opening comments to what we perceive as improper or adverse inferences taken by the trial court and then save the remaining time for answering questions and remodel as far as the are i  can see at the trial court made several inferences that were improper for two reasons one they were adverse to responding party on summary judgment motion until they were unreasonable as being inconsistent with unchallenged facts i think i'll go through this fairly quickly there's five adverse inferences i want to address with respect to the six eight one patents and there are two adverse inferences i would like to address with respect to the for number on a six a one patent is that the trial court treated claim to which is the only independent claimant issue as a genius client and the significance of being a genius claim was that it would require additional or enhanced written description to satisfy the scope of a broader claim in fact there is only evidence of one member of that genus and so we believe that the proper inference would be to have treated this as either a degenerate  genus claim or not a genus claim at all number two the trial court appeared to infer that dr robin barrett the inventor on the sixty one patent was not in possession of the mutation inference one that is that the facts the undisputed facts are that dr robert didn't have the adequate equipment to do it even after two years and he didn't even get his lab running at all for a year and the dr feder  we have no idea how many people actually worked on it or how long it actually took the fact that he didn't publish for two years doesn't tell us how long he took so the adverse inference that it that it was they were unable to find the reference because it was outside the scope of japanese researcher did in fact rely upon the teachings and did mention the teachings of the six eight one patent and he was able using the consensus sequence which was the strategy proposed by d he was able to find the the mutation and he published almost exactly the same time as mr factor number three the trial court appeared to make an adverse inference that the knowledge in the field was insufficient to find the taishan when others had used the same techniques in fact what we know from the patent application is that dr rothenberg had purchased been able to knock out mice and from knowing that consideration with the teachings of those of skilled in the art was that there were three hundred base pairs they had narrowed it down to three hundred base pairs out of three billion if you consider that in light of humans on the earth there's about six billion people on the earth so that's like ending you have to find a single individual among the six billion people that's necessarily impossible but if you can narrow it down to six hundred people which is the same ratio all lined up together you just test one person after another until you find the one with location is the structure it's undisputed and there's a reference in there in the reply brief that there are only six non classical class want to make c genes on the short arm of chromosome six and knowing the location war it was claimed to i believe of the six eighty one patent it was a genius claim although whether it's characterized as a genius claim or not a genius claim is not dispositive of the decision at the time of this no deposit was made to this case would not fall under the ends of exception where cell deposit might meet the written description of partner there is no exception to the written description requirement that this case makes because of what was known in the article or not known in the article and what was not disclosed in the specification this case there's absolutely no species disclose that gene was not isolated to geno's not sick and then one level below that not even the mutations in question that would be within that gene was isolated or sequence think there would be a problem but i think in under the written description analysis i think the temporal time pressure of this makes makes a difference if this was today two thousand and eleven where for instance the human genome project to sequence the entire genome maybe we have a different case but this case was filed in hundred four at that time the gene was entirely unknown the mutations were entirely unknown and in fact it took as a matter of hindsight fact several years for the actual gene and then the mutations to be found so i think it's critical under a description to have the invention in hand to be in possession of the invention not just to have an idea or a research plan to go and look for the invention because that's what this patent disclosure disclose to sort of optimize the assayer optimize the compound that's been that's been that's been claimed whether a written description requires proof or disclosure that the inventor had in his or her possession the actual invention and in terms of a genetic test or a d n a invention that requires a description of the d eight itself and i think that's a critical legal point that d n a itself must be described not a plan about how to obtain the d n a using subsequent experiments and i think that's the fatal flaw in the six eighty one patent is the best that the plaintiff can say and this is the absolute best with expert testimony is that there dentist by an approximate location within the human genome where the mutation might have been found if further experiments were conducted and i submit that is simply not enough under the court's written description present you must be in  the method that's disclosed if you teach the method are you this is a method claim if i would say the bar is one need not  invention in the public domain prior to the claimed invention i'm not sure the case law looks at a separate enablement written description acquirement i'm not sure that one would not be necessary or appropriate in the marketplace in the public domain so that the requirements of section one twelve a directive to what is in the four corners of the patent and so that's not fully i think appropriate standard or analysis for the world of prior art of the world of things that could constitute prior art i think it's a useful analysis to think about in terms of looking at a reference but i don't believe that one twelve is one which is applied to the contents of patents is not necessarily appropriate to analyze the have to fully say here's exactly the full usefulness of the of the invention and think that is plaintiff's argument on appeal in this case that are quite right reference the reference that we pointed to they say does not fully absolutely undercutting the disclosure of the potentially it could not render the reference not to spit terry i'm not sure what hypothetical facts that would encompass i know in this case this court's precedent neither of those cases took the i would think of an extreme position to say do not use this or this absolutely won't work and i and as far as you want to point out that's actually not the facts of our case are facts i think falls squarely within the celery this case in the on the basis of that data there is that one line in column nineteen that says it may not show it does not show an increased risk now that doesn't preclude using the invention that just says on the basis of the patients that we have tested that we have found it has not shown an increased risk that doesn't say it won't work don't use it it's not operable that's a reference to the clinical data and in fact if you look at the one thirty patented as a whole in other portions of the one thirty pan it certainly does to i suppose it's how you define teach in a way because one could enable an invention in describing all the religions and parameters in the temperature for doing the experiment and exactly how much sample to use that would be a fully enabled method of fully unable to pass a genetic test and then one might say oh i don't think it's a very good idea to use this test after fully enabling it so i think something could be fully enabled fully described and then there might be a teaching away within the reference although i should as you point out judge five one three seven and five one three eight am the paragraph reaching those two pages and this was addressed in our  through to the paragraph bridging those two pages and specifically on a five one three eight starting on line one it should be pointed out that some of the m eight c class one heavy chain genes had already sequenced as the time of filing of the six eight one patent so that statement by opposing counsel that none of the genes had been sequenced is completely inconsistent with the facts of the case and also as i pointed out in my opening statement that the fact that people had found the dr rothenberg was able to buy on the market made it to knock out genes abated to knock out mice meant that they must have known where the gene was and they must have known enough of the sequence to be able to knock it out and secondly with respect to that you write a lily case helen is wrong in this but as we read every it is not necessary to have a specific genetic sequence it's only necessary to have some structure and some function that sufficient structure insufficient function and i think we've addressed that quite a bit in our brief that the the rez structure dr rothenberg knew the mutation was in the alpha three domain of the protein it was known in the  field at the time that alpha three domain of the protein corresponded to the x on four of the gene and so therefore we did know where a while and we knew it within three hundred base pairs as i mentioned before so this business of saying that the trial court correctly found that we did not have the exact sequence that statement is correct but it's not determinative of the law of the relevant laws in areas not little with respect to the third point and they were meant allows for experimentation but written description does not certainly that the federal circuit will evolve on this this issue of what's written description of what is  from at least what we can tell that would eliminate the written description of current written description is whether or not the inventor was in possession of the invention whether those of ordinary skill in the art would have perceived that the inventor was in possession it's not necessary to actually for the written description to have shown exactly how to do it because if that were the case then there would be no distinction between written description the ridge ascription would be  well and and i would i understand what what you're on are saying and i agree with that statement and i would say that even under that standard there's only six genes that could possibly satisfy what it said in the specification and even one of the claims that it was claimed eight specifically talks about the alpha three domain so working backwards it would should have been clear to those of ordinary skill in the art maybe not to the rest of us but those were made while i'm talking my counsel here can find it but in any event it  address that when he finds it but it's in the specification i do once since i have a few minutes left i'd like to address the one thirty we agreed enablement is not an issue here and neither is teaching away an issue what we're thirty patents did not teach what was claimed the the defendants and their pelleas in this case seem to treat the claim as if we're claiming an ass a to find a mutation we're not claiming an essay to find a mutation we're claiming a method of diagnosing a disease and that was not disclosed all they disclosed in the one thirty patent they found that  they found a mutation they described as a method of testing for the mutation and they disclosed the method of determining whether that mutation has any clinical significance and they concluded that it doesn't have clinical significance now they left open the possibility that for something it might have clinical significance on some theoretical basis but again i get back to the inference from this case the posture of this case is that risk and the inference from the phrase that they may have clinical significance the proper inference on the summary judgment where we're really defending side is that what they meant by that in the one thirty pattern is that they had concluded there's absolutely no clinical significance and if there's no clinical significance how could they possibly have to have anticipated the idea that and that's correct it did disclose a diagnostic test but that i don't interrupt you but they did disclose a diagnostic test there's there's a phrase in the one thirty patent i don't know where it is where they refer to it along with other things as a diagnostic test but the way they used it as a diagnostic test and the way they are you and by read used it as a diagnostic test was to find a false positive when they were running these primers they would come up with positives and then the person would have hemochromatosis and so what it was diagnostic for not having hemochromatosis i wasn't diagnostic for having hemochromatosis so it couldn't be used from what the prior art knew it could not be used to find someone with hemochromatosis it was merely a false positive and that's the sense in which they use that as a diagnostic a diagnostic to help determine an error in their testing not a diagnostic to find someone with him or comatose is so it's just word games is an unfortunate use of words but again the the inference the reasonable inference as to how that should be interpreted from my understanding of the well if the court wants to consider that argument fine and if the court doesn't then it was way up but the point is that it doesn't matter whether it's enabled or not it didn't the