abstract concepts laws of nature or natural phenomena and the claims teach a physical process for making and formulating nutritional products based on an analysis of genomic data  just about that physical process boy i thought that some of the cliches and with the language about making a profit but a bunch of them don't just formulating a diet which is nutritional composition but i would disagree that the characterization of formulating is simply writing down the information the district court construe those terms to mean actually designing and developing depending on the claim the nutritional diet or diet product and those terms are construed to mean a particular nutrient or core composition so even the claim that and with the term of a formulated limitation are directed toward the physical process and certainly the analysis that's part of the claim i think also is directed to part of the physical process even though it is computer driven that today i'd actually like to focus my argument on three points i want to discuss the seminal case of diamond versus deer and discuss how the human patent do resemble the industrial process in eligible in pursued with respect to diamond versus deer this is one of the supreme court's seminal holdings of eligibility in a patent case it's an older opinion but in the last four supreme court opinions on section one hundred one from this decade the supreme court has gone out of its a way to analyze and affirm the holding environment versus dear indeed we had a patent that took the arrhenius equation which had been used previously in the process of curing rubber and the patents claimed an innovative way of repeatedly applying that equation throughout the process of curing rubber to figure out the appropriate time and temperature to know the appropriate time based on the temperature for which to open the process but the press and that in that case these were not innovative tool you were using the same instrumentation that had been used before using the same technology that is in use before but i didn't dear and maybe alice picked up on this that the patentee or applicant is it it's advance as using this thing to measure the temperature inside the press conference that is correct but i would qualify that by saying that it wasn't just the measuring constantly it was the application of the arrhenius equation to constantly reevaluate the temperature in order to determine the optimal time to open it because what was out of the computer ai technology of the arrhenius equation and the ability to use through a computer the repeated calculation there would have been not much difference between what had been done before with the measurement of the temperature in the pressure and the time at which to open it using the arrhenius equation i agree with that characterization but i do think part of the innovation in that case with the method in which they applied the computerized technology and specifically the arrhenius equation in order to determine when to open the process and if you look at the hema pad patent for it sample they to claim a physical process that's a little bit broader in that it's not just limited to industrial applications it can be a smaller sample size for example of mixing ingredients in a smaller situation but it's the same idea that you're looking at coming up with new inputs to a calculation in our case we look at colleagues not only in the war that isn't this what hasn't been implemented at least the patent doesn't give us the examples of the implementation of the idea i would agree that it doesn't give a specific example of the implementation in the specifications but i would disagree that the claims are somehow limited to an idea the claims themselves are the scope of the language of the patent they're what we turn to first understand what the claims cover and in the claims they outlined the specific inputs that are going to be used to actually in going to actually apply the ideas that are part of the invention you look at claims one and two of the three for three the first limitations describe the specific data inputs that you need you're going to have to have genomic data relating to a physiological condition from bodily tissue samples or from bodily fluid samples they then describe the process for having data relating to the effect of nutrition on the genomic data and then through that process and i do think that the figures in the patent outline the analysis for you use that information to analyze that you know make data and then based on that combination you've been able to determine in a way that had not been done before at the time which ingredients are likely to have an influence on the genomic data of an animal and in conclusion from that the patents don't end there you do something with that data you either formulate or prepare a nutritional diet or diet product which again the court considers actually designing and developing the particular nutrient or c compositions and that's what these claim languages cover and this is similar to the process in deer the patent deer for example to clarify something which is what i asked you at the beginning and maybe it's the usage time i'm stuck on so formulating a diet or formulating a diet composition or something seems to me to at least be ambiguous between deciding what foods get the dog to put in this mess yes that's our understanding of the claim construction order part of what phil has proposed as part of the construction of the phrase formulating a nutritional diet or die product was the idea of simply coming up with a formula or a recipe and the district court rejected that construction and used the terms designing and developing for the verb formulate and then for the object of the claim the nutritional diet or diet product as the claim may be that the district court construed those terms  caloric composition so our understanding of the district court's order is that it was concluded that there was a physical process even for part of the formulating claims and your honor had noted earlier those are certainly are certainly different types of claims in this case and we recognize that there is a difference between the formulating claim one for example and the preparing claims and we certainly recognize that it may be more a closer call in the formulating claims but certainly with respect to the preparing claims which the district court construed  assertion that these claims are overly broad or somehow not limited in their application i think we pointed out several examples in our briefing of ways in which you could use genetic analysis in a manner that would not be covered by these claims for example in the designing of a fire but it is already  courtroom we certainly agree that our way of doing it is likely the best way of doing that it's part of why it's had such success in terms of pills on use of that but we don't think that this is the only way to take you know make information about an animal and use it in the application of the nutritional application the claim set forth a very specific way of looking at the data and analyzing not data and then of coming up with a nutritional product as a result so what would be some other way of that's not covered here certainly if you use that information and came up with a pharmaceutical product that would be one example of how you would not be taking even for an animal by overpreparing if you're preparing a particular nutrient or caloric composition for the animal and you've gone through the the data analysis steps of comparing the first step to the second set in the way described by the claims i can certainly imagine a way i don't think it would be as good of taking just for example one of the data steps that looks at the effect data are associated with arthritis for example that could be one way of applying the information that's not covered by the claim even even if the articles were in the database what you took the article and then you put it into a database and such that that data i thought we had ensured that it was exactly twenty four point five but i you your honor and their pleas for brian hill's on behalf of hill's that intrusion i think if i can pick up just on where we left off with for a moment dear i think one of the things that's telling about that's argument is that they want to talk about here first and almost only dear and only get to the more recent developments in this area of law at the end if there's time but we all know that the recent developments in this area beginning with mayo and  of the structure almost any argument in this area now is we still have here we have this other things an argument is your side says we're closer to this and their side says with a sort of that it's not a bad strategy to say here's where is this close on the wrong side of the line and council homes told us we are certain measurements are performed as india which bring out information not previously available that response well how these claims of a cross line runner is that they don't do anything other than recite the natural correlations between the gin and the genes and their relationship to disease something that it's there certainly are but in cases like myriad the supreme court has said that even seminal fundamental very very important revolutionary discoveries if the claims are too closely tied problem here is not so much that it's a natural law as the abstractness and breath of i agree your honor and that's what i was getting to next because the question under the alice male framework is once we know that there are natural  there something that transforms and the only other elements we have are generic computer elements which are rejected under alice as transforming something to be in the patentable subject matter and that and analyze or determine the relationship rather than coming up with a particular product which which is something useful that's right and these claims at the end the final step which is where they spend the most of their effort it's the determined sort of to prepare formulate  determine a composition claim which they argue is tangible there's not actually any tangible thing recited to be clear in any of these claims it's and it's a suggestion to go make something in the best case scenario for them i think trying to is right that there is  ambiguity and what some of the other terms mean but even in the best case scenario for them one says make if it says make a food or make a composition it's still abstract and still nothing abstract about the feel it's going to go into the dog's mouth but the claims don't recite the thing that's going to go into the dark product it's not specific isn't there i thought there was at least one claim that talked actually making a food product well that's that's a that's a direction first suggestion that based on analysis that was done of the natural correlations that somebody make a food product there's no claim to a composition anywhere in here that says the composition of food for dogs or cats reciting the following   cover situations in which everything in the database was old and well known and not any new discovery at all i think it would or are absolutely in fact these claims are  they don't specify anything to be known versus on the cover all of the correlations and and as i think we've discussed so unlike even mayo the east patent don't involve the finding of even a new natural phenomenon just checking information that is on a certain subject even if that information is old that's right and that's true for each of the steps right then claim told you years ago you're not telling some of this was known well your honor the fruits following the idea that nutrients could affect health has been known for generations and the idea that nutrients could affect gene expression was absolutely known before these patents were filed which is shown by our  submission for an alternative basis to uphold the finding on three of the patents under p c p guy which recites exactly these things and p c p guy nearly verbatim says that we can study how nutrients affect the expression of genes and study which genes are related to disease conditions or health condition so i have them i guess i'm just trying to pick up and i think what just i was referring to that the the the poor of the one zero one problem here is not so much that it's about actual phenomena it is that it is about reading and allies ing information at quite a high level of generality let's wherever the information  wholly generic wholly abstract and recited just as the district court said at such a high level as to not be sufficient to transform the claims made it was actually very instructive on this point as one of the things that the supreme court in mail said about the claims that issue there was that they they told doctors about a natural law and suggested that doctors take it into account when treating their patients and they went on the state the state of slightly differently which is important that the claims were characterized there is telling the relevant audience about natural laws and i'm trusting them to use the laws appropriately where relevant to their decision making and that was the reasons aren't really an overstatement they were dealing with  specific well i don't quite broad i think i disagree i think they're actually all very broad none of these claims recite anything more specific or than just the general recitation of looking at these natural correlations the natural genes related to disease and how nutrients affect gene expression and then a generic recitation of analyzing that information or determining the relationships no claim is more specific than that and then finally formulating a preparing or determining a food composition nothing is more specific than that and so although he will pat wants to focus on the notion of high throughput genomics and vast volumes of data the rich amounts of data the claims don't recite or require that these claims are broad enough to encompass looking at a single gene looking at a single nutrient and making the mere decision whether to add that nutrient to a food or diet product if it's good for health or remove it if it's bad for health or not use if it's bad for health and that we submit is absolutely the type of mental process that has been routinely rejected by the supreme court in this court so in the in the recent jurisprudence it's just too vague and too abstract it's purely post solution conventional activity because people have known for generations  to when we find something that's good for our health make a food out of it or add it to food and we find something that's bad for our health or an animal's health we remove it from food or try to make a food without that's the only reference that exists at the end of these claims to based on what we saw before or what we saw in the natural correlations make a decision whether or not to add something good or remove something that's bad their pet food products out there that are offered as good  for the health of your animals teeth and gums so the convention it's purely conventional and postlude and insignificant post solution activity the third in that even the fourth step of their process because those things have been done forever in various contexts the only thing different reciting these claims is the input instead of talking about adding protein or removing fat or putting vitamins into a diet we have a different set of inputs but those inputs are the natural relationships between genes and nutrition or the sort of nutrients and the expression of genes and genes and their relation to disease well the only difference is it was well known to look to that relationship i'm sorry your honor was well known expression and it was also known to do it this way because it had been done before and  so i think if i go back to the point about the scope of the claims this decision under section one hundred one is based on what the claims are how they are written and what they cover not a narrow selective example of a high throughput scenario that that team of pet would like say i want to start on this last point the idea that somehow genomic information has been understood and known for a long time with respect to formulating nutrition that's not the case certainly any life science field is an evolutionary process and we don't  the idea of nutrients affecting the expression of single genes was around for a while but genomic dated a new animal pardon the pun it a new way of looking at information that wasn't around at the time of the patent that hill's themselves was not using in formulating their own diet until around two thousand and three and later since since all of your claims talk quite generically of that data bases why isn't a tiny little computer library with one  restated in it about which as you say it was understood that the tradition that if a the degree of expression of that gene why wouldn't all of your clients read on that because that would not qualify under the construction of the terms genomic map data and genomic data which tending clude as part of the data points expression of genes but it's the relationship not just the way one gene expresses itself the state on the relationship between those genes and the genomic information that's what's new about this data and it's actually very similar to how this court ruled in the class an opinion which was a few years ago and was also part of the more recent lifesciences opinion which as far as we understand is still good law and not made any effort to distinguish our claims from the claims held eligible in class and aside from the suggested classes no longer valid but these claims which to look at the class an opinion there were three separate claims in that case one of which information took that process of analysis and said then apply it by going out and immunize and pursuant to that schedule can i just return to is that the subject of my last question what aspect of the clean the judge's opinion it's actually the earlier section where she construed you know the data in the claim construction in the in construction order part of hilda's challenge had been with respect to whether or not you know make data could include gene expression data at all and they had tried to to conclude i just want to point out that these claims are absolutely directed to a physical process and whether or not there they want to make a definite challenge about them at a later date if they have that ability that's a different question than whether or not they're direct eligible subject matter and as this court held in klassen and that this supreme court held in fear claims that are directed to a physical process even if they take conventional steps and even if they consider relationships that in a vacuum might be considered