in the other regions of the anthropoid it was showing that it was possible for the first time to make antibodies against t n f and to characterize t n f in such a way that others in the field could then any method of making and indeed everyone concedes that the hybrid only technique was well known and routine in one nine hundred eighty four and therefore novelty could not possibly have resided in that technique and so you're on to what we would say here is this is a case in which we take two principles and bring them together the first principle is the principle of area that one way properly to describe the genus is to identify the cut the structural features common to that and if  guess that's a concern i have with your case is that your your premise is that the claim for a monoclonal antibody is a broad genus claim that cup of covers any possible way to make this monoclonal antibody not to be any antibody that happens to be a model on all but had some different technical understanding of want to call and to by that being the very definition that our opinion and t that your client cited to the prosecution history it's a very long definition that goes through punishing detail about how such monoclonal antibodies are produced by happy gulls i think you're on the answer to that now if you would be but again i think i would come and maybe the answer is that i just misunderstand and or that i have a different view of that you want to but i would say that the answer is that we're talking about a sink and even if people understood at the time that it was made by a particular proces in other words i think your honor the point we have to look at the reasons for the change and what and the fact then and i think this brings us then back to this question of written scripture and the fact that what happened here was the office objected to or rejected the dependent claims on the to fifty two those are all dealing with time erik and humanized genetically engineering antibodies in the face of a written description rejection and applicant cancel all of those claims and so  i didn't see you citing in your great grief our bill there is concrete opinion which talks about the idea that when you cancel subject matter that you know claim subject matter from your application you can't try to recapture that cancelled subject matter through and allowed claim that was an amended but nevertheless you can't try to recapture that genus itself is undescribed and indeed i would go all the way back to russia can say that was the situation in russia there's a validly described genus claim but a lack of description of a particular species of that is an absolutely common situation if in fact it's equivalent under the law or you don't it's assumed that it's not literally covered or else you wouldn't have to resort to equivalency which is not so easy to ok i would say that in terms of equivalency whatever equivalence are available are under the doctrine of equivalence they cannot include the precise subject matter that was  so there may be instances maybe even here where there are equivalents of character humanised but one thing is for certain and that is that kind merrick and humanized cannot be equivalent and there is there are extra people of extraordinary skill in the are not ordinary skill in the are due to to draw from that that ordinary ordinarily skilled artisans in a few weeks all know how to make a comment and the body isn't reasonable and in any event i think toward an early skilled artist since it certainly was later arising technology there's nothing other than that's first publication in november of ninety four a publication is a publication is not pardon me a publication is a publication that is correct i wasn't unable i don't believe it was enabling but i think the question is even if it enables does that mean does it in fact they do the opposite i think it's that in the record it p s three thirty three where in the summary of that paper wintery colleagues jones rather winters the last author in the paper  a different way of getting at maybe some of the same issues we're talking about here let's assume for the moment that human eyes antibodies to american invitees work describe are enabled so you have to then establish saying your side has to establish that there was some kind of prosecution history stoppel that they are barred from doing this now throughout the prosecution they seem pretty clear that they want coverage of america's antibodies humanised antibodies that they're not giving it up and towards the tail end of january two thousand they proclaim that their claims are covering antibodies per se so that suggests that they are looking to restrict their claim do just hybrid on the produced antibodies so why is there a disclaimer under those circumstances because the focus is not on what the applicant wants or intends it's on the impact that the prosecution history has on the public and the competitors so no competitor or other member of the public could reasonably read the record any other way there are two clear disclaimers twelve years into the patent is the first time we ever see the word genetically nine years and then we get to one thousand nine hundred six and the examiners of course in the inventors do as you suggest it they let the examiner know we think they should cover come here to humanize and genetically engineer at the bottom he says you have no support for that cancelled when the examiner will no longer inserting an incorrect recollection they were added at the same time ok or and it's claim forty one also receive say we're concerned with limiting that claim to mouse monoclonal antibodies because we're not sure if you limit it that way whether it'll cover come erica humanised and we're particularly interested in it she thinks coverage for those types of antibodies and the senator said not the dependent claimed or explicit to those types of antibodies the examiner rejected them on the same basis allowed it was allowed in response to a declaration where the examiner noted in allowing the claim i'm withdrawing the rejection on the basis of the engelmann declaration which made two points important because it reveals the examiner never thought application forty watt covered by merit and the bot and so therefore when she allowed the claim it was purely after being convinced claims which other broad claims rejected on the scene besides that you said different language like inhibited by the reference monoclonal that was a one twelve written description rejection of forty one and there's a very consistent pattern of we'd like to get coverage and the examiner saying you're not entitled to it you have a chance relation of claims in the second instance you have a narrowing amendment in the first instance so as i suggested the impact on the public is what matters i think as a competitor you read that and say they tried to get these claims they couldn't get them that is outside the boundaries of their intellectual property and that's fact implicates all of the issues on appeal including american bodies that claim certainly would have been rejected for encompassing crime eric antibodies you would have had to delete that for lack of written description and then you're saying ok that application claim matter which was ultimately canceled for lack of written description isn't cannot be used as a bar to a stop i don't think i think you're in the way i would look at that is to say that all of this is not the correct reading of the prosecution history that the deep end and claims were never rejected for the improbably dependent they were never rejected and so if you assume the examiner is saying is hearing the applicant say i think claim forty one includes genetically engineered antibodies are the examiner and that if the examiner disagreed the examiner should have come back and said then i reject claim forty one as embracing subject matter for which there was not the right description nor enablement that never happened and in reading of the exchange and if we read it differently and same want to plan lanta body never embraced genetically engineered species in the exam in his mind then we in that case there would be no narrowing of claim forty one either way you can