my argument today on the two dependent claims that are developed in the briefings claims nine in one thousand time permitting i may make some comments about claim one as well i like to begin with clay nineteen which is the court knows has an alternative source of enzyme to the transgenic mammals that are the focus of the event repat by a marine's experts testify that they understood the disclosure invent three and the prophetic essentially to criticize or belittle cho cells as it in syria or source of enzyme because according to vend bree knows that sources more difficult to work with it's not as efficient to propagate enzyme in that fashion there's other prior art that we've brought to the court's attention and we've brought to the boards attention they can feel seventy five patent which is much more important i would say because it showed that  from a different source that she still darkness and would read that to disclose among other things the same process that i am free talks about with the mouse no version as using called product by process claim which makes essentially made it irrelevant that's all through various argument which even if we agree with you and it's a pretty good argument but it's one that we can't review anymore after understood similar stuck with the fact that they took it despite the fact that it was a product by process plant reference in the petition for that much then you're left with  the question i think of whether a a passing and denigrating reference in a single reference now embry we're not talking about other references that describe show sells and the ability to produce  for previously untreatable disease and i would say that that is simply not an adequate disclosure of this note there's no disclosure in and pretty of a therapeutic use so and claim nine which was invalidated on both anticipation and obviousness grounds that you have a statement invent three that the enzyme is preferentially predominantly in the or that is greater than fifty percent in the precursor for there is no disclosure of what the board agreed with appellant duke university was that claimed the essence of play nine which is that the and combination form correct it's a mixture it describes a mixture of precursor and non creep precursor it does not describe a pew or a one hundred percent or explicitly precursor and to take the phrase and claimed nine which w quote is a precursor and read and has the board did to say is or is not a precursor is not a logical or sustainable interpretation and the words rationale was predicated on the  preamble if you will to claim one which was it's a method claim obviously that includes a number of steps and it uses the word comprising to introduce those steps and when we get to claim nine which adds a narrow limitation is a precursor of the board said well the introductory preamble to claim one from which nine depends begins with this open language of comprising and that allows precursor to be formed by a string both precursor and non precursor you could perform it by a number of other means injecting it with a hypodermic needle but you can't perform that step with non precursor en a suppressor when you see a problem is something everybody would do if collectively see enough of the problems that you would start giving it to everybody at a time correct so and they said it's that it's a predictable when after you've given this enzyme to a sufficient number of people it is clear that quite a lot of them get the antibiotic problem and then you would do it prophylactic lee either or choice we don't first immunosuppressants are serious drugs that have serious side effects you don't simply give them lightly as prophylactics second immune reactions to recombinant proteins were rare and incurred in quote very few patients that's the that's the prior art according to brady and there's no contrary prior art third as of the time of this invention there's no record there's no prior art of any administration of this study was eventually expanded but he sees in patients one in two not only immune responses but a quick onset within three weeks which is very different from brady brady the patient didn't even develop antibodies for a year and wasn't administered immunosuppressive regimen until two years later so dr chen sees this he puts it in the specification quick onset of immune response and anybody titers and lack of efficacy as those anybody anybody titers rise and he concludes that this is a serious issue with this enzyme in this do and he teaches the medical community about both of those things and he proposes a solution but pretty medicate them with immuno suppressant even though there's no prior art disclosure whatsoever to do that in this context that is enzyme replacement therapy or elsewhere there's absolutely no disclosure anywhere in the prior art of that and it works so if that's not an invention really what is he discovered a problem that was not known to exist and he found the solution for and on this record is dredged benita said originally of course it's often to be original  it's certainly describes a new reactions and i believe it does describe cohen minister or priest ministration so this is this is a gift from duke university in dr chen to the medical community which the community has relied upon it's a bona fide invention and this court has said a number of times that while commonsense has its role obviously in patent law it has its limits as well and it's very unusual that it can substitute for prior art when we're talking about two things number one a missing limitation from the prior art that's prophylactic use of immunosuppressant and number two the essence of the invention which is that is the essence of claim nineteen obviously but for playing nineteen the essence is prophylactic use that is absent from the prior art common sense is not a substitute for that type of an invention oh it's all you've consumed but you want the same for a the record developed we did actually urge it prior to that decision i can i can point to the record where the issue was raised specifically let me if you could be two seconds here the board doesn't didn't the majority did not yet if that wasn't raised they just said well we can do it anyway ok so let me just go back to was it raise or not and the first point is the board noted that the  request for a rehearing bio moran argued and this is on a four zero four when there are a finite number of identified predictable solutions is obvious to select a particular dos so that actual work you know hands on hands on work they did they took they made that enzyme and that was what their laboratory was working with and they used it to set up their clinical trials of course but one doesn't need to production to so our experts at gate both experts we had a production expert dr progun who gave you know pages and pages of that liberation testimony without one of the ones that it was that they moved to exclude i angry but our experts did provide a lot of factual information to educate the board on from a production expert and from dr pastores as a medical doctor he was our main expert on a person warner school in the ar so we had plenty of testimonial evidence and evidence to inform the board of what the state of the art was and help them read the rort through the eyes of an ordinary person or person of ordinary skill and if you really thought a person aboard you still in the it is possible that other sources of human ethical cassaday such as resulting from cellular expression systems can also be used for example i don't have that that yet there's multiple made in show cells this teaching of indri they kind of went off on their own they did their thing they actually found a nice way to another way to make it which was in transgenic animals but you can't rewrite history eighty percent of all fair pretty proteins ever approved by the twenty and then if you look for in the examples detail purification procedures are reported example three on a four eighty four so be angry has a lot of disclosure about claim nine if you interpret claim nine to be limited to only the pure precursor and no other forms of the protein either you're going to want to share by the precursor i mean if that's if that's what we in forming of it in the patient you don't want to give them such a thing as a purified precursor so let me just do a visual here so the molecule as a as a as a protein is a long long protein and the precursor it one and the protein there are the spa straight sugar and phosphate groups and the precursor form it's the whole molecule as a certain like your weight now if just chop off parts often in so then you might have something that mature form would not have it's a little important part of the end so the precursor was the active form and you want to purify that you don't want to give the patient the interactive for you have an effect amount the precursor doesn't matter if there's something else in there but in the ideal world you're going to purify the f d a is going to want you to purify it so they didn't go the extra step and go through the embryo and point to the other so i'm not sure what was the question i was commenting ok have to be completely pure then we don't need to worry about this purification issue if you take a very narrow interpretation of plain nurturing then the question is does danbury actually teach purification and i pointed to where testimony on that point that the war didn't go the extra step because they didn't think they needed to hammering might make a difference and whether if we were to disagree with the board's claim construction which is a legal issue whether there's anything to remain and the question of where they were or whether it would be an outright revers proposal which was adopted by the board that it required exclusively precursor so on the anticipation finding i believe that argument is waived and there is no basis to remap but about the obvious on the obvious precursor one could argue you could petition or make that argument i do not i do not believe the petitioner made that argument your honor because they did not address the issue of exclusively precursor either in the petition or in their reply so there's just no showing on that and in fact to remand for that purpose would put us in essentially they don't accomplish and were in on claim nine where they'd be trying to rely on common sense to fill in a key missing claim limitation that's the essence of the invention and we believe that would not be appropriate or necessary should be a straight reversal thank you thank you there's no revised