two that ultimately went up as myriad yes yes it's also going to create a an exception to the supreme court's guidance and chakrabarty and in the myriad decision which held which both cases held that  compositions are eligible and in this case claim one is premised on the use of a chemically altered amplified non coding d n a second when the court treats all of the allegations of gigi's and any complaints in this case as true as it must under rule twelve b six there's only one can logical conclusion that it can come to you and that is that she t g has plausibly demonstrated the claim one claims and eligible subject and then thirdly even if the court goes ahead and applies the male alast s fully to claim one at this stage firstly this claim this patent was filed eight years earlier so whatever the science was that was involved in the area was looking at as well because we're measuring whether some of the use of the techniques in claim one were routine the areas of claim claims one i believe one twenty five twenty six those exemplary claims essentially said we've found a new place where you can find cell free fetal d n a just go toget i can do with this information i can add you know understand what the timing has to do with respect to the the amplification step there was an application stuff an area the issue in the areas of flame would have been amplitude amplification generically is a known technique but we're applying this you know right but the way i mean it i guess it seems to me that your the argument that struck me as a core of your point has nothing to do with timing it is rather that sequin i said we now know something exists and use conventional techniques find it yet yours doesn't say that you are says we want to find a way the x of the actual genes and are clever idea is we're going to look for b that's not at least according to anything i see in the spec or the complaint or the district court opinion back not an inventive concept which has nothing to do with timing it is about a concept and it's there's there's a couple of different ways to look at the inventive concept of the timing issues we're measuring when when something is reaching the conventional time of the patents filed so what might have become we are using this technique in a new way those of skill in the art we know how to implement this this way but it's a new way to do it that nobody's ever thought of and that was  that if the question is is there a difference of legal significance between secret and that's the only thing that i can see as even a possibility is that the sequence i'm clean says now that we know something exists use that technique everybody would use to find it this doesn't say that this says now that we know there's a link between a and b we don't care about a for its own amplified materials so this is now a man made material that is chemically different and and analyze that material in order to find a different location of d n a we're garbus of whether those two locations of anything to the contrary what you just said that is and this is why i'm fastening on fastening are two that i guess are the last words of the claim in order to find the hour we'll look for something else it didn't i  can't find the basis for say oh everybody knows that once you know there's a linkage between a and b in this area you can go you can and indeed should look for did exist together nobody knew that there but then step one well it's it is the discovery and you're talking about the directed to them and so the question is is the claim directed to the discovery and we our position is that it's not persuade the discovery it doesn't claimant and then the other issue though as as this some of this panel recognizes the braca one case is this is directed to an abstract idea of using of using one thing to find another where you know the two things are linked together and our response to that is there is an event or concept on top of that and that is that no one had ever amplified one region of d n a before and examined that amplify material to detect a different location of d n a that by itself isn't an inventive concept that isn't enough to pass through that course one a one filter to be subject to that a one hundred two in a one of three and of the myriad patent on it one in and two decisions that claim had three parts it was growing to host cells one in the presence of the cancer therapy and then determining the growth rates and then comparing those growth rates the determining and comparing steps were just abstract there was no citation of any particular technique to do to make the comparison the determination the growing of the cells  cells to different cells control in that a variable and then comparing those two things together scientists have been doing that for a long long time doing those three steps together with cells that have been being done the only difference was in exactly mimicked a naturally occurring cell it was growing it was meant to mimic what was happening in the human body because we're in that claim you're testing a cancer therapeutic so that so needs to be working just like human cells so there's and that word that's used in the claim a sequence so we've created a cop multiple man made copies of a sequence of d n a and those copies are chemically different than the naturally occurring d n a and the reason why is the problem is that is amplification in of itself is not novel but the what they are claim one does is it requires the practitioner to create himself i d n a which is a man made material that is chemically different well that's a hard sell well it's some but it's not just the fact that we're amplifying the location because once you amplify that you actually have to do something else to it in order to detect the illegal so you're not only creating a manmade material which despite this court alice protocol applying that test we think it's also palatable because firstly we don't think it's directed to either of the discovery dr symes discovery of the linkage to sequel brain or his observation of how generally use that and there are other ways that one can use this observation using the non coding to find the coding that are alleged in our complaint and not contested by the other side and then there's this invent you focus on the one that i guess i'm fastening to which i guess is to use the expression just given nobody had ever amplified region a defined region before that's certainly not the case in sequence so on the facts it would be different well  unless you can only misunderstood it and secondly how do we know on this record on a motion to dismiss that that adds nothing to the scientific regularity of nature in that region a regency travel together generation sure well so to start with the first part of your question in the sequence on decision there was a discovery it was a new discovery no one knew about it before the fact that there was cell free fetal d n a floating in the mother's different because the last words of the claim say find in order to find the right but that find a holder to find b is the natural correlation that is the same natural that is the same natural phenomena but i something is not is not is only one thing you can do with the fact that a and b are correlated maybe maybe nobody would think if i want to find or maybe everybody would think if i to find the look for b why would i bother to look for and i think if somebody had an idea that says eighteen might be easier to find ok so i think i think what's happening here is that the my friend on the other side has tried to divorce rather and unclear territory here and we're trying this i'm trying to figure out where this goes at some point as a supreme court recognized every single thing in biology is about identifying what's going on in the natural world in human bodies at some point there are techniques for making use of that that must be on the patentable patent eligible side of the line why is is it not on the patent eligible side of the line to say now that i know that a and b occur together with a regularity that if i'm interested in the off think about finding a way that doesn't seem like the same thing as the fact that there is this regular but if it isn't the same thing it's awfully close to the same thing and how do you get to the same thing you get to the same thing through the exact same routine interventional steps that were set forth not only in this  to suggest that we're talking about the observation versus the discovery of the natural law and in that case we have the admission of the other side that even that observation is an abstract idea and i guess what we've what we've got here is is either at the start of the claim a natural law or natural phenomenon followed by an abstract idea combined with routine in conventional steps i would actually say to your honor that this case is even farther away from that that mythical line of says at least you have this very specific application that this is this is going to be a great opportunity to not have to put a big needle in to the fetus or into the placenta in order to get the sample which are conventional and routine and set forth as such in the patent in the complaint and in the prosecution history which is part of the quote the six record here now that takes me to the other question that you've asked me which is why is this record appropriate for to some deposition testimony in there everything else is claims and specification claims and specifications and it was the one reference there to the prosecution history your decisions and from this court in over mercial on remand the seven seventy two f third version of the the content extraction decision the oh i p technologies case and in judgment on the pleadings by say first is google which i think there's a lot of overlap between the members of this panel but those are all prospective decision of this court and they all recognize that this one i want to issue is appropriate for rule twelve b six determination here and there can't be any doubt that sometimes it's appropriate it's it depends on whether the knowledge necessary to decide if anything beyond the underlying ineligible matter whether it's abstract idea or regularity of nature is i guess in males language but not alice's language routine conventional and when and what not as to this case i guess i'm struggling to understand it seems to me if i say everybody would know that once you notice there's a regulation between our correlation between  metabolites and the only thing that was new was look at the number that's are in but here we have a new physical steps when you're looking for the look for a and i'm i'm kind of i'm truly at a loss to understand how i am without being presumptuous to say everybody knows that that would be a really good idea well i'm having a hard time with up with all respect your honor and i don't want to be presumptuous as the advocate standing in front of the judges i'm having a hard time understanding how that isn't just another way of phrasing the natural law or put it in my friend's terms the extract idea that is the relationship between a and b as we've been discussing but you suppose for example that the our real differences the number of nucleotide differences between alley elves was not a single one but say because they'd be a lot harder to find now how do i know that it's a good idea to look for the in front difference in order to find the at some difference when you could just look for the sound if i think you've just assumed the way the natural law that we all know because now that you have the natural law in front of you which is part of the part of the general understanding part of what belongs to everybody now you know that when you have a you're going to have the and ultimately i want to make sure that in my time  am addressing not only your questions but the arguments made by my friends areas of bacterial so for second if you look at section five the beginning of section five of the opinion the part that begins for completeness the  application when you contrast that to the myriad claims that my friend brought up the i think he said claimed twenty you had you had a transformation into an entirely different material which was starting at the beginning of that case you were yes and the discovery was that if you identify that paternal d n a in the blood that will tell you something about the fetus so that is analogous to the claim in this case where you have a known natural law that correlates the non coding d n a with the coding d n a and what the claim does is basically say amplified to determine the non coding d n a and analyze that to determine if there's a correlation there's nothing specific in the claims about a particular application it simply says as in may oh amplify using the routine conventional steps analyzing using routine conventional stats and use that information as as you see fit not based on this natural law the correlation so it's simply applying a natural law using routine and conventional steps thank you a couple things i'd like to address firstly the claim one is not direct simply when you find a you found b if you look at the claim limitations it requires that you create a amplify d n a sequence and then you have to analyze that and you may not find  and therefore you don't find be so you don't automatically in this claim as the other side suggest is once you amplify the region of interest you've essentially closed deval thing collapses into even found b there's an additional step that's required and that's the analysis  and then when when that step is performed you detect the letting fair to say that these claims cover any comparison for any purpose they cover any you can use that technique wherever there is in fact linkage just equilibrium that exists between a noncoding region and a coding region but as long as you can is one as you know that it exists then that then the technique would work pretty broad it's widely applicable i would say it's fraud it's just like d n a application it works on all d n a not just one little area of d n a it's a process that works everywhere over where but where that where there is the slick linkage to  that claim which i don't think is a proper analysis by the way but if you take that sea of d n a out of the claim you just say we found a new source of biological material at the time that that claim was filed it was a very well known to use amplification to just go get a d n a sample from a biological source just the way that it was claimed so they just said go get it don't do anything with that they said go get this material which we already know about which we already are using and go get it that's it and then some of the dependent claims that perform a test on it which was also very well known tested to see if it has a particular trait and it was just getting the material from a different source that was that was new and that was the discovered the last thing i want to talk about is just dr simon's persons back and shoes of dr simon back when he made his discovery everybody thinks that non coding d n a is junk they call it shit they literally called it junk he realizes that there is a correlation between the two there that can exist i can mean one can be a linkage disequilibrium with the other location the not than we coding region and he then thinks well what can i do with this now that i know what are some of the other possible thing is that one might do with the fact that there is this correlation well you can use be to find out is the first thing and we're only claiming using  i honestly i don't know i'm not a scientist like yourself i'm not a science do so but at least we're only using one day to find be not be to find a to the extent that using b to find it might