celebration not to mention his wonderful stage craft skills is also right much joined to our chambers by giving us our first grand clerk column blanco who was born a year ago valentine's day mike is a kind hardworking funny and dedicated attorney and i'm sure he will uphold that values of the score we're delighted to grant your motion to s this is an appeal from a section one forty five action in which the district court printed summary judgment of obviousness to the p t o in doing so the district court resolved material factual disputes against  is actually a cancerous cell line of natural killer cells harvested from a particular patient who succumb to the cancer so what the claim is claiming here is this sort of paradoxical use of this declaration to a significant extent reads like illegal briefs and everyone knows that lawyers help witnesses write declarations what what exactly is a factual matter is there in the miller declaration that should cause us to say that the needs to be trial i look at the miller declaration one of the things that you  i see the miller declaration as resting on an incorrect claim construction in the sense that miller says that the claims were quire modified cell lines but that's not correct isn't so we're not relying on and that here your honor to answer your question there are two sets of material facts that i want to focus on here one is whether in vitro data such as the in vitro data and then king ninety two in the gone reference would have given any person of ordinary skill a reasonable expectation of success that n k ninety two could be used in an in method of treating a cancer and when we're to we're talking about an allergen a hack therapy here in other words i therapy where we're using a cell line from a donor in a foreign ho patient's own cells upon the administration of this therapy there's another risk that the host cells will attack the enki ninety two cells there is to get into the weeds a little bit on i very result of the mismatch the mh gene its mismatch between the host and the donor that the n k cells would not was thought respond to inhibitory signals and as a result  indiscriminately kill the host cells this would be an example of risks may have existed the question is whether they are sufficient to defeat an obvious do you certainly agree that the entire ninety two cell was in vitro found to be effective he certainly have to agree that other end cells have been found affected in was affective in treating cancer in b the right no no no there are the night five application is the first first disclosure of the use of n k cells in any fifty thousand foot level up of course the the analysis here has to be from the perspective of a person skilled in the art and a person skilled in the art would be looking at the very important details that dr miller pathways and dr miller states that those differences would have led a person of skill in the art to expect different immune responses and different cytotoxic functionality  had a reasonable expectation of success that it would work and that's really the test here so there are these two important consolations of disputed issues of fact whether the gonne in vitro data simply dismissed without explanation dr miller's testimony basic question is how popular you have to be that it's going to work i mean that doesn't have to get to the level of certainty right absolutely not but there  has to be a reasonable expectation of success and there are simply disputed facts here if that's the case and then finally the district court in assessing this question of reason expectation success applying inapprop instruction ajay twenty two the district court states that he person of skill new york would have had a reasonable expectation of success that and a ninety two would lice one or cancer is merely the killing the recognition and lysis of cancer cells the claims do not require they at the cancer that we see a clinical result and actually tested to make sure that there is in the viral activity essentially what dr miller is saying is that in order to render that claimed and that's an obvious the host versus grafter sees and grafters is host to seize allegedly causing a teaching away there's there's no dispute that those things might happen so that's there's not an issue there we're in agreement those things might happen the issue is whether those things are inferior to the question before the court you think somebody would give it a try anyway given and given yes teachings in his own prior record right because there are only these two types of but in the lax studies that were conducted in the nineteen eighties had shown that encase cells do recognize and unreasonable expectation of success is hey you've got to test it not only you have to test it you have to show it's a fact and that nothing is going to go wrong that's not the right standard and so dr miller santoli patent shows that the unmodified tall one of four spread disease when grafted in mice and only answer my question my question is he said there's a risk of spreading disease because you have on modified cells is wrong about the claim construction so why should we pay attention to that one because it's another example of the difference between these two cell lines i don't understand what you're saying i don't think you're addressing  question if the if if the risk of spreading disease only exists with respect to unmodified cell lines in other words not treated by radiation or whatever in the claims don't is why should we pay any attention to the risk of spreading disease if he's got the wrong plane construction and there's no question that he and who radiate the cells and prevent the spreading of disease i agree with ron or that that's not relevant for th claim language but it is relevant still scientifically because it speaks to another difference between these claims between the cell lines now we're not abandoning a teaching away argument just to to render a claim such as this to a method of treatment in vivo obvious well that's a very sweeping proposition and the the in re again gander han case that was reference earlier the in re carole case are both contrary to that this is a question that turns on facts whether on the facts of this case they've gone in vitro results would have given a person of ordinary skill a reasonable expectation that and king ninety two could successfully be used in an interview evo therapy there are just many disputed facts concerning that including the very big differences