claim construction issues one which is important to the inquiry that was before the board the prior art rejection based on the whining reference and the second is once raised based on the the request that we consider be prepared to discuss kaminski with regards to patent eligible subject matter with regards to the prior art rejection very simple issue and that is whether or not the claimed new plates acid is found in a second place acid first to address issue first certainly sir i want to win it sir but there is no doubt that we were not here to argue that there are certain claims that are affected by myriad in particular representative claim twenty one forty eight those we would argue there's no dispute that those are synthetic made by man do not exist in nature under any circumstances there's no question that there is not only there is thirty three  approach thirty three and forty seven are the prob thirty four and forty eight are the factor and so not only is there a difference between what these exist in nature but more important the function of them is completely different for prob it crowed importantly is modified somehow so that you can detect it you can see it if it's a nucleic acid it's not a prob with hybridized just like it would in nature at the compliment that you were raising just a is invalid and remand the case to the board for further proceedings to see if there's anything left in your claim that passes muster i think there's two two important points to that number one i think is a matter of law there's no need to go back to the patent office to determine whether or for purposes of the prior art rejection by way and what we would argue that underway is that they're not anticipated and we don't dispute that twenty one is invalid in a mere  that's correct the further limits without b but i mean if your whole argument although as to why the examiner was wrong on the indefinite rejection was based on arco kinetics correct i believe so i know because that which is set and the and the  board agreed with the board said for a indefinite rejection on claims subject matter can be useful when read through the eyes of the specification to tell you whether or not your claim that you're claiming high and low i couldn't find a case in our court that takes the arthur kinetics reasoning and more it's just gone to claim construction for purposes of either one or two or infringement would be i think it's i think  of this claim you would have to find in the prior claim subject matter i believe what we're saying is based that's correct the law would be that that is a limitation for all purposes as i'm saying there's no there's no single rejection which we believe is very simple relatively simple to deal with and dispose of the cases well in the claims and so we would we ask that the court rule on that on the decisions or will save your re this is on the rehear but i don't get you agree with the board that there's only one limitation we don't believe that that's what the board says we said something other than what it said we believe that the boy says that the other limitations with regards to the second violin case as we don't call them limitations they're called relational constraints what's a relational constraint can you  when you're talking about anticipating a claim you are looking for the structure coined structure and the prior art aren't you that's correct and when does not teach writing teaches the for exactly the first viral happens to of been there right but what does that teach you elsewise about the fact that it's there doesn't teach you that it grew out of a longer strand write it tells you the on this claim construction issue it seems to me that the second one now the way the claim was originally written correct then then the second was a precursor correct that's correct and which claims that's correct and the claim was amended so wouldn't you believe that it's a claim to something that can be found that can be located in a specific area within a virus genome and that that's the additional limitations that the boring can be it can be found but it must not for anticipation purposes it doesn't have to be not a precursor but it's something that's very important and it's something that's not claimed but yes it is claimed and i don't have any case law that helps me understand how to review a claim like that which we agree with don't normally see where what is being claimed is based on where this nucleic acid could be found within a genome we don't normally see claims written that way i mean there are other issues with the claims of heart but maybe that's why we haven't seen any kids not with regards to this type of thing construction but the only issue in terms of pain construction here is what does consisting of means that's consisting of additionally require the second  nuclear got to be isolated they've already can see needed that this is a precursor is not a limitation so all we're left with is whether or not consisting of additionally requires that to be isolated the claim doesn't require the second veronica just be isolated it work you know how to identify it the claim invention here is not the process of isolating these things that if there is any invention here are the invention of a computer program that can scan genomic d n a look for these types of within the sequence clearly that doesn't require it to be isolated for that computer run that type of analysis and then determine within one step i know they're going well within their is there as twenty nucleotides long segment within one of the then look to functionality after that i mean that's what's being claimed is the invention here so whether or not i saw it or not doesn't even matter to the claimed invention or as a recital of the mcwane for it to be isolated so i think once about the process of how you are how you do the isolation when written it's really more about how you find which is different than isolating  thank you just a couple things i wanted to address and getting back to some of our previous discussion and also following up there is you know looking for case law where you can look at this element and i think it's important is another element in this claim that no one's questioning it's being read it's being accepted it appears in many many patents and it's being dealt with all the time is that and that limitation is what separates this from being a synthetic non naturally occurring nu acids no doubt if this was a non natural you could if you had some sequence of this nucleic acid you couldn't find it anywhere it was that would be non naturally occurring sequence ok there's actually language in this claim that says the sequence is naturally occurring acid that has these other properties but that those limitations require it to be found in the genome and are in jena with reference to something you read that everyone reads that the board read that we all read that we know what that means i have the small nucleic acid and i can find it somewhere else and what we're saying with an element be so same thing the small nucleic acid that you have you want to know if it's in the scope of the claim just like it must be and you must also that's that's one point the other point is that it's something that's come up in the brief a couple time and it came up and just a just a minute ago in this discussion of the precursor language this coin never used the words precursor if you look at the and then lastly to the issue of in re committee how to handle this case is that is i believe as a matter of law you can deal with this case and there was a lot is i've been briefing on it no there hasn't been briefing but as a matter of law you can deal with this and the claims of the proclaims the director plans everyone knows it but those are those have been modified by man they've been modified in a way that allows them to be used in a way completely completely different than the way the nucleic acids are used in nature detection as a probe and for propagation or transmission with a vector i don't believe there's any other conclusion that can be reached that they've been modified as the sea d n a was marianne yes so you didn't see d n a is generated in the lab it does not exist in nature a probe does not exist in nature it's been modified by man a factor is exactly correct laurel clark probes tag and in doing so gives it completely in very important different features and functions that exist in nature but they're not really very definite in the claims and it's not for saps one three one zero two one twelve they can be dealt with thus far how'd they get swept under the want to rock they got swept at the time just that it was actually improper they should have been as a one as a one of three by the board as well but