please the court your honor the district court improperly found patent ineligible an innovative method to create an unnatural preparation of enriched fetal d n a using human engineered size filtering that balances competing considerations and the problem with the district court's analysis is that the claims are directed clearly to those thresholds that's clearly w then it goes on and it deals with the selective enrichment and it goes to the point of coming to us as just leave to a fraction which is an orderly constituted and if it's getting to that renaissance i think it's clearly directed to selecting a star ice point and uses the language in the claims and not reach changing that but let's say for example five hundred years approximately and it's saying that's a good point from ahead at human engineering there's human ingenuity judgment made that that's the point where you keep enough feed old you increase the field and off but you're not eliminating so much d n a that you don't have anything left and someone who wasn't on  extracting the d n a producing a fraction by size discrimination and selective removal staff which can be done any number of ways one of the ways of doing this by the way is through a microarray that's claim eleven of the of the ni do you do that you can do that in different ways you can use electrophoresis you can use a centrifuge there's different techniques they can do that haven't been applied necessarily to sell free d n a this was the infancy given to you or your claim or know whatever but there was actually a point of innovation in selecting the number three hundred and the number five hundred and the reason that point of integration is not just flow from the idea that maternal s also incorporated a lot of back and forth testing in advance to assess how do we maximize the amount of fetal d n a in a given sample every sample is different and there are a lot of factors that go into it and so from an engineering standpoint how do we pick a number that's not necessarily all feel the innate but keeps us with the sample big enough to actually then later on for diagnostic tools to figure out what they want that's correct so it's not the correlation between longer and shorter it's the engineering of keeping in mind that correlation how do we choose sort of a perfect number that is going to work the best with diagnostic tests that people need because they've got to have a big enough sample that includes and enough we don't want to make our sample so small so there's engineering decisions that need to be made depending on your nature of your cat that's human judgment focus on this engine goes i want to make sure you're not sample of an inventive both sides differences nobody invented that there's a tendency well what the number is to divide it that is a human judgment as to where you want to make the break point to balance competing considerations in different contexts it may be different that's the point their own witness doctors that has said well where you set that number depends on what you're doing and how you want to do it you may want longer d n a for some purpose we may want to just make it seven hundred or a one thousand well or you may want to get rid of so much of the maternal d n a because you're crazy to get rid of it all and you make it one hundred and ten so there's a judgments that are just part of the process and they're not a natural the specification here describes the invention as being directed to the supposed the discovery of this size variation in d n a fragments and if we take a look at claim one of the  was one a one correct is that the type of plane type of subject matter that falls within eligible classes of subject matter now this is a process rather it doesn't claim being the natural it is a process in precisely the same way that the claim in areas of vs sequined was a process well that was simply amplifying an analyzer it was obtaining a correct i would then the steps are amplifying and analyzing right and here the only difference is that instead of amplifying we have separated so any st step that's a physical step and  it changes the composition of the pool of d n a separating as a physical stuff it likewise changes the composition of that pool by removing certain things from it but there is a long line of president that simply moving one natural material from its environment and then analyzing it is not patent eligible and that's all that is claimed here now we heard a lot about the suppose that human ingenuity in identifying these three hundred the supposing human ingenuity in those thirty thousand five hundred numbers as giving rise to eligibility and i just want to make clear nothing in the specifications suggests that those numbers result from human ingenuity they result from that conventional technology that was used to perform the original test itself this is appendix forty one column five of the nine hundred and thirty one patent what we see is that the latter's that were used to analyze the size of the d n a fragments cut off at three hundred and cut off at five hundred because of the conventional technology that was used all the patent then says is if you want to sample that is enriched for fetal d n a you're going to choose the fraction that is smaller than three hundred dollars or the fraction that is smaller than five hundred dollars because in the results that are set forth in table one as a matter of the natural phenomena and those are the fractions that have more fetal d what our witness said in her deposition was of course depending on what you want to do you might choose a different fraction of your enriching from internal the an a for example you would choose a larger one that doesn't detract or trying to from your point that the amount of field versus maternal d n a in any given fraction simply is the natural phenomenon that the inventors here purport to have discovered as the basis for their invention there is no description of any human ingenuity whatsoever in a riving at any special way to take advantage of that phenomena instead what there is are concededly routine steps to do nothing more than analyze the d n a that's in that sample having removed some of it once again we're talking about was the case in aereo so as was the case in cleveland clinic as in the as was the case in a number of this court's presidents addressing the eligibility of method claims here we start with the composition of natural materials we end with a composition of natural materials all that we do in between is separate some of it from the other and analyze it in this entirely unspecified fashion so at the level of step one what claims directed to you they are directed to nothing more than the size variation within the pool of d n a at the level of step two are there any not argue any innovative techniques or new and non conventional techniques that are being used in that method the answer that question as i know the only thing that we heard specific reference to was the use of these nucleic acid arrays that is described in column three of the one  a motion to dismiss alumina had the opportunity to put in expert testimony contesting the proposition that that is routine in conventional technology and acted not to do so we have shifted the burden to them by pointing to that question is no there is nothing in the pan specification that suggests that this improves over conventional technology what it says is that it makes use of conventional technology the only thing that is different is that it is using that conventional technology to analyze this d n a sample based on size differences now we can test that but even if it is that's a natural phenomenon at issue and this court's precedent supreme court's precedent is clear that you can't import into stuff to allege novelty from the suppose that natural phenomenon itself substantive gist of what the clean is directed to and not merely the language that is used to describe that substance that's what it was all about so i would suggest language matters a great deal  matters to the extent that it describes celia's differences and in cleveland clinic this court was presented with that linguistic question and so head that distinction is too superficial you're not this is not merely a task of pursuant to claim twelve includes detection as one potential form of analysis so all in substance the claim here is directed to is natural material get rid of some of that look at what r detection is one permissible form of analysis another permissible but what if you have a mixture of things which because it's a mixture is not practically useful when you separate the mixture into two coalitions which of extraction the answer to that question is no as the court has a myriad simply removing something from its natural environment does not confer eleven dollars eligibility and that is the only thing that's happening here notably those import what congress expressly rejected as part of the patent system into want to own one and give it why i know what i want to do your honor is focus at step one on what is the gist of the invention and in cases like areas that this court has what is the gist of the invention i thought of what is you claim directed to correct and as an errant what is the gist of the invention what is the claim directed to in areas where the method comprising is not a substantial difference the claimant area also was more specific i agree the claimant issue here is more general but the steps of that nothing claim are indistinguishable as between the two and here are the patent specification says that the invention is predicated on the surprising discovery of the difference in size of fragments of maternal and fetal d n a there is nothing else that is described in the patent hundred and some fragments are lower than five hundred and when alumina used conventional technology to cut the d n a up into chunks of various sizes some of those sizes were under three hundred dollars somewhere between three thousand five hundred  evaluated that that is simply an evaluation of the range of fragments sizes that appear in the human body there is then obviously a question of the natural law is what state for me the natural natural phenomenon that below three hundred base pairs despite american axle i still believe it's important you can actually identify what it is you think the natural phenomenon is then i'm referring to table one that at the size of d is overwhelmingly maternal that is the natural phenomena and what is the usefulness of that separation determining what point approximately you have something that is more useful and more  indicative there is nothing in the pattern specification about that all that is in the patent specification is that size distribution and the assertion that the pending on what you want to do you might want to pick a sample that is however let me let me build on the horsey analogy what if you did discover that a particular size of course was a better racer or a particular size of course was better for some purpose so you chose what size do we keep and what size to exclude because you found that that created a better tool one of them hooks up much better to the cart you want to call a crusher lay in and the other short had done tests to determine that some particular ratio of maternal and fetal d n a was optimal in order to achieve some particular result and claim that that was somehow unexpected or that there was some particular usefulness associated with that that was not simply a function of the size distribution itself but was this function of something additional that they appreciated but we can summary judgment and they introduced evidence that demonstrates that the numbers they chose didn't exclude all the big horses or segregate out all just a little worse sees you lost some of both in the process and the reason they chose those numbers is because it created a sample size that was actually well suited for types of diagnostic testing that would need to occur and contain enough of what you were looking for and that's all evidence and this is summary judgment how does the district court disregard all of that the one summary judge the latter part of that your honor is incorrect that is not in the record what is in the record is the amount of maternal and fetal d n a in those samples and that is it illumina did not put in any expert evidence or any evidence whatsoever that suggests that these particular ranges are optimized for any purpose whatsoever the only assertion in the patent the only evidence of this is in the patent and the only assertion in the patent is the sentence column five of the nine hundred and thirty one immediately preceding table one that says depending on the downstream application the d n a size chosen for the enrichment of fetal d n a will be smaller than three hundred dollars or smaller than five hundred that's it there is nothing in here that suggests a judgment as to what is going to be optimal for a particular purpose and again thirty thousand five hundred are numbers that you not result from going to ingenuity they result from the commercial ladders that they chose commercially available in order to engage in the test that led to this suppose that discovery has that itself would according to illuminate in french and i think this is an important point in our writing at this discovery about the size difference  eighty seven percent in another in terms of the percent defeated when you make this cut the reason that's important is there is no constant this is an ohms law this isn't some law of nature that three hundred is it's you're going to always have eighty percent or twenty percent last it's different in different people and it might lead to the extent that she hints your entire natural law claim on table wine and her representation and that amounted to an average there's no way we could possibly accept it because actually runs matter of fact that's true and and so the point there is that there is no constant there is no you're all you know i discovering that at three hundred dollars you're going to get eighty percent just waiting twenty percent that way or that so it's like if there was a mixture of courses that were all different size me said you know what in general we want to have a large heard because we need to carry a lot of stuff but these are stronger what we find is that at six hundred pounds or that's right a bad number  five hundred pounds you keep enough strong ones but you don't slow or heard so much that you have nothing left that's human judgment that's engineering your honor that is not a little a natural law that says this is the tipping point i would think that engineering is a bit more pointed or was suggested and that's to breed horses for a particular task and to invent a different more you know one assumptions that you want to work with and say no no it's not the substance you want to work with there's maternal d n a you want to work with the fetal d n a it's not that that's not what it is you have a mixture still you you have to make a judgment how much you want that mixture and where it land all right we are making a judgment as to what the right hinge point is for these processes that are scientists that are laboratory processes that you're using but let me say this set cells direct your honor is is nearly on point it's nearly directly on point that's liver cells that you want the ones that can survive freezing so you freeze them which is a trivial step everyone knows you could cry or freeze you freeze them and freeze them again and you know what you end up with more live for cells from the human body that you want because all you're doing is separating out the liver cells that can survive cold versus the liver cells that can survive cold how is that any different it's gee whiz there is there's still free d n a in the sample you can detect it this is saying there's a principle that in general maternal d n a is larger than fetal that's a discovery and the way we're go marshal that to a practical laboratory technique for a specific type of cast is we're going to find we're going to do testing in experiments which are some are shown in table one and we're going to say ok if we do it at this we keep enough of the good stuff but we don't get rid of too much of the good stuff and that's a human judgment that's made based on laboratory analysis and it's really no different than cells direct thank you counsel thank you