based on an application that it needed mention didn't even disclose mismatches let alone use them to locate modified bases and pat bio doesn't defend the board's reasoning on two of the three grounds of obviousness in the third round of obviousness improperly used the trees own disclosure in the six thirty patent against it for going into priority and obviousness i feel i need to address clean structures first there's been a question raised whether the board adopted the trees claim construction of the count and it a ten the board construed the count it wasn't just simply repeating the party's positions it construed the count to require a quote comparing now one compares t sequences of the forward and reverse strands and determines that a modified basis present at the zisha is where there is a disagreement that's the trees construction that's the construction where pushing on appeal the bird applied only that construction it applied that construction to the laird reference at age forty it applied that construction to the five five one application at a fifty three in fifty four and this is the that's the correct construction it's the correct construction because it makes no sense to ignore the mismatch that's recited in the determining by comparing staff in fact backed by ozone expert doctors on it made it not only is the mismatch rendered irrelevant under pack bios construction but the entire comparative stat is irrelevant under pack bias construction and then finally they count because it comes from each three specification needs to be construed in light of that specification there is a section in the six thirty patent talking about how you determine the position of modify base that's the title of the section and every time a mismatch is mentioned in that section it's actually used to determine the i talked about earlier that packed i o and it's the board's reasoning and claim twenty three requires that you use known inserts and then you compare you check the results of your sample sequence based on how accurate your known different tack on appeal and if the sides are that the advance of using known sequences in the inserts is just not too modest of an advance over the prior art to be given  looking at scores of the insert it talks about scoring but it only talks about scoring the sample sequence and then rejecting or accepting the sample sequence based on the score that you derive from the sample sequence there is no disclosure of using the inserts there are a lot of useful things that the three seventy five pattern talks about the inserts being used for but it doesn't talk about scoring the inserts and then comparing that and then using that score to accept or reject the samples but we're not talking about  anticipation here are talking about obviously we're talking about obviousness and so there are two responses to the pack bias position the first is this isn't the position they raise in front of the p t o so it's waived but even if this clerk were inclined to perform that factual determination here where it didn't make that factual determination that the differences are significance they found that they were actually disclosed prior art but if this board were to do that kind of fact if this panel were to do that kind of fact finding and there's simply no evidence in the record their expert did not provide any testimony on obviousness of a claim for you free and so there's nothing in the record that would support act bio's attorney argument that claim three is just an insignificant difference and in fact nourse the significant advantage that claim twenty three provides in that you can confirm a sample sequence without having to do the kind of redundant consensus sequ sequencing that the three seventy five and provides one of the clinton's twenty seven twenty eight those those claims require the use of a base link analog in order to discriminate between modified in unmodified bases the board found that because layered simply discriminates between modified and unmodified bases that's met but there is no disclosure in laird of using a base discriminating analog to do that so must recognize that because they push a different rejection in front of this or that is combining the three seventy five with the six one four pattern again there's no evidence showing why that combination would have been made if we and it doesn't though the correct standard is not whether one skilled in the art might be able to reconstruct the count based on the disclosure of the five five one application the fact that one application necessarily needs to disclose an embod treatment and then comparing the forward and reverse strands and there is no disclosure in the five five one at what cation of doing that but if they point to paragraph seventeen of or pointed to paragraph seventeen mostly points to paragraph seventeen and to be methods that are described in the five five one application that's the only time by sulfite treatment is mentioned and so even though it's in the paragraph the by suffolk treatment is not mentioned in the context of this circular molecule where you compare the forward that treatment is mentioned only four times in the five five one application at the bottom of paragraph seventeen in the context of this the distance based method in paragraph twenty one in paragraph twenty eight and in paragraph twenty three where the authors of the five five one application tell us that the methods of the five five want to look ation do not use do do not require or do not use which had a graph twenty three explicitly disclaims then the time i have left i'd like to touch on the other obviousness rejection which is the obviousness rejection of claims one to twenty six twenty three is a explicitly looks for mismatches as evidence of the modified base but it doesn't figure to where everybody focused all their attention and figure two has this nice comparison of the molecule with the forward and reverse strands on top of each other and certain payers are highlighted where determines where the modified bases are before a figure two is created so before he matches up the forward and reverse trans he compares the bi so if i treated strand the top strand to the stop strand of the untreated reference strand and the untreated reference strands are shown into a into  levy who pointed to the description at eighty seven twenty four hands indications that the top strands are compared to the top strands the reverse strands are compared to the reverse strands but nowhere in order to locate the position of the modified bases are the top strands compared to the reversed strands that that layer is only done after the modified bases have been located in order to study whether the favor priority that and interference and that's all you need to do if you address obviousness and find their claims invalid then that would resolve the obvious  of the it's way to think about this side which question in my room on the benefit priority the easiest way to think about is this is a nineteen to paragraph seventeen disclosure of we disclosed modified nucleotide identification through mismatch ok and it's really it's actually a two or three step argument it's not that see as the first ok so it tells you that the modified base that's being detected by the comparison of one to the other is by self eight the only other real fact you need to know i special modified base that you want to learn about because it affects life in genetics and humans and if you treat the d n a with by sulphate the regular c becomes a u and the not changed so it stays in metsi the result of that is that when you run your sequencing reaction however you do it you can do it as though you know ways but when you fill in the the compliment the you is complemented by a only reason in the record that they used by sulphate no other reason for this modified base detection they didn't invent this they don't claim to that that they're very candid about that and that's the only reason you use it and it says buy stuff it modified nucle caption of the modified base but the position of my t r i is that the mismatch modified base that the modified base has to be the mismatch in the case of this by cepheid treatment which is what everyone's using what everyone really cares about in general and this is you just have a special discriminating nucleotide analog that identifies them it's just got a big flag on it and it's just that serves that special function that's prior art that's disclosed in their own patent application in the six six they admitted it company for line forty two forty six so the idea of using a discriminating at a lot to find a modified base as old as the hills like the other claims what they're basically doing is they're saying this circular sequencing platform that we invented can be used with a couple of bells and whistles one is identifying modified bases with myself i they'd made by sulfites old there's no reason you would combine the two but admit that these discriminating  in there are patent based labeled the label is on the base of the new of the of the nucleotide and they their argument is that in our or ours being packed i was version of a circular sequencing platform that of body mint is a system that doesn't work very well with the base label right so it's actually the motivation argument the fact that they didn't invent discriminating nucleotide analogues in my case and my friend you will not come up and tell you that they did knowledge reference you just talked about and i think i could i couldn't find an analysis by the board and subpoena on those i think the analysis that they that they adopt it was right wouldn't you want what they focused on and why they identified little lost in that you know maybe we could have done a better job on our end is that you would want to use you've got this new circular platform that's wonderful that's our company the back end kinds of things you'd want to do with i dentifying metsi i think you're going to hear about that in the future it's important so they took an old way of putting that they thought they actually invented the circular path at the analysis of the board is dead on because it's not whether respect that their answer is well you don't like base labels nucleotide analogues the bullet point was the or the balance point was you would be highly motivated to use a really good way of identifying modified based on this circular path form and the substantial evidence in the record to support it is that there's you're not limited to base labelled nucleotide analogues by the claim so why is that a problem what the board on this not to mention the strength of the benefit position which i which i started with so if there's a lot of questions i know it's a complicated subject matter ok thank you very much i appreciate  thank your honor just a few brief points to a bottle mr ramesses two to three step argument analysis for why they're entitled to the priority that's an obvious analysis what he did in his presentation was he took a disclosure from one part of the five one application took a disclosure from another part of the five five one application and then put them together in a way that does not satisfy the written description requirement  of this court case law and its predecessors case law which requires some sort of blase marks or something in the in the record that shows that the inventors had in their possession the count now he talked about two things in particular one is is the description of modified faces and that it includes beisel fight modified bases it does but there are twelve other categories of modified bases that are listed in that very same paragraph and there's nothing in paragraph seventeen that would say use that particular modified base in combination with the circular molecule yes i said something else that i thought was really the use that the phrase you the euro still simulates t the paragraph twenty three tells you that's not their invention paragraph twenty three says we do not use methods where you simulate city that turn into claims twenty seven and twenty eight the point is not whether the presentation at the cold spring harbor meeting tells you that base linked nucleotides cause enzyme in addition our expert looked at that and he didn't say it was limited just to the circuits to the smart bell molecule which is the preferred embodiment of the three seventy five patent he said one skilled in the art would interpret that as a general problem and be led away from combining this on patton with the three seventy five that was their expert he didn't provide any evidence any testimony obviousness of all the claims and you can find that at eight hundred fifty nine to sixty which is packed arguments and a twenty eight twenty nine with the board relies on that specific i'm not even in its obviousness analysis unless there are any other questions see the rest of my time