separately from the two thousand and eight order it's an interlock to tori or order and you're either out of time or it was an air lock or order it seems like you could have raised those arguments to judge collier and then appealed from that this is an included them think there's references to that but then you never argued anything about the application to her and so each didn't seem to meet her preserved in the arguments with regard to the knife you can't appeal separately from invalidates the nine one five patent isn't the only reason to have the eighty nine application and they are to address that but the seventy two would supersede that as well my understanding is that there would still need to be a chain of priority in order for abbott nine one five patent to get the benefit all the way back to the zero seven two application the zero nine application is intervening and and they would have to get the benefit of that as well i've might be able to help the court we'd like to focus today and as a result of that you're looking to get your old patent correct basically and he wants that grettir seventeen years of protection on a protein that's already in the public domain hasn't s we were concerned that we might be deemed as having waived our right to appeal that decision at that point so that so that's why we have fuel federal circuit disagreed with us obviously and here we are what i'd like to direct the court's attention to of possible i on the merits this case is unlike any of the inherent sea cases that out it relies on unlike the least because in your reply brief in sixteen sixty two you used the term mis characterize a pages ten twelve fourteen and sixteen to describe what abbott says and i when somebody says something like that i read it really carefully and i'd be really careful of using that kind kind of language ok it's if the court had had if the court had granted i'm sorry if that the but the fundamental holding in wallet was that because the wallet inventors and those were inventors by the way other than those are the same inventors and wallets and now it was dealt with a similar application related applications a year as application issue in this case the court held essentially that because it had only disclosed so rejected was that simply because you have possession of the protein doesn't mean you have possession of the proteins amino acids sitting in a wallet wasn't there evidence that the fall of the no acid sequence w core of abbott's inherence arguments this case isn't like any of the inherently cases abbott abbott relies on unlike in all of those cases no one could have gone back to any of the samples that abbott had when they file the zero seven two application and have identified any of the contiguous complete sequences of account no one no one could have done that what abbott had when they filed the zero seven two application wasn't enough they hadn't finished inventing later on they finished inventing they came close to in the zero eight nine application for example that when they filed the zero seven two application they hadn't finished inventing they actually had to develop an additional protocol that would yield a sample from which you could actually  existence of have it in their sample for example they also had it in the urine that they started off with but no one saying that the that the complete sequence of the count was inherent in that urine know what they had to do as they had to purify and isolate the protein to a point tb p two protein as being presidents being subject to this oh seven two and zero zero eight to specifications that was wrong especially in a sense that the court seemed to think that what was zero seven two application was sufficient to distinguish the prior art it wasn't sufficient to distinguish the prior art especially the second juror reference that we've discussed in our briefs and prosecution when it came when it came right down to it and when abbott had to overcome the second juror reference they relied on one thing and one thing only and it was a sequence that was found in the count it wasn't a sequence from the zero seven two application it wasn't anything else in the zero seven two application they didn't when when they had the chance to tell the examiner protein at they discovered and described in the nine one five yes it is they actually relied on a different form of a protein to get to the count it's very odd but when they change their protocol they use different chromatography columns they even change their source they started working with a different source that they didn't report in the zero seven two application and when they when they did all that one of the sources or for that i'm sorry but your support for that because that seems contrary to what  can be found if they had two entirely different proteins the protein that was the basis for the count was was a different form of the protein they actually relied on and they actually started working with with urine from people without fever of you know seven to applications as use use urine from patients with fever they started using a site is fluid later this is all part of the additional inventing that they did they weren't done inventing when they filed the zero seven two application and protein it wasn't the same form of the protein and in it it doesn't matter that that that part's be part of the count for example is directed to a protein this is unlike any other any other case in that in order from for abit to get from point a to point b to get from the zero seven to application in order to the county they had to do all this other stuff it weren't done invented you seem to place on this on this difference between the forty two whatever and the thirty whatever if that is the zero seven two application that said forty two whatever that means and had the complete amino acid sequence that was in the patent would that be the same protein if you think there's some relevance the difference in about like their weight there that the protein that they reported in the in the zero seven two application i mean was a contaminated sample but the protein that was that was in there it's not the same protein they didn't stick with just that in order to get to the count they had to rely like i said on on all these different stuff they weren't done inventing they had they had they had to develop a new protocol where they waited where they substantially change their chromatography in court reached such a result the court was was was very particular in clarifying this isn't a bright line rule here but the evidence in this case shows that to one of ordinary skill in the art viewing the zero seven two application they hadn't gotten there yet they had only identified a pure i'm sorry a significantly contaminated sample i think one of the issues with this case here is written but you can continue if you are ok if i could if i could just finish just one of the issues with this case is that is that for lawyers looking at these documents and comparing the zero seven to application to the nine one five patent it's very tempting just to see the see some of the consistency is that there are between the between the two and say well it looks like it looks like that was close enough but that's not the task of the test a written description is how the application would have been viewed by one of the ordinary skilling art at the time the application was file absolutely no patent protection as a result of the outcome of this litigation we're in this litigation as a very reluctant the fent the only reason we can even settle the case because you know it's not seeking money damages the recent supreme court precedent a very good question your honor and i don't you know have to commit but it seems to me that it that some of the recent supreme court cases make this highly suspect highly suspect patent altogether i would want to focusing on abbott's laboratory no parks and what they revealed as opposed to the disclosure in the zero seven two application and nine one five application i was very surprised by some of the statements that i understood counsel to make in light of concessions that abbott i'm sorry that you need a maid before the district court and the district court recites at page twenty five in her opinion those concessions include the following number one of them you know a a unique and inherent characteristic of a protein number two the full amino acid sequence is not necessary to identify unequivocally a protein and number three the nine amino acids that abbott identified in its disclosure document together with all the other biological dad including the forty to kill a dog like your weight unequivocally identified that protein as t what follows from that the fourth region also an undisputed fact is that the protein that was disclosed by the first filed application is the same protein and as is reciting the count you will what they're saying is notwithstanding that there's not sufficient written disclosure because it doesn't contain these other amino acids and as we lay out in greater detail in our brief it those amino acids disclosed they meet the requirements of inherent disclosure cases because number one the amino acids are inherent to the protein no dispute and number two they're not material patentability because they're not necessary to identify the protein again you need a conceded as resigned in page twenty five of the district court's opinion that only one protein one and only pro one protein has the amino acids that are disclosed in the zero seven two application squarely hold that a partial amino acid sequence together with other biological data is sufficient to identify a protein that's almost an exact quote from s that proposition in your honor as we've argued a great length in our brief that's exactly what we have here a partial amino acid sequence together with other biological data that unequivocal establish the protein th and in the interference you may recall that you know relied on the interim or if in a reference and persuaded the patent office that the engelmann reference which contained only five amino acids it invalidated the ab patent on grounds of anticipation now if the five amino acids in the in common reference are sufficient to invalidate on anticipation grounds abbott's patent containing twenty two amino acids that's pretty inconsistent in the district court so found with their current claim that are over seven to application with nine amino acids is insufficient from a written description perspective the last thing point i want to make is to remind the court particularly in light of this the challenge to the methodology that abbott used and nine hundred eighty nine in identifying protein in two thousand and three we replicated every step of the same methodology that's disclosed in the o c seven to application and we did it in the presence of experts from yet that's not something you see all the time in patent law because it's high risk if you make a mistake the patents gone but we did it there experts were there and it resulted in tb be true and so this was a compelling real world demonstration that the method find any and all invited to say anything else if you want to but you don't have i appreciate your comments why this case is different from all of this court's other cases that that abbott has cited including recent cases like cubist which was decided after the briefs where you couldn't necessarily  the art couldn't necessarily identify the sequences of the count from the sample that abbott had any of the samples that abbott had when they filed the zero seven two application again it's different from all of all of the all the inherent  cases that abbott has relied on as well as this court's case of this court's decision and sanofi counsel for abbott referred to two thousand and three as well the results of the two thousand and three experiments were were experts took a look at the results and said they don't look any better than the one thousand nine hundred nine results it's a there's a genuine issue of material fact there that should have precluded summary judgement being entered in favor in favor  of it and no matter what the results of the two thousand and three experiments were they don't negate the fact that in one thousand nine hundred nine one and only time that abbott tried to practice the zero seven two protocol it resulted in a complete failure it didn't even result in the sequences that are disclosed in the seven two application that is a statement result in he being p b p two it's not clear whether they had it whether they had it in in that in that sample your honor they they may have in a sample that's reported in the zero seven two application there was some t v p two in there but again that's not enough because the sequences weren't inherent in that sample you had to do something more unlike all those courts othe inherently cases you have to do more inventing in order to get to those sequences this is inherently it can't be established by probabilities or possibilities the same comment as a political to the two thousand and three experiments when you compare those to what happened in  hundred nine they say they got it to work in two thousand and three they clearly didn't in one thousand nine hundred ninety got something that was so bad they didn't even report it in the zero seven two application itself they said it had very weak activity judge college or noted that in her opinion that's not sufficient for written description and it doesn't satisfy this court's test for for inherent see either one last comment i would make is that on material to patent on material to pat ability that was a burden that abbott or in this case they had to show in all in order to establish inherent see that that the sequences of the count weren't material to patentability there is no dispute that when it counted when when it actually mattered that they relied on a sequence not in the zero seven two application to distinguish the prior art and there is no evidence including no evidence from their experts that specifically address that second you reference and said anything different there's no evidence from their experts saying that second year could be distinguished on any other basis we just have to go back to the objective record of the prosecution history and you see from that that they absolutely relied on a sequence of the count in order to get their