on identical language to actually issued claims you would like to move to the term binding agent this is a classic case of a panty using the ordinary customary meaning mentions explicitly that a wife arriving at the findings agents may be provided they have binding sites which are specific for the an ally in question as compared with any other radio in the fluid in question that is to say so what is the the binding site of course is a term that is used by the district court to impose a pro team only limitation and there are claims in the patent that mention binding spite site specifically claims that do not on the issue of binding site the district court said that that biological meaning his has no evidence whatsoever to support the district court site one sentence out of the brief filed by after metrics lawyers in the united kingdom which on its face does not restrict the definition of proteins it also talks about this only limited to protein and that's right the district court put forward what it thought was a plain language meaning of a binding site it said any site we're buying a curse and rejected that plain language meaning our position is that the definition of both binding age the term binding agent use specifically to talk about d n a probes specifically to talk about d n a binding to d n a we also have the patent here a prior art reference the nine sixteen patents limit talking intrinsic evidence for claims structure demonstrates that this term is to be inclusive and to include d n a the district court air pipe excluding that from the plant construction also with respect to document equivalence regardless if this court were inclined to agree with this report of course we would dispute that but certainly from the perspective of document little's there's no specific exclusion of d n a anywhere in this pack the only exclusion of d n a comes into district court instruction so you're or r n a and patent suggested that perhaps the inventor did recognize that the differences rather than the similarities were such that this wasn't part of his invention there are of course differences between antibodies and d n a but there are no scientific differences from the perspective of this patent what the pack announces the properties of the binding agent must be to work in this invention and that again is to the ability to specifically recognize analyze as opposed to other substances in the solution what the district court error is looking at a pattern where the patent he has expressed it for by the preferred environment being antibody binding agents but making clear that the term is broader than the preferred body and this puts this case of a piece with the home diagnostics case which of course you cited to prove another case involving an assay for determining concentration and life in that case glucose in cold blood  county claiming all conceivable assets of any kind he is claiming all assets in which the inventive principle of using small amounts or miniscule amounts of flying agent in the case of the seven what that was in the prior art was it not true that was not in the the prior art did not contain the miniscule amounts of buying agent nor did it contain the point one of the overcame limitations and that's the critical point the critical point is that the prior art used very large amounts of binding agent to buy all or substantially substantial portion of the alawite the solution the inventor comes and says i have this incredible technique where i can use very very minuscule amounts of binding agent to do things that people had not known of before what he does not come into to the patent office to say is that it depends on the type of my agent there's no discussion of the type because the type for the purpose of the minuscule amount is completely irrelevant the district court was under the misimpression that by adopting multi lights construction he was opening the door to a floodgate of all prior art systems and that is simply not the case the prior art was distinguished on the basis of the amount of buying it was extremely counter intuitive principle but when one uses that curry minuscule amount of binding agent one does not care what type of binding agent is used as long as it can select an ally in this post other substances in the solution and that's why the limitation is fundamentally wrong as metrics talks about the next  and that is part of the record that is part of the public notice function that is how the county claims and makes clear that the term binding agent is being used to its full extent not a single reference to what's called hybridization was ever mentioned in the record of that if the day and i probes and the principles of using them were later developed and all of the other aspects apparently significant scientific advance being able to work at these conditions isn't that something within the broader scope of what had been proposed no not at all because and the key here is the reference to the term scientific side but they also do have binding so it's something you know they have nucleotide bases which in the process of transmitting genetic information hybridized with other bases come to be understood only in the last whatever it is the last decade of the nucleic acid probes does in fact operate in a similar way as far as the the invention where the binding sites on an antibody that point the inventor pointed what are called hyper variable region which attach to a particular effort of an antigen that's the binding site you can count there one there but the principle a similar one m fact if the basic principle is the dilution factor which as far as i can tell from the fact that this debate is going on fractional occupancy in other words you can know in advance the number of binding sides in your binding agent and then you can determine the fractional occupancy the number of binding sites that are engaged b you cannot calculate proportional occupancy or fractional occupancy but you can with protein substances that have a discrete binding side that is what its function is the nucle bases in d n a do not serve that function yes they do hybridise but they don't serve the function of performing a discrete bindings and this was a point that was repeatedly emphasized in the prosecution history binding can occur but those don't make those regions binding sites the binding sites are these specific structures the the lock and key mechanism that can be used by anybody or by a few other protein substances such as protein receptors that has no analog in d n a there is no reference and certainly nothing in the prosecution history which would extend that structure to d n a and i think that the  the court's opinion in biology is very significant in that respect when we're dealing with highly complex biological in that that's such as the court was in that case you can't simply assume that a particular structure molecule can be applied to one there's performing a different function so you can analogize the binding side on an antibody to the nucleotide bases on d n a and there's nothing in the record to suggest that question now the only reference that they mention is was in the prosecution history but that was a patent that reflected the views of any bodies to bind to d n a molecules double strand of d n a molecules and it was call have to buy sides and there again that the key is that they are against the state structures on the molecule was purchased by and again throughout the prosecution history as well as the testimony of the inventor which is here offered to show what a person skilled in the art at the time of the invention have understood this to be in light of the intrinsic record where you read the intrinsic record and overcome these repeated in jet rejections he's technology any other technology that would speak to dan that the focus is exhausted exhausted on him knowledgeable and had to put in the prosecution history so in terms of the notice function that is entirely sure by the appropriate limitations that this district court reached after an exhaustive review and multiple briefings on this very issue but again i think biogen  as it is a good template for this for the status or different facts that there were different facts and but in that case what is interesting is the applicant in that case the prosecution history said that whether it was a single construct or it could include multiple constructs for the livery or the genetic material there was at least a mention in the prosecution history as well but you know what strikes me here again is that there was a principle that multi light developed of the extreme dilution factors and how that works and how it's measured based on the amount of we don't measure tradition or they don't know but he says they don't one has to assume that they are it's not disputed as far as i could tell well i thought the only thing that was disputed was whether in fact the d n a probes should be viewed as within the scope of the binding principle and the binding site principle that was certainly the basis for the court's grant summary judgment  case but we vigorously dispute if we use this principle whatsoever to measure concentration our d n a probes do not measure concentration we do not measure concentration what this case has gone forward on the theory is that while you've made your use small amounts of new player gas and when you're testing for say you taishan that's the theory in which this case is gone for and in light of the intrinsic record which which is really quite consistent in this case and very compelling the discussion is in the context of immuno a sense in which binding agents having very specific highly that is the way a person skilled in new york read this at the time because it's not just any binding agent it's binding agents having binding site specific for the panel such that fractional occup can be determined because the principle which is a basic application of lang years i said is that you must be able to determine fractional occupancy from fractional occupancy you can determine concentration being having binding site specific for being discussed generally binding binding pairs that is not the me that was intended by this intrinsic record the meaning intended by  honor i'd like to pick up on this last point and this is the discussion of the so called discreet binding sites that mr rove mentioned the word discrete does not appear appear and the fact is all the discussion that we've just heard about properties of d a in the abstract d n a can be thousands of nucleotides long but what's important for this invention and for this discussion is not d n a in the abstract but the d n a that the assay designer has selected to use as a pro in the taken a piece for example of twenty five nucleotides and affix them to a solid support and say this is my bike agent and it's looking for a particular complement and solution the animal that is highly specific reaction we've presented evidence that there are over one trillion combinations so long as your selection is twenty strands twenty nucleotides long or more for this reason the fotr pad steven fotr one of the founders of after matters talks about the d n a probe in an  as having a binding site this is in dr folders on here he also talks about fractional occupancy the works exactly the same way you see how many bytes sites are filled how many binding sites are unfilled and you determine fraction occupancy it works just as much subject to be selected that is a very highly specific reaction it is one that is very precise and that's why these d n a assets work they can select the i like as opposed to other things in the solution and that's all that's required  package which mr reilly mentioned that mentioned specifically d n a probes in acids he talked about some features of the antibody finding that are not political but the living pattern talks about a specific binding here that can work evidence that they have that we have produced here they're determining concentration the issue with respect to concentration is to claim construction and our problem with this records construction of limiting it to particular types of units and that is the only issue with respect to concentrate on appeal the district court said it had to be expressed with particular units in mind and our point is that concentration can be expressed in many different ways including ways that do not have the denominator because if the sample