antagonist. Now, the dopamine antagonism we're talking about is not some obscure dopamine antagonism, it's dopamine antagonism that was deemed to be potent, not just a little bit, but a potent dopamine antagonist. By Johnson using the very same test that Johnson used to get the pattern through for compound 11, that's not hindsight, that's fact, and that's by their own publications, and those publications were not front of the examiner. And I bet, what did the examiner did it wrong? The examiner was never told that Perin Peron had dopamine antagonism. In fact, in one of the other compounds relied upon why the patenting signature, the tantrum was cited as a prior part of reference, a chance to come upon it. And the examiner said, well, one can't be just changed the tantrum to make an anti-psychotic. They came back in the napkin day and said, it doesn't have dopamine antagonism. But I'm still not seeing it Judge Gaiar's question. If the other side has shown the Perin Peron had no anti-psychotic activity and that risked Peridon unexpectedly does, why isn't that enough to support the unexpected results conclusion so that even if you reach a primafacial case of obviousness, you lose on unexpected results? OK, Gaiar, I believe there are actually two questions there. The first is, was Perin Peron shown not the hematocytic activity? Right, actually not. The judge found, based on three abstracts, that there was no anti-psychotic activity demonstrated. Not using the predictive dopamine test, by the way, that Janssen told the patent office was predictive, but rather three alleged other testings of Perin Peron and three abstracts. He found that Perin Peron failed the fentanyl discrimination test. And I submit, your honors, you should read the transcript on this, you should read the abstracts. You won't find the word fentanyl anyways. There was no fentanyl discrimination test. But the judge found it because Janssen told that Janssen was in there, it's not
. It was indicated that Perin Peron failed the cocaine discrimination test. You read the three abstracts? There is no indication that Perin Peron was tested using that test, the third test, the full reading judgment test, the first abstract does indicate that at the test it's loved one, there was no activity by Perin Peron. Two months later, Janssen published another abstract, the third abstract in the series. And the tone changed. It didn't say it had no activity. It said at that dose you'd love it, it was less active than another compound to talk about. It didn't say it had no activity. And there's an easy explanation for that. Activities, dose response, and the fact is, because of a high potency of Perin Peron used as a serotonin antagonist. And that was a lovely, retested path. There was less response, but it doesn't say there was no response. And it does not say that Perin Peron was not an antipsychotic. And in fact, if you look at the record, you'll see that the two notices from Janssen actually indicated that Perin Peron had been tested as an eye-psychotic. This is their test of Perin, including one inventor. And he said that it failed because of the bad half-life. When I ask you one quick question before your time, is it under KSR, do you think motivation is a question of law of fact after KSR? It's a question of law. Thank you, Mr
. Green. We'll restore three minutes of your rebuttal time. Thank you. Won't you add three minutes of Mr. Dixon at this next time? Thank you. Please, the court. I represent Janssen on this appeal. I risked my break-through drug. I was the first of the safe second generation in a psychotic, kind of to be administered that the ability to motor effects of the first generation has been a little long-wing and important success in the medical community, six generics, recognized the ability to patent by filing paragraph three certification. Let me add to that. This case involves compound patents, compound claims, and method claims. Should the analysis have been different for those different categories or not? I mean, the district court clearly just lumped it together, right? I think neither parties suggested a different analysis. I think, on the fact that this case analysis was the same, the question was basically, they had an obviousness case, and the obviousness case, ball-centered act creation of the compound. So I think, in this case, the issue is basically emerging. But more of a compound than the other. Yeah, I was a compound. The case
. Council has argued, now, as Judge Attira has pointed out, there was a lengthy thinking budget. The left one, carefully analyzing all the facts. This court must have repeated errors of fact, repeated early erroneous findings before a reversal could be justified. And I don't think there was a spec play that my line has shown eight errors in its arguments. Well, how do we place his opinion, which is very, very well done through the spectrum of KSR now, and the way we look at it, and the way we look at it. It's very easy. Not easy. KSR was very much on the horizon. In this case, we've briefed and decided neither party purged rigid rules, reading from letter reword to Judge Liffland. Janssen's position has been the defendant's selection of front-pour-own as the foundation for their obviousness analysis defies common sense. I was the argument we made. Judge Liffland begins analysis by citing the also decision of this court, which had recently issued and made it very clear that the obviousness analysis is one of flexibility. That's on page A18. And on page, excuse me, A25, he expressly recognized the evidence of a motivator. The decision of the court is not the case. The decision of the court is not the case. The decision of the court is not the case
. The decision of the court is not the case. The decision of the court is not the case. The decision of the court is not the case. It's the case. The suggestion task will be, this is considered, I am going to evoke all unsmouthable data around our I think they're in fact, or... Well, aside from the fact that we're all going to be using the words flexibility and common sense from now on, it's a problem with the lead compound analysis in the district court, at least that portion, right? I mean, if I read KSR is really rejecting this notion that you force someone to a particular starting point, and I read the district court is having done exactly that, that might not be fatal. That's not fatal to your case. I'm sure I agree with that analysis. I mean KSR is a mechanical case talking about mining too, and mechanical ideas. Chemical cases are different. Chemical cases, the art is one in which scientists work with the compounds. And in fact, I think the in-re-dillon case, I think remains good law, as structural accommodation, need a reason or motivation to pick the compounds and put them together. And as Judge Lyslund found, yeah, I mean, you choose just a specific application of Dillon in the chemical arts. You need a reason. You've got a prep-ron, you've got a benzous oxal through a wire-dollion, you've got to combine them
. Well, what's the reason to work with prep-ron? And that's really what the question was. I think respectfully that that is pretty much the same analysis. I think in a chemical case, where the undisputed test point in both sides was the chemist's work by identifying the compounds. That's just what one of the skill New York does, the identified of the compound experiment with it, if modifications necessary, they modify it. So I think it really is a fact, specific application of thinking there's pretty much completely important money with KSR. Is this what it is? I think the reason that combined is really a changed level of analysis in a TMS. I don't think the standard, obviously, their buzzwords are flexible in common sense, but I think the idea is the same idea. That one must have a reason to go forward. And this is a very, I think, easy case, because the art, unlike KSR, or we're talking about predictable results, the art strongly taught against, or emperor, strongly taught against it. There were three articles published by Dr. Janssen, who had also published in the same time your eight articles that said Phrompron had an identity dopamine effect. Three articles reporting that it was not an anti-psychotic. These articles are in the record. Counsel has tried to clean what slivers he can from up them, but they all involved cases where Dr. Janssen was testing three LSD antagonists, Phrompron, Centofron, and another. And he wanted to see whether these LSD antagonists could also be anti-psychotics, neuroelectic agents. And he found an important in Phrompron, which is the form A1416, that sits hoped for one uniquely, a Centofron, but not Phrompron, combines pure LSD antagonism with neuroelectic activity. Centofron is the only one that's neuroelectic, and I psychotic. That is the conclusion of all three of these articles, the other one that the A1432, Centofron uniquely combines pure LSD antagonist activity and typical neuroelectic effects. The third one has exactly the same conclusion that the A1435, these are testified to, and Dr. Herbert Nelson, with leaders in American research and anti-psychotics, explain what they meant, explain the food discrimination test. Also known as the Pernol discrimination test. You can find his testimony at A8454 through 57. Powerful teaching away. One would not work with Phrompron. And completely apart from that, the dominant theory of anti-psychotics was you had to have an anti-pollinergic effect to be a second generation anti-psychotic. Phrompron didn't. It's not a question, his counsel phrases it up, a more desirable or less desirable. The dominant theory was if you didn't have an anti-pollinergic effect, it didn't work. So why would anyone work with Phrompron? You know, what they call the leaf non-founded analysis or a reason, and the dominant sense. This is an easy case, and I think Judge Lisslin's opinion carefully analyzes these factors and leads you to that conclusion. You aren't taught the way Phrompron. And then everything else was just a house of cards for arguments, all of which were rejected. My Judge Lisslin, on some substantial evidence, I don't think any serious challenge would brought on a field to why one would reject his findings that three times a day does have to do with the case
. Centofron is the only one that's neuroelectic, and I psychotic. That is the conclusion of all three of these articles, the other one that the A1432, Centofron uniquely combines pure LSD antagonist activity and typical neuroelectic effects. The third one has exactly the same conclusion that the A1435, these are testified to, and Dr. Herbert Nelson, with leaders in American research and anti-psychotics, explain what they meant, explain the food discrimination test. Also known as the Pernol discrimination test. You can find his testimony at A8454 through 57. Powerful teaching away. One would not work with Phrompron. And completely apart from that, the dominant theory of anti-psychotics was you had to have an anti-pollinergic effect to be a second generation anti-psychotic. Phrompron didn't. It's not a question, his counsel phrases it up, a more desirable or less desirable. The dominant theory was if you didn't have an anti-pollinergic effect, it didn't work. So why would anyone work with Phrompron? You know, what they call the leaf non-founded analysis or a reason, and the dominant sense. This is an easy case, and I think Judge Lisslin's opinion carefully analyzes these factors and leads you to that conclusion. You aren't taught the way Phrompron. And then everything else was just a house of cards for arguments, all of which were rejected. My Judge Lisslin, on some substantial evidence, I don't think any serious challenge would brought on a field to why one would reject his findings that three times a day does have to do with the case. The other thing is okay, or a anti-psychotic, or only two medical doctors who testified to trial, like we both said that. If you wanted to preserve Phrompron, suppose the advantage is to make it longer lasting, we'd work with something that didn't change its structure, with a long lasting pill, like a depot, like a transdermal patch. If you wanted to change its structure, that was risky and uncertain. The air expert testified if he had only succeeded with chemical structural modification three or four times that hundreds of attempts had he created a commercial product as a chemical modification. Was the testing all being done for anti-exhid type of attestive at that point? Yes. Were there any tests for anti-psychotic? Phrompron was not considered an anti-psychotic drug, as Council's now. Before 1985. Before 1985, it was correct. After Dr. Melskars' work in 1989, it was a rarer's questioning about it. In hindsight, suddenly people saw most certain kinds of soap prong. The dopamine serotonin and tankiness might work. Some of the hindsight work points to Phrompron. There's certainly nothing in the RIT as of the priority date points to Phrompron. As a candidate, therefore, it was not tested as an anti-psychotic. But three times a day, dosing the medical testimony was the medical community would have left and improved anti-psychotic three times a day, dosing. We've been an enormous success
. The other thing is okay, or a anti-psychotic, or only two medical doctors who testified to trial, like we both said that. If you wanted to preserve Phrompron, suppose the advantage is to make it longer lasting, we'd work with something that didn't change its structure, with a long lasting pill, like a depot, like a transdermal patch. If you wanted to change its structure, that was risky and uncertain. The air expert testified if he had only succeeded with chemical structural modification three or four times that hundreds of attempts had he created a commercial product as a chemical modification. Was the testing all being done for anti-exhid type of attestive at that point? Yes. Were there any tests for anti-psychotic? Phrompron was not considered an anti-psychotic drug, as Council's now. Before 1985. Before 1985, it was correct. After Dr. Melskars' work in 1989, it was a rarer's questioning about it. In hindsight, suddenly people saw most certain kinds of soap prong. The dopamine serotonin and tankiness might work. Some of the hindsight work points to Phrompron. There's certainly nothing in the RIT as of the priority date points to Phrompron. As a candidate, therefore, it was not tested as an anti-psychotic. But three times a day, dosing the medical testimony was the medical community would have left and improved anti-psychotic three times a day, dosing. We've been an enormous success. Out all the market leader was a three times a day product and that awful sign effects. If you wanted to modify it, why wouldn't it be a metabolism at the fetown problem? The evidence was that it was not obvious based on some financial and medicinal chemistry testimony Dr. Abrangap. Do you want to... And that was the finding of the district court judge and you're saying that the finding was not clearly around them? Absolutely. After we all lived. Every one of these findings was a factual finding by the district court. Every one of them was not really around me. Indeed, every one of them was extremely well supported in the evidentiary record. But after KSR, do we have to look at... Do you think after KSR there's some suggestion that the motivation question, at least it's a question of law and not a question of fact? A lot of people report to this sign. I would think it's not. I still think the motivate
. Out all the market leader was a three times a day product and that awful sign effects. If you wanted to modify it, why wouldn't it be a metabolism at the fetown problem? The evidence was that it was not obvious based on some financial and medicinal chemistry testimony Dr. Abrangap. Do you want to... And that was the finding of the district court judge and you're saying that the finding was not clearly around them? Absolutely. After we all lived. Every one of these findings was a factual finding by the district court. Every one of them was not really around me. Indeed, every one of them was extremely well supported in the evidentiary record. But after KSR, do we have to look at... Do you think after KSR there's some suggestion that the motivation question, at least it's a question of law and not a question of fact? A lot of people report to this sign. I would think it's not. I still think the motivate. I think I still think of this. For applying the grandfathers are a factual finding by the district court. Certainly, the ultimate determination of obvious misses is a question of law for the this court can decide to know about... Based on the underlying facts. Based on the facts is found by the proud court of the jury. But... So I might... But what difference is there between a reason and combined and a teaching and combined? I still agree. I understand the difference. I think it's.
. I think I still think of this. For applying the grandfathers are a factual finding by the district court. Certainly, the ultimate determination of obvious misses is a question of law for the this court can decide to know about... Based on the underlying facts. Based on the facts is found by the proud court of the jury. But... So I might... But what difference is there between a reason and combined and a teaching and combined? I still agree. I understand the difference. I think it's... But I don't see the... I think reason perhaps more encompasses the common sense of flexibility, idea. But the KSR courts certainly wasn't throwing out the teaching and suggestion motivation test. And indeed, I read it is essentially endorsing the test to accept arguing that shouldn't be originally applied. And I think this is a classic example of a district court very diligently aware of the debate. Neither party is asking for rigid application of the rules. Just looking at the art and explaining that he doesn't see a reason to make this challenge. Apply the grandfathers. It's comparatively invention to the prior art. I'm sorry. Did you say that with the jury trial? No, no, I was not. I was not. I was not on the court. No, no, no
.. But I don't see the... I think reason perhaps more encompasses the common sense of flexibility, idea. But the KSR courts certainly wasn't throwing out the teaching and suggestion motivation test. And indeed, I read it is essentially endorsing the test to accept arguing that shouldn't be originally applied. And I think this is a classic example of a district court very diligently aware of the debate. Neither party is asking for rigid application of the rules. Just looking at the art and explaining that he doesn't see a reason to make this challenge. Apply the grandfathers. It's comparatively invention to the prior art. I'm sorry. Did you say that with the jury trial? No, no, I was not. I was not. I was not on the court. No, no, no. The Bendassantes, all substitution like wise, was not caught in the art. There was no plan of case. The secondary considerations. I think the primary case were overwhelming. And I think I'll rest on my briefs when I go to the time. I don't know if any questions. Thank you, Mr. President. Thank you. The only question. Mr. Green, three minutes. We will. Let me first address the lead compound issues. The court found. My line failed to demonstrate that the prior art would have motivated the first and the ordinary skill in the art of 1985 to choose for wrong as his or her lead compound. That's that's the final of the court
. The Bendassantes, all substitution like wise, was not caught in the art. There was no plan of case. The secondary considerations. I think the primary case were overwhelming. And I think I'll rest on my briefs when I go to the time. I don't know if any questions. Thank you, Mr. President. Thank you. The only question. Mr. Green, three minutes. We will. Let me first address the lead compound issues. The court found. My line failed to demonstrate that the prior art would have motivated the first and the ordinary skill in the art of 1985 to choose for wrong as his or her lead compound. That's that's the final of the court. How the judge couched the analysis before he got to the application as counsel just referenced, I think is irrelevant. How he applied is the plus band front of this court. And that's how he applied it. He found that my line did not prove that one of skill in the art would choose for wrong as his or her lead compound. He didn't the judge had not come back and find that there was no proof that this was one of many as should have been the standard. No, he found that we didn't prove that we're in wrong with it and chosen as his or her lead compound. With respect to the multitude of issues, again, I go back to the fact that the motivation to make this change comes strictly from the hurts for solid teachings that show anti-psychotic compounds that have the genzo-izoxes all in place of the keto group. Counsel says that these three x-ray acts teach that we're in wrong. In fact, it was not anti-psychotic, but again, I urge you to read the x-ray act. That is not in there. The language, it is concluded that cetop wronged uniquely combines LSD and tagging this neuroleptic activity. It could be read that way, but more aptly read is in the context of the entire abstract, which says we're testing for in-for-one and cetop wronged on one set of conditions. Under those conditions, we're all compounds had activity in suppressing LSD. Perin-for-one was very active as a serotonin antagonist, which meant that the amount of serotonin activity caused the amount of print-for-one that was being used to be small. So the fact that they had less activity than cetop wrong is not surprising at all. And this court has said that it is absolutely improper to read a reference as a negative teaching unless it says that. This reference does not say, nor do any of the other two abstracts that print-for-one does not work as an anti-psychotic
. How the judge couched the analysis before he got to the application as counsel just referenced, I think is irrelevant. How he applied is the plus band front of this court. And that's how he applied it. He found that my line did not prove that one of skill in the art would choose for wrong as his or her lead compound. He didn't the judge had not come back and find that there was no proof that this was one of many as should have been the standard. No, he found that we didn't prove that we're in wrong with it and chosen as his or her lead compound. With respect to the multitude of issues, again, I go back to the fact that the motivation to make this change comes strictly from the hurts for solid teachings that show anti-psychotic compounds that have the genzo-izoxes all in place of the keto group. Counsel says that these three x-ray acts teach that we're in wrong. In fact, it was not anti-psychotic, but again, I urge you to read the x-ray act. That is not in there. The language, it is concluded that cetop wronged uniquely combines LSD and tagging this neuroleptic activity. It could be read that way, but more aptly read is in the context of the entire abstract, which says we're testing for in-for-one and cetop wronged on one set of conditions. Under those conditions, we're all compounds had activity in suppressing LSD. Perin-for-one was very active as a serotonin antagonist, which meant that the amount of serotonin activity caused the amount of print-for-one that was being used to be small. So the fact that they had less activity than cetop wrong is not surprising at all. And this court has said that it is absolutely improper to read a reference as a negative teaching unless it says that. This reference does not say, nor do any of the other two abstracts that print-for-one does not work as an anti-psychotic. Again, the predictive task used to get the pattern through on compound 11, in fact, is the task that showed that print-for-one was a potent dopamine antagonist. But you've got really four steps to go from Periparone to compound 11, isn't it? I feel four clear steps to meet the attack. There's a lot of time. It's changed. You don't group the events, I was honest, it's all. The physical chemistry is to how do you make a replacement and it is irrelevant to the question of, what is the structure of the point at the end of the day? This isn't a method pattern. This is a pattern on the actual model. On the compound. On the compound. And how you derive that compound isn't relevant. In fact, they don't have process problems. The actual structure is what's key here. And there's one difference. It's changing that keto group to events, Isox, as well. If I could take a few seconds on the issue of secondary considerations. This court has always said that in order for a claim to have the benefit of secondary considerations, the scope of the showing must be commensurate and scope of the claim. All claims in this pattern cover at least two compounds
. Again, the predictive task used to get the pattern through on compound 11, in fact, is the task that showed that print-for-one was a potent dopamine antagonist. But you've got really four steps to go from Periparone to compound 11, isn't it? I feel four clear steps to meet the attack. There's a lot of time. It's changed. You don't group the events, I was honest, it's all. The physical chemistry is to how do you make a replacement and it is irrelevant to the question of, what is the structure of the point at the end of the day? This isn't a method pattern. This is a pattern on the actual model. On the compound. On the compound. And how you derive that compound isn't relevant. In fact, they don't have process problems. The actual structure is what's key here. And there's one difference. It's changing that keto group to events, Isox, as well. If I could take a few seconds on the issue of secondary considerations. This court has always said that in order for a claim to have the benefit of secondary considerations, the scope of the showing must be commensurate and scope of the claim. All claims in this pattern cover at least two compounds. And in each and every case it covers compound 11. There is not once a televew in its bowl all that shows it compound 11 had anything other than its predicted activity. It has no commercial success. It was a large work curiosity. It never found its way into the clinic. It was never shown to not have expert grant or side effects. It was never shown to have any qualifications once tested in here. No, that's all. You brief Mr. Green, do you have any questions? No. Thank you, Mr. Green. Thank you. Thank you.
The next case is 07-1021. Jensen Farmer versus Myline Farmer is to green. You reserve four minutes of your time for the bottle. That is correct. Thank you. Whenever you're ready. I mean, my name is Robert Green. I am here representing the opponent Myline Farmer Civables in this meeting. I will address first the issue of obviousness. In this case, the district court judgment finding that the claims of the 663 patents are not invalid for obviousness is incorrect. It should be reversed. The district court reached this decision first by starting with a riched set of preventive rules that limited the obviousness inquiry and simply remove common sense. In this case, all contrary to the Supreme Court's guiding principles is recently expressed in the case. Let me ask about that. You do argue that the district court required an expressed teaching. But assuming you may be right on that, can you cite us any testimony that indicates that there was a suggestion to make the substitution and either common knowledge or implicitly in the art? Dr. Wolves' testimony on behalf of Myline directly dealt with that question. In fact, he said, I believe his phrase was a rose by any other name. He stole a rose. In other words, that one of skill in the art would recognize from the teachings of, in particular, hurts the cell that are cited many times throughout this litigation that you can change, I get to use chemistry, the keto group and the brim for own to the benzoyze acts as all. It's something that one of ordinary skill in the art would derive from that information alone. The court folded the Myline position because Myline did not rely on both standard references for standard texts. And that is a clarification that the court was applying. A rich and large one where the KSR court has found that it would be absolutely incorrect. The KSR Supreme Court has found that one of ordinary skill in the art has creativity and can put pieces of prior together like a jigsaw puzzle. This was not a complex jigsaw puzzle. The prior art was Janssen's old home compound for brim for own. It was almost identical with the claim compound for own. The only difference was, again, the US chemistry, this keto group is president for own. The benzoyze acts as all group that's president in compound for own. The question was, and go through the graham factors, the only difference between the prior compound and the claim compound was that one difference. That difference is clearly shown in the KSR references that are cited, it's clear on its face that had been used in multiple instances and was also clear using one of Janssen's own molecule that's called Ben Peraida. Where it existed in the prior art, at the same structural location had a keto group, it was changed to a benzoyze acts as all by KSR. The prior Ben Peraida product wasn't anti-psychotic. The product with a benzoyze acts as all as modified by KSR was an anti-psychotic. You're gonna hear, I believe, from Council for Janssen, that it wasn't a good anti-psychotic. In fact, as it was tested, it was shown to be effective. There are a few classes of patients in which it wasn't effective, but that's true within e-druck. It was effective as an anti-psychotic, and the references taught it to be an anti-psychotic. What was the ratio, the important part, the ratio of the two aspects, the critical part of the issue? In referring to the ratio of the serotonin, and dopamine, it is not a critical part in the invention, and let's put this in context for that. What are we talking about? We're talking about a claim in Janssen's path to compound eleven. Compound eleven is nothing more than a laboratory curiosity. Compound eleven is shown in the record to have no activity other than the activity shown in Janssen's path using animal tests. That same standard when applied to prevent parrhoam as a starting compound shows exactly the same attributes that parrhoam had dopamine activity, it had serotonin activity. It passed the test, if you will, that they told the patent examiner was predictive of utility in the field of anti-psychotic test. And one of the major problems I have with the way we just record judge rule on this case is that the standard was applied to compound eleven at the patent, because it was reasonably minimal to get the patent for treating anti-psychotic diseases. Can you make a comment? The first of all, I thought that the district court judge really came forward with a thorough opinion, really worked hard to get it right and found against your client and at least for independent grounds. And going through the brief, I found it very difficult to cover some of the points made by mylon in the briefs, because mylon would state a claim or make an assertion and then support the claim or assertion by reference to string sites. For example, in page 50, references to 10, 12 sites that reference publications in transcripts and I'm going through the transcripts and trying to find where witness is testifying where that testimony ends and where another witness starts. And I found it very difficult to follow along. So I just would want to make that comment. I do have a question. I thought you raised a very good point and reference to the improperly compound standard. And in your brief, you argue that the district court used an improperly compound standard by requiring mylon to justify the selection of print prong as the lead compound and the attack and the problem of schizophrenia. I understand it. Since the briefs are written, we have a KSR that has been issued by the Supreme Court and how has the lead compound argument placed in your brief been changed if at all in light of a KSR? Prior to KSR, the lead compound standard as applied by the district court for the wrong, it's now even more so. I believe the Supreme Court and the KSR decision has again clearly told this court that when dealing with an ISIS inquiry, it's a fact-specific inquiry that must have flexibility and rigid rules such as the lead compound standard fall right in that category of a rule which simply takes common sense out of the equation. And I think that's actually recognized by reading the district court's opinion or the district court applies a lead compound standard really in a manner that was not applied in any of the prior cases, even the only of the lead compound standard. Mylon was faulted for not establishing that print prong was the compound that a person of ordinary skill in the art would have selected when going forward to make modifications to derive a new analyst. It's not, is it one of many? He said we did improve that it was the compound. The court relied, I believe, on Yamanuchi to get to report the lead compound standard. And let's assume for argument today that the court was wrong and that portion of the analysis and because of KSRs, there's even more error. Does it really matter in light of the other several grounds that the court found in favor of Jensen? Absolutely, because it's a bit of a cascade of faults with the district court, then in the first is a lead compound standard, which then cascaded into a series of other factual findings that are either clear or wrong is for simply not supported by the record. And I apologize for running to any early understanding points of the brief, I'd certainly be more than happy to respond to the specific questions. But let's turn first to the global issue, which is really not a point of these findings that the court goes into dealing with the subsidiary categories. The first point that's not a dispute is that the only difference between Perin Peron and compound level is the people group on the one hand, the Benta-Zyxol. Benta-Zyxol on the other. If you look at Percs Gryssel, that's not a dispute. Percs Gryssel, Shells, compounds, or anti-psychotics that have it at that very location, the same group that Benta-Zyxol, not a dispute. I submit, you can stop right there. There's no need to go into any of those further findings by the district court to reach a conclusion of eyewitnessness. Those findings were based upon the second argument, which is not only is there motivation to make the change because Perin Peron itself simply says, these are good anti-psychotic molecules and modification at this point in the molecule that have a Benta-Zyxol group gives you a good anti-psychotic. It's based on the argument that the keto group had a problem. And it did. The problem was it had a short half life. James and Arduz, who's no proof of that, their own report admitting at the district court as evidence in the prior art is what they claim to be a predictive dog model, that predictive dog model said that Perin Peron had a short half life. The court's finding the kind for it. The court doesn't even reference that document and it's finding it. That's clearly a romance. But was there any prior art which indicated that Perin Peron was being considered? It should be considered as an anti-psychotic drug? At that time, the answer is no. The fact is the anti-psychotic activity of Perin Peron was defined by the predictive dog model mean task. Now that's the same task that James and Arduz the court also found that the prior art showed that not all dopamine and antagonist are effective anti-psychotics too, right? There is part work that shows that not all dopamine active compounds are anti-psychotics, that's Perin. So this is a choice though, isn't it? The determination, I mean, it's trial and error of trying to figure out exactly where to go with it. And it's hindsight, 2020 is always hindsight. Your honor, I submit the answer is absolutely not. The fact is the reason why the art hadn't progressed any faster than that of Perin Peron is it was originally a compound for treating anxiety due to its serotonin characteristics. Johnson later found out that it had properties as a dopamine antagonist. Now, the dopamine antagonism we're talking about is not some obscure dopamine antagonism, it's dopamine antagonism that was deemed to be potent, not just a little bit, but a potent dopamine antagonist. By Johnson using the very same test that Johnson used to get the pattern through for compound 11, that's not hindsight, that's fact, and that's by their own publications, and those publications were not front of the examiner. And I bet, what did the examiner did it wrong? The examiner was never told that Perin Peron had dopamine antagonism. In fact, in one of the other compounds relied upon why the patenting signature, the tantrum was cited as a prior part of reference, a chance to come upon it. And the examiner said, well, one can't be just changed the tantrum to make an anti-psychotic. They came back in the napkin day and said, it doesn't have dopamine antagonism. But I'm still not seeing it Judge Gaiar's question. If the other side has shown the Perin Peron had no anti-psychotic activity and that risked Peridon unexpectedly does, why isn't that enough to support the unexpected results conclusion so that even if you reach a primafacial case of obviousness, you lose on unexpected results? OK, Gaiar, I believe there are actually two questions there. The first is, was Perin Peron shown not the hematocytic activity? Right, actually not. The judge found, based on three abstracts, that there was no anti-psychotic activity demonstrated. Not using the predictive dopamine test, by the way, that Janssen told the patent office was predictive, but rather three alleged other testings of Perin Peron and three abstracts. He found that Perin Peron failed the fentanyl discrimination test. And I submit, your honors, you should read the transcript on this, you should read the abstracts. You won't find the word fentanyl anyways. There was no fentanyl discrimination test. But the judge found it because Janssen told that Janssen was in there, it's not. It was indicated that Perin Peron failed the cocaine discrimination test. You read the three abstracts? There is no indication that Perin Peron was tested using that test, the third test, the full reading judgment test, the first abstract does indicate that at the test it's loved one, there was no activity by Perin Peron. Two months later, Janssen published another abstract, the third abstract in the series. And the tone changed. It didn't say it had no activity. It said at that dose you'd love it, it was less active than another compound to talk about. It didn't say it had no activity. And there's an easy explanation for that. Activities, dose response, and the fact is, because of a high potency of Perin Peron used as a serotonin antagonist. And that was a lovely, retested path. There was less response, but it doesn't say there was no response. And it does not say that Perin Peron was not an antipsychotic. And in fact, if you look at the record, you'll see that the two notices from Janssen actually indicated that Perin Peron had been tested as an eye-psychotic. This is their test of Perin, including one inventor. And he said that it failed because of the bad half-life. When I ask you one quick question before your time, is it under KSR, do you think motivation is a question of law of fact after KSR? It's a question of law. Thank you, Mr. Green. We'll restore three minutes of your rebuttal time. Thank you. Won't you add three minutes of Mr. Dixon at this next time? Thank you. Please, the court. I represent Janssen on this appeal. I risked my break-through drug. I was the first of the safe second generation in a psychotic, kind of to be administered that the ability to motor effects of the first generation has been a little long-wing and important success in the medical community, six generics, recognized the ability to patent by filing paragraph three certification. Let me add to that. This case involves compound patents, compound claims, and method claims. Should the analysis have been different for those different categories or not? I mean, the district court clearly just lumped it together, right? I think neither parties suggested a different analysis. I think, on the fact that this case analysis was the same, the question was basically, they had an obviousness case, and the obviousness case, ball-centered act creation of the compound. So I think, in this case, the issue is basically emerging. But more of a compound than the other. Yeah, I was a compound. The case. Council has argued, now, as Judge Attira has pointed out, there was a lengthy thinking budget. The left one, carefully analyzing all the facts. This court must have repeated errors of fact, repeated early erroneous findings before a reversal could be justified. And I don't think there was a spec play that my line has shown eight errors in its arguments. Well, how do we place his opinion, which is very, very well done through the spectrum of KSR now, and the way we look at it, and the way we look at it. It's very easy. Not easy. KSR was very much on the horizon. In this case, we've briefed and decided neither party purged rigid rules, reading from letter reword to Judge Liffland. Janssen's position has been the defendant's selection of front-pour-own as the foundation for their obviousness analysis defies common sense. I was the argument we made. Judge Liffland begins analysis by citing the also decision of this court, which had recently issued and made it very clear that the obviousness analysis is one of flexibility. That's on page A18. And on page, excuse me, A25, he expressly recognized the evidence of a motivator. The decision of the court is not the case. The decision of the court is not the case. The decision of the court is not the case. The decision of the court is not the case. The decision of the court is not the case. The decision of the court is not the case. It's the case. The suggestion task will be, this is considered, I am going to evoke all unsmouthable data around our I think they're in fact, or... Well, aside from the fact that we're all going to be using the words flexibility and common sense from now on, it's a problem with the lead compound analysis in the district court, at least that portion, right? I mean, if I read KSR is really rejecting this notion that you force someone to a particular starting point, and I read the district court is having done exactly that, that might not be fatal. That's not fatal to your case. I'm sure I agree with that analysis. I mean KSR is a mechanical case talking about mining too, and mechanical ideas. Chemical cases are different. Chemical cases, the art is one in which scientists work with the compounds. And in fact, I think the in-re-dillon case, I think remains good law, as structural accommodation, need a reason or motivation to pick the compounds and put them together. And as Judge Lyslund found, yeah, I mean, you choose just a specific application of Dillon in the chemical arts. You need a reason. You've got a prep-ron, you've got a benzous oxal through a wire-dollion, you've got to combine them. Well, what's the reason to work with prep-ron? And that's really what the question was. I think respectfully that that is pretty much the same analysis. I think in a chemical case, where the undisputed test point in both sides was the chemist's work by identifying the compounds. That's just what one of the skill New York does, the identified of the compound experiment with it, if modifications necessary, they modify it. So I think it really is a fact, specific application of thinking there's pretty much completely important money with KSR. Is this what it is? I think the reason that combined is really a changed level of analysis in a TMS. I don't think the standard, obviously, their buzzwords are flexible in common sense, but I think the idea is the same idea. That one must have a reason to go forward. And this is a very, I think, easy case, because the art, unlike KSR, or we're talking about predictable results, the art strongly taught against, or emperor, strongly taught against it. There were three articles published by Dr. Janssen, who had also published in the same time your eight articles that said Phrompron had an identity dopamine effect. Three articles reporting that it was not an anti-psychotic. These articles are in the record. Counsel has tried to clean what slivers he can from up them, but they all involved cases where Dr. Janssen was testing three LSD antagonists, Phrompron, Centofron, and another. And he wanted to see whether these LSD antagonists could also be anti-psychotics, neuroelectic agents. And he found an important in Phrompron, which is the form A1416, that sits hoped for one uniquely, a Centofron, but not Phrompron, combines pure LSD antagonism with neuroelectic activity. Centofron is the only one that's neuroelectic, and I psychotic. That is the conclusion of all three of these articles, the other one that the A1432, Centofron uniquely combines pure LSD antagonist activity and typical neuroelectic effects. The third one has exactly the same conclusion that the A1435, these are testified to, and Dr. Herbert Nelson, with leaders in American research and anti-psychotics, explain what they meant, explain the food discrimination test. Also known as the Pernol discrimination test. You can find his testimony at A8454 through 57. Powerful teaching away. One would not work with Phrompron. And completely apart from that, the dominant theory of anti-psychotics was you had to have an anti-pollinergic effect to be a second generation anti-psychotic. Phrompron didn't. It's not a question, his counsel phrases it up, a more desirable or less desirable. The dominant theory was if you didn't have an anti-pollinergic effect, it didn't work. So why would anyone work with Phrompron? You know, what they call the leaf non-founded analysis or a reason, and the dominant sense. This is an easy case, and I think Judge Lisslin's opinion carefully analyzes these factors and leads you to that conclusion. You aren't taught the way Phrompron. And then everything else was just a house of cards for arguments, all of which were rejected. My Judge Lisslin, on some substantial evidence, I don't think any serious challenge would brought on a field to why one would reject his findings that three times a day does have to do with the case. The other thing is okay, or a anti-psychotic, or only two medical doctors who testified to trial, like we both said that. If you wanted to preserve Phrompron, suppose the advantage is to make it longer lasting, we'd work with something that didn't change its structure, with a long lasting pill, like a depot, like a transdermal patch. If you wanted to change its structure, that was risky and uncertain. The air expert testified if he had only succeeded with chemical structural modification three or four times that hundreds of attempts had he created a commercial product as a chemical modification. Was the testing all being done for anti-exhid type of attestive at that point? Yes. Were there any tests for anti-psychotic? Phrompron was not considered an anti-psychotic drug, as Council's now. Before 1985. Before 1985, it was correct. After Dr. Melskars' work in 1989, it was a rarer's questioning about it. In hindsight, suddenly people saw most certain kinds of soap prong. The dopamine serotonin and tankiness might work. Some of the hindsight work points to Phrompron. There's certainly nothing in the RIT as of the priority date points to Phrompron. As a candidate, therefore, it was not tested as an anti-psychotic. But three times a day, dosing the medical testimony was the medical community would have left and improved anti-psychotic three times a day, dosing. We've been an enormous success. Out all the market leader was a three times a day product and that awful sign effects. If you wanted to modify it, why wouldn't it be a metabolism at the fetown problem? The evidence was that it was not obvious based on some financial and medicinal chemistry testimony Dr. Abrangap. Do you want to... And that was the finding of the district court judge and you're saying that the finding was not clearly around them? Absolutely. After we all lived. Every one of these findings was a factual finding by the district court. Every one of them was not really around me. Indeed, every one of them was extremely well supported in the evidentiary record. But after KSR, do we have to look at... Do you think after KSR there's some suggestion that the motivation question, at least it's a question of law and not a question of fact? A lot of people report to this sign. I would think it's not. I still think the motivate. I think I still think of this. For applying the grandfathers are a factual finding by the district court. Certainly, the ultimate determination of obvious misses is a question of law for the this court can decide to know about... Based on the underlying facts. Based on the facts is found by the proud court of the jury. But... So I might... But what difference is there between a reason and combined and a teaching and combined? I still agree. I understand the difference. I think it's... But I don't see the... I think reason perhaps more encompasses the common sense of flexibility, idea. But the KSR courts certainly wasn't throwing out the teaching and suggestion motivation test. And indeed, I read it is essentially endorsing the test to accept arguing that shouldn't be originally applied. And I think this is a classic example of a district court very diligently aware of the debate. Neither party is asking for rigid application of the rules. Just looking at the art and explaining that he doesn't see a reason to make this challenge. Apply the grandfathers. It's comparatively invention to the prior art. I'm sorry. Did you say that with the jury trial? No, no, I was not. I was not. I was not on the court. No, no, no. The Bendassantes, all substitution like wise, was not caught in the art. There was no plan of case. The secondary considerations. I think the primary case were overwhelming. And I think I'll rest on my briefs when I go to the time. I don't know if any questions. Thank you, Mr. President. Thank you. The only question. Mr. Green, three minutes. We will. Let me first address the lead compound issues. The court found. My line failed to demonstrate that the prior art would have motivated the first and the ordinary skill in the art of 1985 to choose for wrong as his or her lead compound. That's that's the final of the court. How the judge couched the analysis before he got to the application as counsel just referenced, I think is irrelevant. How he applied is the plus band front of this court. And that's how he applied it. He found that my line did not prove that one of skill in the art would choose for wrong as his or her lead compound. He didn't the judge had not come back and find that there was no proof that this was one of many as should have been the standard. No, he found that we didn't prove that we're in wrong with it and chosen as his or her lead compound. With respect to the multitude of issues, again, I go back to the fact that the motivation to make this change comes strictly from the hurts for solid teachings that show anti-psychotic compounds that have the genzo-izoxes all in place of the keto group. Counsel says that these three x-ray acts teach that we're in wrong. In fact, it was not anti-psychotic, but again, I urge you to read the x-ray act. That is not in there. The language, it is concluded that cetop wronged uniquely combines LSD and tagging this neuroleptic activity. It could be read that way, but more aptly read is in the context of the entire abstract, which says we're testing for in-for-one and cetop wronged on one set of conditions. Under those conditions, we're all compounds had activity in suppressing LSD. Perin-for-one was very active as a serotonin antagonist, which meant that the amount of serotonin activity caused the amount of print-for-one that was being used to be small. So the fact that they had less activity than cetop wrong is not surprising at all. And this court has said that it is absolutely improper to read a reference as a negative teaching unless it says that. This reference does not say, nor do any of the other two abstracts that print-for-one does not work as an anti-psychotic. Again, the predictive task used to get the pattern through on compound 11, in fact, is the task that showed that print-for-one was a potent dopamine antagonist. But you've got really four steps to go from Periparone to compound 11, isn't it? I feel four clear steps to meet the attack. There's a lot of time. It's changed. You don't group the events, I was honest, it's all. The physical chemistry is to how do you make a replacement and it is irrelevant to the question of, what is the structure of the point at the end of the day? This isn't a method pattern. This is a pattern on the actual model. On the compound. On the compound. And how you derive that compound isn't relevant. In fact, they don't have process problems. The actual structure is what's key here. And there's one difference. It's changing that keto group to events, Isox, as well. If I could take a few seconds on the issue of secondary considerations. This court has always said that in order for a claim to have the benefit of secondary considerations, the scope of the showing must be commensurate and scope of the claim. All claims in this pattern cover at least two compounds. And in each and every case it covers compound 11. There is not once a televew in its bowl all that shows it compound 11 had anything other than its predicted activity. It has no commercial success. It was a large work curiosity. It never found its way into the clinic. It was never shown to not have expert grant or side effects. It was never shown to have any qualifications once tested in here. No, that's all. You brief Mr. Green, do you have any questions? No. Thank you, Mr. Green. Thank you. Thank you