we should do with a claim construction so in order in order to notice you both spend a lot of time fighting about the standard of review we're supposed to apply correctly you start there and then in order to reverse the  that the error made by the just report on the clink destruction issue in order to do that there are no disputed facts underline the infringement contention other than the claim construction the error of finding that there was a disputed fact other than the claim construction are you saying there are disputed facts within the claim construe i apologize i misspoke well but no not so sure you need to withdraw in that very much then how do we determine what samyn we all know that dime got my tongue squarely in my cheek when i'm asking some of these questions but it seems like you folks have put this issue somewhat in contention haven't you that's so you want the novel standard of review so that we can do whatever we want with the claim construction i'm not sure you're competing council will say the same under so your honor could could we talk is not clear is that amplification and enrichment are overlapping subs that many forms of performing amplification would also result in enrichment but many forms would not there are there are set subsets on either side there is a clear and very straight forward claim differentiation on two separate independent playing if you look at claim  number of copies and then enrichment means increasing the relative concentration and if you increase the number of copies in some sense instances without removing the other d n a you will increase the relative concentration perhaps if but you can increase the relative concentration by removing some some of the starting sample as well there are ways to do it without amplification and if you look at claim nineteen it says practice claim one which requires  amplification steps that were part separate and apart from enrichment steps there is also a substantial overlapping portion of that set where enrichment and amplification can be done in the same process so that is the fundamental confusion that the district for that in relying on that one answer that they can be the same from our experts and there's a claim can the claim differentiation argument is clear you could not if enrichment amplification a rather standard step in this kind of biotechnology biotechnology and fla file what you need to work with so you can detect within it what you're looking for right assists specific teaching of the supreme court and that is what arias that continues to urge this court to do simply say the tools that were available were no if you look at deer it tells us the in this case the starting material the thing you're analyzing was completely unanticipated completely unknown at the time it was a big departure for someone to look at that i would have our bitches threw it away exactly and compare that year honor to dear where they were the equation was no using heat and a time limit on the temperature of the rubber was known and dear said look it's often going to be the case that all of the constituent parts are things that are known issue it's the patentee in in combining them in a new and novel way to do something that had never been done before and here that's literally the case it's widely recognised this is a dramatic departure in a long substance was discarded and that the fetal d n a would be in a high enough concentration they were trying to find fetal cells which also circulate and they may not have been decades and decades of work on the idea that there would be it would be easier heat and time levels there was nothing new about that equation that was well not but nobody had ever used them in that combination to achieve that result same thing here there's there's nothing new about fractionation or amplification or texan but no one had used them in combination and i think it's very very helpful actually to look at what the supreme court tells us to very carefully look at have they taken over the whole field have they merely drafted around this to take over the whole the claim taken over monopolise or preempted the field the answer is no there's no dispute that there are two peer reviewed examples in the in the record and i want to particularly point you to a twenty two seventy three it's a peer reviewed article about doing this without amplification and in that article there was writing about the fact that there there are an innovation to do this test without without amplification makes it a better test it all the steps were standard tools that were available at the time you're saying what was in which different here is the underlying material no i'm not i'm saying it's not just the underlying material i'm saying it's the use of a particular portion of the and the widely recognized in the field as an enormous the parker for what they were trying to do i would point the court towards deer which says the machinery pointed out is suitable for the process may or may not be  process itself may be altogether new produce an entirely new result that's what the supreme court has found for us were routinely going to be confronted with massive flames where that underlying steps that are brought to the to the method are known already has anyone ever done this process as it's claimed before you'd know absolutely no and if anyone ever received the result to receive before we did no absolutely not and the record thirty or price it's going to have some effect on your ability to attract people to your product is that that's correct and in here we have a special circumstance where you have an insurance companies that are really play an important role in setting that price and keeping it down so it's a particularly dramatic thing but i want to get to the issue of destruction there but it is for to set a rule that a new company can enter a business with a single product under the threat of a known threat or a patent problem and that single factor considered as part of the you know it is a factor to be considered absolutely but if it's the if it is a determinant to factor then it will put them out of business it will simply give a get out of jail free card absolutely on that issue available one can then conclude whether or not the father is r h d negative all we know when events is to look at a particular area where the father of the mother may have contributed differential  wheels to to the to the fetus and once we run those two taps that there that known in advance think construction would completely remove the arch the example from good morning me please the court how did your company learn how to do this process all by itself we didn't just came up with the how to analyze the discarded machines you copied the patent absolutely not you didn't learn anything from the pet you're completely ignorant of the patent we were not getting rid of the patent we learned nothing from the patent but part of how to do what we do the central element of the path which is a central element is the central element it's the part that no one else knew how to do that a common scientific fact i mean this is this is just an observa phenomena isn't it is the detection of a natural phenomenon but the following statement to make i believe is completely c f s then there was not invented no it's always been there and in fact in publication from one nine hundred ninety five by a russian scientist that issue was not addressed by the district court in its opinion it didn't reach either a priority issue and it didn't reach and enablement issue it focused on  the first to and to discover it let's just make that assumption for purposes of this argument we don't agree with that but let's just assume that's the case the world seems to that the world you supposedly come from seems to have knowledge innovators and adv a discovery of a natural phenomenon what was not new was anything they did to find it but was not new with anything they did to discover cell free d serum or plasma they did exactly what was done before and in fact they said this repeatedly to the patent office i imagine because they were worried about getting rejections i'm written description grounds so before in a sequence that had never been used before to receive a result that had never been received the sequence had been used before the exact sequence had been used before to detect cell free d what was discovered but the process of finding it and detecting it the combination of steps that was used the tools of biotechnology have been around for years it's putting them into new uses that revolutionize science has been it's acquired great acclaim for these inventors and then some people come along and cop before that look for the paternal side you talk about they used to look at the mother's d n a that's true now they're looking at the fetal extract and the paternal compliment of that at that and that before before hand people looked at a lot of different things they were mostly looking and there's no i now proceed and telling us why that doesn't decide this case it doesn't  way to receive a different result that looking at a different thing bolton is the little origin and the part of the fetal origins material that you're looking at that let me say this a different way the only thing that is different about a five forty patent and what existed the day before was five forty patent is the discovery of the natural phenomenon that  can we study that's my client started in two thousand and ten so the answer is no we came up with a completely novel way of doing this but we do it is completely different than what every other compan patent because we think the patent is not infringed and we think the patent is not doubt for both of those reasons your honour's asked a question at the beginning about the standard of review there are two important points about that standard of review so i want to address that just briefly the first is that there is an abuse of discretion standard that applies to clearly everything except probably claim construction but i want to get to that in a second so the balancing of hardships the reparable harm determination of public interest factors all of those are subject to an abuse of discretion motion only that can i ask you about that the actual claim constructions yet we run out of time here please and in terms of the amplification if if i understand that the district court said the  construction of amplifying we don't infringe and if the only thing the court looked at was the deposition testimony of their expert as opposed to the attorney construct a declaration of their experts their expert gave absolutely unqualified and ambiguous answer to an important question the question that turns upon their interpretation of amplifier which is that it's different than enrichment was asked is amplifying d n a the same as enriching d n a answer fundamentally that's not a agree that enrichment with with the that they agree with the quotation from apparently your expert that i read earlier about the definition of enrichment everyone i think  doesn't say you don't enrich it just as restarting material is at least point fourteen percent and that's all that it tells you it doesn't say don't perform enrichment talking about no enrichment before you arrive at the point one for that's correct it's saying because claiming one requires amplification and there is no difference between amplification and enrichment it's the same thing the the r h d gene and then they said an examiner interview you can have your patent if you change it to add paternally inheritance and in the remarks found to be enabled were the five experiments disclosed in the specification and they said that in every single office action mr mallock check said that our construction but courts construction excludes the r h d gene example that's just not true it's not true for the following reason you know in advance that the mother the negative that means you know in advance that if a claim is practiced because the claimant requires the detection of paternally inherited nucleic acid you maternal from fetal and therefore they limited it to paternal i don't want the so clear from the record i couldn't understand your exploiter were also statements in the record also i thought that was the driving invention where in the primer they are going to use for the amplification staff is field specific so if you use a primer that is specific to for example the y chromosome and therefore specific to the foetus you will get a amplification that increases just that y chromosome region the negative pregnant of claims free is that you can use a primer that is not  differentiation and i would also point the court to columns ten columns fourteen fifteen where exactly those kind of nonspecific amplification prophecies which would increase the total concentration of d n a irrespective of it of its source are right in the past so again this this claim construction would read examples and claims right out of the pattern on the on the issue of whether or not it's transformer or not the i understand the male case is on review but this court did distinguish between the kinds of steps isolation but very similar to the kind of amplification step while you were making copies or selecting regions it's not its natural state anymore the fractionation step takes it out of its natural state there's a substantial amount of transfer mation on the material it goes on during the course of this asset this is not like the cases that this federal with this court has been concerned about where people are merely put apply in a mental step to say look at some things and compare it to make a comparative diagnosis look at metabolites level  when i was a process where it is in and this invention where is are that type of separation it seems to me that it's at the end of the day it's process also what's happening patenting a method applied to it to detect a birth defect absolutely no staff and then a portion of what was once in the bottle absolutely not there are no we're not even close to the steps you're taking or we're all already well known i mean that's true and we don't dispute that whatsoever so we're the stats and deer for the supreme court very clearly told us if you do an analysis assess look at the stats and see that they were known before the you have not done your job you must look at them in context you must look at there's been a monopolization or preemption of all uses of that natural phenomenon there is undisputed record evidence that is not the