and in connection with interference proceeding with a challenge to those other people from those interference proceedings was filed originally as a one forty six proceeding in just court the district court ha this and it was full because you need to get rid of that eternal background if you weren't careful in your molecular counting you could see the overshoot on the twenty one by including it all and what he warriors are no significant structure that that would support a randomly selected seems to me that most of the written description of it goes to target and  d answer to you because the us the question which really begs the primary question this appeal is why is column one thousand and twenty sufficient disclose random secrecy i think it's relatively simple i was shocked at the outcome  people think no problem that's what people do their expert our expert everybody the record is also unambiguous that on the alumina system at best there was some experimental work people were the reader is getting conditioned you know in a very severe way that this patent this invention is devoted to differential detection of targeted sequencing using something known as digital so that's the you know it's almost like a jackhammer of your forehead for the first several columns and then we get the column nineteen and and i as i understand the patent word they're saying know there's there's discussions of a target specific sequence doing massive parallel sequencing on millions of fragments of randomly fragmented genomic d n a but what we don't know is is each one of those random fragments getting sequenced or is it possible that there is some kind of target primer being used in this particular section about i just don't get it there's no step in here that says you're filtering never went anywhere it's not even sold anymore supported anymore instead of the pop wildly popular lumina system that works on the basic random sequencing why would you not use random sequencing and it's within the basic co question is is that what the patent disclosure that what the patent and sessions well it disclose in the sense that there's no dispute about enablement nor could there be because it's agreed that people would know routinely that if you get a little money do random beforehand filter out all the other promises why are we working so hard to deprive this person of what he invented but the question is did did the inventor if you're really disclose that he day contemplated using going to use random primers i'm going to sequence every single little fragment and then we're going to match up the fragments to the respective chromosomes and then we're going to count them an associate you know which chromosomes are bigger than other chromosomes the context your honor is the insight is that you don't worry about maternal background then yes i think that one of the interesting aspects of this is that the outline of the section and less protection of quantification in those four different ways of doing it and one of them i then he discloses that he used a thirty if you have thirty base pairs of random sequencing information you can go to that known genome and figure it out why would you disclose that if you were talking about target i just he at that time period on target and the only references that shows anyone ever doing targeted is on this four five four platform which is not even cited as one of the platforms here i understand the material that you don't that's not within the four corners of the special of the written description by way of food no and then have lost it but just in the situation where we have to go out there and try to understand what that footnote means even enough for the what you're allowed to incorporate by reference but the real point you're either and i understand your frustration with it i'm not i'm not i don't mean to be presumptuous about this in any way but in the statement of the ordinary skill in the art that was included very pleased the court i think it would help to focus on the questions from the bench to recognize that there are at least three really profound differences between doing this technique with pre determined unique sequences and doing it by massively parallel random sequences in the first years that with a pre determined target it's easy to detect the spec says you do it one of  biggest human genome make sequences enterprises in the world and she said that she was deeply involved in human sequencing including human sequencing with these devices in two thousand and six and  points out but she also said that great came up with this targeted bit of d n a sequencing right he did indeed come up with a targeted sequence and her point is that in  being used for this i hear her saying that it was possible i think if you look at four eight nine zero paragraph twenty seven the dark publication in two thousand and seven if you look at those and in the joint appendix you'll see that those are in february or were submitted in february essentially contemporaneous and then she states based on her experience with of these devices for human work which is what's relevant here although the publication dates of perec and dr kay are after the filing date of the six hundred six application that represent the type of work that was being routinely performed two thousand and six and two thousand and seven based on her actual experience with exactly that kind of work and if i may the whole point here is no matter what quake does quake has to do a whole bunch of experiments the only way you get data you can use is by doing a whole bunch of experiments you know when you do it with sequence specific probes they light up if you're going to do it by sequencing you're going to obviously have to do a whole bunch sequencing and it sure sounds like a good idea to have a machine let's have a machine and he says there are machines that do a whole bunch of sequencing he doesn't say use alumina he says use a platform based on this kind of machine and what dr gabriel testified to is that in the human area because the genome was so big and use of machines was so expensive they routinely would target the d n a by some kind of target specific amplification before they put it on the device and that certainly could have been done and what the board found supported by substantial evidence is that's how a person of ordinary skill in the art would read it now we've heard here after fifty and sixty five at fifty and seventy two the claims for whole system the application was missing pieces of the system they said that the person of order skill might speculate as to modifications the inventor didn't disclose doesn't fill the void e would need of a shooter to recognize the problem you have to have enough description that would lead a person of ordinary skill in the art to recognize that you were describing where you are then why in this situation going again  ways and when you read this statement in the context of the entire specification and you see that there is no description of the other steps of the method no description of babbling the random sequences to the genome and no description of the fact that the regime is no longer one of the one because when you don't have a pre selected sequence there are different numbers of unique sequences you're going to find depending on the size of the chromosome and you have to do some fancy statistics to figure that out and that's nowhere discuss description issue the original application was filed in two thousand and seven described as using known sequences when quake finally hit on using random sequencing so called shotgun sequenc would have to simply work too hard to try to peace this together out of their disclosure and certainly do not have disclosure of all of the elements or description of all the elements needed to perform this method you have a description of all the elements you need if it's targeted like it's a one to one ratio if it's targeted all you need is the simple statistics city as an example you can do the sequencing in a targeted manner even on these machines and it all seems to make sense and candidly we have a situation where at best there are two reasonable conflicting interpretations that could be drawn from the evidence in response to judge all maladies question the answer was yes kids were standard for random sequencing on off the shelf products and there was experimentation done for target sequencing and then he cites a post filing documents to se and was because of what she said about the four five four which makes no sense because illumine is what's the supposed four five four isn't mentioned and council concedes that point it's key it's directing you to the system that's used for random sequencing the second point because there's this little bit of what i would call fied about one to one ratio that relates to step four that's the statistical stuff at the bottom which was essentially fell away it wasn't the basis for the board's decision the board's decision was that you would think target knowledge is that people skilled they are would have known random sequencing based on m p s and i would say to you that if you apply the standard that's being applied which is every step be spelled out is that every step or targeted sequencing spelled out becom see anywhere where they say it says you randomly fragment which opposing counsel agreed to was if you put them all on there and then it says and you put them on the device and then you use the lumen to see limits system there's no middle stack this is at the bottom of column one thousandth there is no step of now you go fill to ramallah so it wouldn't be there wouldn't be written described for targeted sequencing either even though this is all just oh by the way another way you can do the molecular counting is off the shelf stuff that people know about that just doesn't that just doesn't make sense it's almost like you're you know the board the board of the board was saying that's the problem these two paragraphs are ambiguous in isolation now you read them in the applying these techniques further one skill in the art would understand have experience with techniques for aligning secrecy reads generated by massively paris sequencing to a reference genome it's saying in the skill of our is random sequencing it's