may please the court i'm going to start with written description and then i'll turn to enablement a little later in the argument the district court made three fundamental but related errors that require that the case be remanded for trial and i want to summarize what i think those three key errors are and then we'll come back to them in a bit more detail first the district court failed to recognize that where a well known class of compounds is claimed as part of a combination claim and where the discovery of that class of compounds is not the inventive contribution there is no need to include a detailed description of the members of the class and indeed here the district court went even further and ruled contrary to ariad that without examples the patents are invalid well your general rule was there's no need to include a detailed description of the members of the class i would guess that even the counsel for boston scientific wouldn't probably disagree with such a broad statement but here there were no members of the class to school and that's different from not in that's very important in fact the mining properties of mice and very well known very well understood at the time the parts of the molecule that were responsible for the binding to receptor well known it provides a good deal of structural information and if we look at this court's precedent if we look at the area and look at other cases examples are not necessary where there is a known correlation between structure and function in the literature the court has said that many times the second fundamental error in the court made was that contrary to area the court ignored the extensive factual record as to the nature of the invention the existing knowledge of the field in the pri two differs from the one nine hundred ninety seven in the six six two seems to claim a sub genius when the only thing disclosed is a genius and so i'm that seems to me a little different than the one nine hundred ninety seven situation where the nine hundred ninety seven planes arguably exactly what you argue you've disclosed verbatim word for word that's at least my understanding of the difference is that not accurate i don't think that's right your honor i think that the macro sickly crying analogs are the same as the large of analogues first point i don't think there's anything in the record and second that argument was advanced on appeal by boston scientific it was not advanced to the district court that argument was waived because it was not made in the district court it appreciate what i mentioned and am i correct from a chemical standpoint wouldn't a single change in the trying still technically be an analog to rappel moral sense i think the answer that your honor is you have to go back to the declaration p twelve in the m two or one would have known that you don't want to make changes to that i think in light of that testimony i don't think that the words macro sickly trying really add anything to the larger class of analog str so you can read through dr drummond since opinion repeatedly is making statements that it is defined only by function and the problem with that is first there is a requirement that there be structural similarity to a single well known and well understood molecule and second the court as i said earlier ignore all of the evidence that was in the record on the correlation between structure and function it just it's nowhere to be found in the district court let me let me ask you said it and your first point that the critical errors that the court was applying the kind of analysis you would apply to for example a compound patent had read a stent having a coating applied there to wear and said coating comprises a biocompatible polymer drug mixture and said drug is now a substitute  my point is it isn't that subject matter that had already been invented in the claims there are claims in these bands your honor that cover subject matter that is novel combination well i'm i'm trying to been explored it had been published it was in the literature wrapped in mice and then it's analog if you read the summary judgment going on obviousness you can then you she was not before this court and you're only kind of getting a glimpse of it by looking at which i drive into the room but it's not backs in but by virtue of the argument you're making on coming nation in other words if i were to say for example that i my invention is  time in the in the system i don't think that i would be able to avoid the kind of written description analysis that we use with respect to the substance simply analytical line from the line that you would employ if you said i claimed you know a preamble for purposes of use in a in a pill coding and i claim the following compound and all of its analogs you know i mean to be clear we're not saying that you avoid the written description analysis of it just what you are suggesting you do a different kind of written description analysis as i read you very i think what we're saying less rigorous analysis in fact well you know we're happy with either one because i think they're fact questions that are presented here any way you look at this but the invention here under area i have to look at the nature of the action that is the starting point in the question is what is the inventive contribution there's no discuss these tests at all and it certainly doesn't indicate that they're well known in fact it actually kind of indicates the contrary me doesn't this patent and by this i'm talking about seven two eight six mechanisms for most agents employed are still unclear the ideal agent for restenosis has not been identified the precise mechanism of rep a minus and is still under active investigation all that suggests the opposite of what your don't say in the patent anything about the pool i mean it is cited but you your assertion the patent is that this stuff is still under active investigation not yet determined and isn't precise yet and i agree you referenced in passing but not for this formulated the enablement issue in its infinite thirty one and a thirty very narrowly and the court said the issue that she was considering was merely the issue of the amount of experimentation to select the analogue and with that access into our essays and tests to select them so the question is whether a person of skill in the are whether this is within the common knowledge of people who work in the field the selection of  unchangeable i believe they are in are well i think it's sufficient to raise the fact issue for trial on this that those are the sorts of things that a jury would be entitled to consider boston could argue the opposite but we've presented the evidence that these assays and this is on our ticket and you so don't worry about that i'd like let me ask you to to make sure i understand just how well for lack of a better term how broad your ruled that these claims were definite because it was tied to the structural similarity to one specific molecule and that provides that ok you know my and my claim a having a similar function because of pertinent structural similarity i e really saying if it has the same function it probably has the same roughly in all important respects the saying structure would that be ok with that be it a legitimate way to claim such that anything that worked with being within the scope of the of your patent i'd be very skeptical of a claim is there i be skeptical of that but it's not at all what we have here because while one cannot claim purely by function that's where drummond's and focus was what this court recognized in the area i that there are a lot of different ways that one can satisfy the written scripture requirement partial structure or a known correlation between structure and function and that was the piece of that i think that's where she went astray was ignoring that in the blue brief page twenty one quarter stated in order to prevent a copyist from easily avoiding the claimed invention by selecting a known analog of wrapping myosin with the same biological activity the inventors the only mention in the specification of analogs of rapper myosin is not a prophetic belief that such analogues would work there is no statement that we believe because there are similar the work there is no statement that they hope they work they might work we prophesy they will work the only mention of analogues is in a laundry list of potential experiments we start with possible analogues arguably would be a starting point for one of the skill of the art to turn to so even those twenty five for example are in fact well known based on cottons or otherwise or there's at least a question effectively that they aren't isn't that enough of  no dispute that in the cottons reference there was no evidence that these analog work for the claimed purpose it did not work the very first and only look that he'll well that doesn't mean you feel written description right written description is a lot to be a trial and error sometimes or any isn't well the question for the fundamental question for a description at least i understand it is did the inventors possess the invention is this something they invented far from claiming they invented it they said the opposite we're going to leave it to someone else to do the experiment to see whether inventor somehow landed upon the right polymer as well that's not in the specification either they list both kinds of polymers to be experimented upon but isn't that more when they will issue descriptions it's both your honor is both because that for a written description the question is did they invent this that they possess the invention of time that the case rightfully and they could not have more clearly said we haven't possessed it we're suggesting you go experiment to figure out whether you can possess or if you have to continue the experimentation that's when they will absolutely and there's a continuum here your honor and and i've described it to some of my associates in the bend diagram where there are some issues that are written description some that are unable meant and some that clearly overlap i would say this is a case that clearly overlaps and when you have a circumstance where in one thousand nine hundred seven the inventor say let's try this experiment on any number of of chemicals not just analog but anything that might work any number of po stents not on stents administered worley etc let's see what works well you're showing simultaneously that you haven't possessed it at the time and that it would take on to experimentation to get to an invention and remember your honor it wasn't till nine so why isn't that in fact demonstrating possession because pressley say those words if not nine years later when they added the claims those exact words that are in those claims i did nine years later you were in the specification as if your honor depends what words around it i mean that they could have said we think this will work or we've proven this will work mattress like black tones which case i think they would have a pretty good argument written description alternatively if they had said we don't believe this will work i think that would clearly disprove that they had  possession here of the relevant words just above the sentence you just read of the fragment you just read experiments they weren't claiming that they had possession of it they weren't claiming that they thought it might work they were saying let's work on it let's see what happens again i'm reading of the word experiments like frankly i'm putting a gloss on this it's a little it's at best ambiguous what this means but the best case scenario for corners in this case is that they were thinking that someday they might try to figure it out and importantly  below this list this laundry list of agents of delivery mechanisms of polymers etc there are actually four specific experiments laid out and the only one that's relevant to this case is  fact this is a combination as opposed to a claim to this compound yes alone if i were to invent a new form of automobile engine or i give you all the components of the cinches radically its operates in a way very different from the internal combustion engine that runs on fuel and what i say is here are the components of the engine and you will use fuel which will be black strap molasses or some similar substance would that be invalid for failure to describe the with sufficient specificity the fuel your honor i think this is what personally i was trying to get at when to use the word auxiliary and you were getting at with what's the inventive aspect of the claim to put it in a colloquial term of the court will forgive me we may cut the patent prosecutor a break when we all recognize that what's invent but here is where the pattern says and this is that three forty eight to fifty the conventional approach has been to incorporate the therapeutic agent into a polymer material which is then coated on the stand when that's the conventional approach and then we're squarely in the realm of carnegie mellon carnegie mellon deals with this issue precisely and i think on ambiguously i leave it to the court to decide whether herschel are as good a law i would note for the record  briefly to your discussion of the six six two patent and you asked about the subject in us and i believe you're absolutely right as to the subject there's a second important distinction in addition to the subject his argument which is that the six six two calls out dosing ranges and results so it's demanding even more than the one thousand nine hundred seven pounds to the ninety seven patents just say you have to and you're saying it's more difficult to find an analog that will actually work with those exact number of brands and everything else makes the needle fatal to the six hundred two claims as a matter of civil procedure a party winning on summary judgment can't wait if we only let bring it by definition a limited number of issues to the court's attention and summary judgment and if we when th and on an issue of law or on a summary judgment perspective if based on this record the court finds that it can find the same where you can affirm an alternative ground if this is if you want to phrase it as an alternative grounds for review  but we haven't waived anything if they want to argue there were fact issues below that run developed they're free to argue that if they want to do the job of the appellate equivalent of a fifty six that's motion they are free to do that but this court is perfectly at liberty to say an alternative sentence i think is the key to this argument both in terms of written description unable meant as a result the proper focus when assessing enablement is on what is disclosed in the patent not what is taught in the prior art and that's exactly right and that's what we have here you can let me start with hershel or your honor and the question of what the inventive contribution was here mr wolf said that it was not in the selection of polymers but again i would direct the court's attention to the obviousness portion of  here because these polymers were thought to have inflammatory effects in the conventional thinking in one thousand nine hundred seven was that you would want to use a degradable polymer something that would disappear the nicky patent points out correctly as people appreciated of a time that once you knew what these biological effects were that the rapid mice in analog would work for immunosuppression it's precisely the same for research to gnosis and it says one can read it it don't lend themselves to broad generalizations or the kinds of sweeping conclusions of district court reached year  e another book points that i do want to respond to briefly the statement that was made by mr wolf about this compound problem was i mean again i don't know that this has any bearing on the issues of the court have to deal with here but the the inventive contribution here and yet for example the three to eighty six patent claim one just refers to the polymer as a biocompatible polymer so there's no invention there is there i mean what's what's is this is this claim as you're now characterizing the inventive contribution invalid because it doesn't recites the inventive contribution or a combination of things there and no one could point to the broader claims and i suppose we can debate when they are but the claims that we're really concerned about here are the narrower claim as to so let me come back for just a moment then to relate the larger issue here apart from her and that's the question of whether there are factors that are presented and again this came up on summary judgment we were entitled to the benefit over reasonable inferences what was known to people working in the field and was known in the prior art i think part of the problem was that the focus was on cases like lily and others cases patents that came out of a research setting very early research in universities where what was in the prior art was really quite scanty in the focus in those cases was not on what was known to people working in the field what we have here is a later industrial application of research that w known and it was published and i would submit that had the court looked at in considered what is presented in the sabatini declaration about what was known to people working in the field i think she would have concluded you should have concluded