you know i think this goes to the argument that the defendants made about whether there's actual evidence of using this probe you know in an actual experiment there's no evidence of that but there is absolutely no evidence that this would not work for its intended purpose to be used as approach and defense have the burden to come forward because it's their burden of proof on nominee ability to show that some claim them body mint would not work but they haven't provided any evidence all of the other understanding in the are up until that time which was just wrong because once the technology and understanding is taught about how to make these pros then the use of the pros in standard hy  recommend to it's a length of between five and five for the nucleotides it also teaches that twelve quote twelve matching preferably consecutive nucleotide units would be sufficient to affect identification of most d n a or any material to be investigator identified would you agree that the claims require attaching a label without interfering with the poly nucleotides ability to hybridize or the labels detect detectability upon hybrid ok and that's the preceding sentence to what i read you before which is it's undisputed that the specification no word discloses how to achieve those properties for any much less every these millions of pros you're otherwise i think that's part of the skepticism here anytime there is scepter is always skepticism about the utility of some kind of new new improvement in here you know it's under speed there is skepticism about labeling outside of certain basic positions that would even work you know but the test when even when it's not to dispel this skepticism this did teach one to make the news and there's no evidence in the record that using example five and running a i say that any point about him it would not work and i think that's the fundamental issue here we've set forth discourse in the specification how to make how to use and there's and then the discord them to went on to say well we would have now you're dividing your argument yes john is there a method to this i mean a you are getting one thing in your friend the other yes sure there's a little rhyme and reason that's a will for the non abbott defendants i'm going to argue enable which we're just discussing and also if you're iran is your interest of the indefiniteness issues related to want to go and then my my friend will argue with description and then throw five issues to the extent there are questions about that and so can you start with what your dixit it's worse than that because it was directly contradicts what was sworn to the patent office in one nine hundred eighty seven this is a day four seven zero three where they said quote it was determined that it was a paper rather than working exam will they go so far as to apologize that the it within the four corners of the patent which is of course the tax on and in fact there's an interesting shift that occurred here at the district court below the bulk of the argument that just any fail reading of what they said is the one of ordinary skill would know how to do that species of making the probe and there's really three things that have to happen here for it to be unable first they have to make a pro then they have to figure out whether it's hybridise a ball then they have to figure out whether it's detected when it's hybridized and i don't want to belabor this but d chemistry but dr werner figured out three specific places with three specific labels out of everything else that would actually work on the base and then enzo took a license to that and this is admitted this is in the record they said well we're concerned that people are going to design around this you know and it's hard work so we're going to just do a paper patent says everything else everywhere else on the basis everywhere on the phosphate moiety everywhere on the sugar morning we're just go years trying to figure out how to base we're going to the phosphate and the state of the article time i think this is undisputed it was a holy molecule this is dr rabbani the c e o they thought it might be anything you did t patent they attempt to claim everything else every other position every other base position every sugar position and every phosphate position whether it's a modified spade dye phosphate triphosphate and they try to claim it all without ever doing a single test to show hybridisation and detectability that's conceded by their experts at appendix sixty four forty one eighty four and sixty eight and then five fifty two and the only testing colleague mr worth pointed out there's no evidence that beyond the labeling with example five they actually did any testing of example five these patterns are the epitome of attempting to preempt the future before it arrives at most they both disclosed that some combination of labels linker dislocation and nucleotides might be able to be used as a probe that would both hybridise and remain detectable but nothing for example dr sherman one of the experts one of the answers experts with respect to the forty five thousand and appendix eighty four fifty five said quote for any given probe labeled at not that he not ward position with any particular linker or label quote we're doing the groundbreaking work of figuring out what does and doesn't work and it's trial and error that's appendix sixty five or nine when every single inventor in those consultants windsor's experts tell you that the only way to know is to make it and then test it then that falls in the heartland of this court's decision in a while because it is undisputed there are millions of possibilities here and there are thousands of of fluorescent labels alone and you would have to go through in order to know whether or not you would actually be hybridized will indetectable you have to go through and test it and that is the opinion even of undue experimentation both under the one factors and under this court's decision in wife and i think this  assume that there were that's not enough for them in order to create him tiriel issue of fact with respect to whether or not these patents are actually enable any and even if there were there would still be the disputed issue of fact but i think what the arguments boil down to is this issue of skepticism and i think that there are mistaking skepticism of the art about whether this would work first