relates to transgenic plants that are resistant to a commonly used herbicide known as two four d the central issue today is that the district court erroneous li construed the claim claim term of biological activity to four d model oxygenate instead of using the definition found directly in the specification namely cleaving the site chain of two forty seven using that the district court adopted dows proposal by relying soley on extrinsic evidence and specifically listed in page eighty eight fifteen of the record in her opinion that she was relying on expert opinions dictionary definitions and what court perceived as an error but what in fact was merely a further characteristic of the characterization of a completely irrelevant and sematic activity that was discovered after the filing of the patent application couldn't let me see if i understand the breadth of from well that period but it has that function and do i infringe you would if you if you if you would if it followed the other tenants of the specification in other words if it if it if you found it by the growth tests for example that set forth in the application which should find every gene that does that it is not inconceivable your hypothetical is not inconceivable but there might be some completely different mechanism that isn't disclosed here in the specification at all and if that were the case then i would i would i would submit that that would be another whole invention and probably scientifically astounding but it is conceivable so th context is the in the end what the inventors did here is they they recognized that it was well known in the prior art that the degradation of two for  sequenced and cloned the only one that wasn't was the first step was to was was the end so the first step the well known well characterized the yes the that was you know that's identified in the in the prior artificial just as a technical matter yes and doesn't itself do the cleaving it does something to the molecules so that after it does to the molecule names has by definition in the patent one pertinent biological activity my impression has for the first i guess i have difficulty at both using two for demon oxygenation as a name that is without an indefinite or definite article in front of it and sometimes using it with an indefinite article where it's or where there's an indefinite article it sounds a lot like a description which would mean that the natural meaning of the biological activity of that descriptor is the activity that that phrase describes which has something to do with where the second axis in heaven goes and then the biological activity there  cook the specifications of is the main point is it what the second asks is it where the second x using those is completely irrelevant it isn't it isn't a factor at all and the reason for that is because the word to for the monologue to judaize was a term of art at the time of the invention well recognized by everybody that was the only thing it was known as as a short as a shorthand you could have said if you want to describe what was happening in step a but instead they said everybody thought it was a monologue news because what they knew was one of the oxygens created that cleavage caused that cleavage the second oxygen was irrelevant it didn't matter what it did and to this day it doesn't matter what it does as far as that part of the discovery or determination of whether you can get a genie that expresses that kind of an enzyme so so the first the first step is to recognize that the will every time two to forty my aussie janay has used its use as a term of art always together you will not find the terminal oxygenates by itself anywhere i think on his message about the testimony undisputed expert testimony explaining to the rest of us what the usage is in the are nobody had any and so also i thought and disputed that everybody agreed that to say something is i'm an oxygen it says something about what it does that includes what happens to second oxygen well the expert testimony that you're referring to is is questions asking about definitions model oxygenates or definitions diopter ginny's and my what i'm just what i have my main point is that you can't dissect biological activity in the two for the money option is the two for the model oxygen is never used without two forty at any work other in the specification other than that term of art to forty minutes a days which meant to everybody in the world this activity of leaving the sign change it didn't and it did it by one oxygen to the cleaving the other oxygen was enough it wasn't known what that what happened to that and in fact when it was discovered seven years later that the second oxygen goes actually to a different substrate then some people started saying well it's then therefore a dioxin is but it's not really a dioxide but at that point you know that the terminology is at least misleading maybe just now out right misnomer and you don't change it's not misleading it is not at all misleading because it's known it's no more it's no more misleading than than calling a married woman by her maiden name in other words the name change it was only going to use that if i have three women but but but the that's the point is that if this is what it was known as they couldn't possibly have called it die oxygenate in one thousand maybe six of the time the invention because if nobody knew that that's what happened this was a example we use a term planet that is intended to be a descriptor and what happened i gather is that scientists decided that the definition of that descriptor is needs to be tweaked it seems to me you have a real difficulty if you think of two for demon oxygenates as a descriptor as opposed to simply that name of a particular chemical particular enzyme that was identified even before we see the that expressed well to answer that i would direct your attention to the the intrinsic evidence and specification of the articles that are cited that actually talk about leaving the side chain may have observed was a was filed the priority application was filed in germany in eighty six and then of those file a year later it's a p c p s or cation and then it entered the national stage in the united states a c a p and so there was disclosure added and the disclosure added was really from the context of saying that these inventors knew they had they didn't want to limit their case two to one gene because the way they discovered the genes was using this growth test that would be useful to discover any gene that that that creates that function and that was the function they were after because they were after identifying what causes what what is the enzyme that we can use to input put into plants that would cause that degradation first step and the degradation first step was it was identified as t f d a standing for two for d step eight it's a simple as that that's the that's the activity they were looking for in the gene that gene they were looking for recognizing it was not one gene but there were many genes and they and they they knew that because there were many types of soil had ability to degrade to four d so they wanted to make sure they had the took the coverage for any of the enzymes that create that reason i say that is basically the and this goes to the derivative scription part of the case where the do want to address quickly but the the the family the the the growth test is very easily understood what it's a cookbook example in in the case in the in the application may not be clear to the layman but it's a cookbook example very detailed any can any one of ordinary skill in the ark and follow it what they did is they the very clever growth test that they did is they created first this the negative mutant the didn't have the activity and they deposited the mutant bacteria in that and then depository to it to to so that anyone could grab that and that was the real hard part that was the laborious part of of identifying the of getting to the actual genes that would express the protein once after they f you have that deposit then then then what you do is you you you take your your your a bacteria and you get that you break up the d n a into many many pieces and then see which ones when it's really  uses in this that it's is it is a it is a it is a claim that a funk you know that that that defines a function the function of cleaving the side chain of of two forty but you see that's it's not that near to whom this patent is directed that as some of the testimony later on when when it was represented by doubt at it during the market hearing that there could be some other bacteria that's not soil bacteria and the answer the experts answer was that would be dumb to use human liver bacteria as a source or dumb to use and and and and and and and  big sludge is the source of the patents directed to soil bacteria that's that's what was known to be grade two for deet so it is it is it is limited to two  to that group by way of the growth test in other words it is a functional client but there's enough disclosure there of a small enough group with and the testimony is very clear there aren't many enzymes that that it's not like billions of enzymes that testimony was misquoted or that were that were judge of bumstead that buyers own expert said it was billions and billions that was not what he said he said just above the part that you quoted he said it was evidence both ways on this quote of the written description a question about how much else besides the t f t age might be out there that the broader claim covers is any of that evidence or maybe you can just expressible implants that end with the human liver bacteria sequences is there any it does anybody say that that something from your point if you like don't worry about all this other stuff that i was talking about because back just could be expressible place so that's a red herring and mix and that's that is that is accurate in the sense that the  the the invention at the time the one thing that was sold that had to be proven was that not only can you get the gene that expresses the protein but can you put that in a plant cell and will it work in the plant would you go with something that you that doesn't have any relation to the plant to forty was known to degrade in soil it was used as herbicide it didn't it was approved by the environmental protection agency is usable because it didn't have a long lasting effect in states toxic in the in the in the by a lot of the logical chain it was degraded so that's where you go to the soil bacteria so quite you is quite correct to say you wouldn't go the other stuff and the other two example generically and not to be mended into what we now understand the monologue states to be then that claim becomes very broad and what i understood your opposing counsel to be arguing in effect is well the claim isn't really as broad as the language would suggest because it's really directed to soil bacteria that can be in which the the gene can be detected by the  of genes that have the same function because that's where the language is that encoding a polypeptide having the biological activity now let's assume that having the biological activity means agena we cannot have a t v sequence or set out and figure tense that's what this plan is about and they have conceded that we don't have that gene so you know and there is some wiggle room there's almost identical busy century similar but that's conceded we do not have maybe maybe all of that leaves some of the prior art cited there is included is that it was not an uncommon usage to use the phrase too for demon oxygenates without any article indefinite or otherwise  ana i can see where you get that from the papers but actually if you look at the evidence and i'll walk us through it that is actually not true there's one article the don article that uses the phrase two forty and that gets picked up by one article the purpose but if you in the independent claim on which the claims for depend of t s t a as a model oxygen right well yes that is right as far as you go you a little minor to a minor typo but they don't come and say hey you know you're about to issue a claim with the invalid in this leading sentence and why would you do that so it to the extent there were doctors that would allow the court to sort of you know massage the language to get to a sound result this is forty i take it you're well and i've left off the second limitation but that instead of you heard his answer could you respond to byers position that claim can and should be read more narrowly than simply as a functional claim starting with a gene that codes for and sign that performs this function no matter what colloquy with me explain why in his view that claim isn't that broad and therefore does not create the problems that would be inherent in a claim of that right now what user respond to what he had to say on actually have to either give the sequence or really keep the public really don't close to that sequence it's not enough to just get one sequence and then say i get all the other enzymes to do the same thing and you have to carnegie mellon case your arms are familiar with the the point there is you have to describe the sequence test or a plan to go find the thing isn't isn't enough and that's all the protest does if they give a sequence that if they sequence sure and they get a simple process to let you find way i did and i read that testimony and it was from the will directed by wind that was up i had the same question of honor and i'm not sure i got in line by it but it's certainly what the record says their expert said i think it has to do with the actual expression and whether they is it enough to say this comes from a particular set of closely related bacteria and the claim is limited to that that was the other part of human causes a playwright i mean and that's the question that one you know one way to look at what the court is to decide in part and you know we don't think it is because if you read the sports cases the carnegie mellon and others that it's not so much the size of the class it's weddings taught the public what it needs  and i think if you've just given one sequence and even if even if it's a fairly tight on the other side it's not enough that's just what a lot that's what the law is because we want you to come up and if it was so easy put another way if it was easy to do what they would have sequences  doctrine should be on you're ten that see that that's a gene chip day but when they talk about the f d a they're talking about more generic generically because it's just what performs the function of step eight in the sequence t two forty seven a that's what it stands for so functional class that's an excellent question it was referring to the function because they couldn't nobody found the genie nobody knew what the molecule what it was the function that steps a degradation function when win there term w referring generically to any protein and any gene that expressed the protein that created the cleavage of the site chains nodes of that's an enzymatic activity so that that protein that enzyme they didn't know what it was it wasn't characterized they couldn't clone it they did couldn't sequence it they just didn't know what it was that the skate everybody that was what was so clever about this invention and genius about the grotesque was they found out how to do it and did it and then deposited that using that carries that allowed anyone else to do it later so found from one of the soil bacteria one of the five that are listed in the claim one of the patent i think it was from sweden i think it was pseudomonas or or one of the other ones that they it's the name changed of the bacteria also it changed trophyless and i believe that was a new subcategory under sunil miss or perhaps some of the other ones are not one hundred percent sure that off the top of my head but if you look at a page a fifty column one you'll see the five of the five of soil bacteria that general identified the amy reference also called to call the function cook leaving aside jane and called the two for two forty minute oxygenates that's also and that's part of the intrinsic record to the in the amy reference and i just the last thing i like to say is that the discussion about written description carnegy this our case is far far closer to ends old where you have enough enough to find what you need but under area you need to define enough sufficient materials you don't have to find define only describe structures not correct as opposing counsel said the d n a to claim a d n a you have to have structure you know you have you can have structure but you have to have at least you have to have sufficient materials and that's where we say the growth of without specific multiple examples you've got a class of h minus reverse transcriptase identified and supported under written description thank you