and you put them all together in a bag bacteria and a function is no differently in the bag than bacteria it functioned in the ground and so there are the supreme court said if all you're doing is getting bacteria a b and c and packaging them together and it really seems to  more of an innovation in packaging rather than providing a new functional utility here we actually have something different here we have these dyes that naturally occurring do not stabilized blood sugar because naturally occurring there or with five times their weight or more of sugar and so a person taking a naturally occurring pigment in the national current state which would be eating fresh fruit that would actually precipitate nucleotide sequence it doesn't exist in nature in an isolated form so if you had once you isolate it and then mix it with i don't know twenty thousand other  a sequences just like that one that you're isolated you're haven't really achieved anything in the supreme court sides so i guess that's the concern my my own feeling my own feeling with myriad is that the supreme court made very insightful distinction but they weren't necessarily clear in articulating it we've known for years and years that there is a gene correlated with breast cancer risk we've known for years and years that gene was somewhere on chromosome seventeen myriad found they found it on the location of it on chromosome seventeen in the supreme court invalidating their claims to the gene the supreme court was i think thinking you're not only patenting the gene you're passing the knowledge of where it is kind of like patenting the location of the town on a map that's knowledge in the abstract and we can't let you guys in myriad co opt the abstract knowledge of where on juice out of that into a glass so that i had four ounces of orange juice and i've isolated the juice from the orange so i don't have to go through all the trouble of eating the entire orange including the peel around it ever i created a knowledgeable composition of matter when that glass with juice does juice have a function different than a increases my vitamin c the orange fruit in your issues if you eat them and you have the same function provided by both and no that's not patentable if you all right so you're saying squeezing the juice into a class isn't that enough correct what about if i squeeze a bunch of grapefruit juice into that same glass and so now i have a mix of white use and grapefruit juice and i can say well you know i've increased my vitamin c level that much more as i've added great fruit juice to the orange juice to the max i the if eating a grapefruit in an orange fruit provides the same benefit as eating a crippled orange mix i'm not convinced that the juice would be nonobvious a mix is not that knowledgeable why would the orange juice and great first juice mix be eligible because the bacteria in funk brothers are not they are if they're physically in the same bag but they're not actually come they're not combined with each other they are it's as if you took whole oranges and whole great fruits actually the extract inside the fruit which still active with you should blood sugar it still functions the same way nothing changes about its function inside the fruit or outside of the fruit it's just that when it's in the for the food itself has a lot of natural sugar as well so it kind of cancels each other i right ok so it isn't that your extract performs differently when purified than it performs in the fruit it's just the fruit has some natural sugar which adds to your insulin r so you don't have something that performs differently inside the fruit than it does outside of the fruit and the supreme court was really cure clear in myriad let me read you a couple quotes from area for the reasons that follow we hold that a naturally occurring d in isolation it's necessary isolation is necessary to conduct genetic testing i e there's a different function when you can isolate the d n a collected genetic testing out of the you couldn't do what it was inside the human body that wasn't enough to make it eligible just like here there's a different function that can be achieved when you can separate out and get rid of the sugar in the fruit and i don't see how i just don't see how myriad hasn't closed the door to your  want to spend can you spend one minute on your examples because you have a separate argument that you seem to have not addressed at all about the fact that even if these excerpts are found in nature there's an inventive come concept because when combined and the inventors also found that if you take those pigments and you combine them with either a crystal and compound from another kind of plant that they have a different effect and if you take these that you get a better health benefit when you're combining natural ingredient one with two or one with two and three and i'm just curious it wasn't clear to me that the specification make clear that when you combine all three ingredients you get a better health benefit than if you were to take the three in the ingredients individually in series so instead of taking the three ingredients mixing them together and go  one shot you first take the first ingredient then you immediately take the second degree and then you take the third cup and you take the third ingredient you get your specification didn't make clear that you get some kind of i'll just call it synergistic extra plus benefit when you take all three ingredients when mixed together as opposed to taking them individually understand my question i understand your question what is the answer to my question i don't think we're early and matters if you take them in one pill or if you take them in three different pills one right after the other and what matters is that these compounds are in your bloodstream at the same time and to my knowledge no one has ever tried doing that before ok so let me make sure i understand you're saying that there's no difference as you understand it and whether the it the three ingredients are mixed together in a single composition versus them being three individual compositions that are then taken in series correct because all the action is going on inside the body exactly just to be clear because i think that something just got left out and not to your advantage matters that they're all three in your same concern i have is that there's nothing necessarily beneficial about having all three of them united together in a single composition as it sounds more like maybe there would be an opportunity for a method claim take these three natural ingredients it doesn't even matter you know and what order in that specific timing because they'll all react to gather inside the system their human system but  it doesn't i don't understand how you get a markedly different characteristic by uniting the three together in a single couple you get a markedly different characteristics when you have all three in your body at the same time and so it can be as claimed in the same pill or it can be alternatively three different tells you take one now wait two minutes take another one but two minutes take another one as long as they're all in your bloodstream at the same time  they seem to produce an effect that no one of them alone produce position that examples eighteen and twenty seven represent eligible subject matter we do not believe they do ok that exam or believe well it ok let me say this and then the that i don't think examiners never had to really reach it because i thought that whatever given the breadth of the claim that there wasn't adequate evidence to show in markedly different characteristics it did sort of seem to  me say this that since that time there's been additional examples and guidance from the office and i think certainly with that guidance material we think that it wouldn't and we believe that the guidance materials consistent with what we have and from predators and in myriad and if i was answering his question about i think whether or not there was anything at all in the example that was sufficient enough to be market to market differences the decision of the board in the examiner was based on the fact that the claims are broad and if we look if i can maybe i think it would be helpful to go through the claims individually but if i could for example point you to what the what the examiner actually found what put the sense question are markedly different characteristics i understand that a great argument for example eighteen an example twenty seven are not even close to the breast of these claims right i get that argument try to put that aside and just focus on the hypothetical if there are two very specific examples in the specification like say the one percent this three percent this five percent s and it is articulated that that particular combination has unexpected results the examiner said it's looks to me like as unexpected result  kind of acknowledged it didn't take issue with that if if this claim were limited to that example under those circumstances with that the eligible well at this point we don't have that and so we don't actually have a definitive and so to the extent you are questioning do we have to show more of them and that they do something more than they do independently i think we don't have evidence to show that you know we don't have an anything to with we're comparing a and b together and we example a tool that if you take if you drink four ounces of orange juice with four ounces of grapefruit juice you're going to get more vitamin c then if you drink just four hours of orange juice a lot and so the question is ok but it doesn't explain to me if the mixture of your orange juice and grapefruit juice creates a better vitamin c effect say than drinking fo eighteen knowledgeable when there is no evidence that i can see it that says that drinking the mixture of orange juice and grapefruit juice you eat better healthful benefit than taking them separately examples there are nature based product examples and there are subject matter eligibility examples from life sciences and there are examples within them that discuss the whole issue of whether you have to but you boost with the four ounces of grapefruit juice so each one individually would give you eight percent if you drink them both was the finding is your vitamin c jumps up twenty percent right about the simple and stupid example but suppose that were the case that would be markedly different and like one to twenty nine i mean twenty nine more twenty times more twenty nine times more interest which is actually possibly outside of even the klan but never washington you have this but you don't have anything to sort of cover the entire range and that's that's the examiners find in which the boards are condemned and you're your proof to stress that there is no real structural difference at all when you mix these chemical compounds together a chemical compound into one chemical compound in that do mix them together there's no structural difference there's no chemical reaction that occurs between the compounds they're just mixed together you think that's modified genetically modified bacteria there is a structural difference or something different structurally from what's in the nature but we also think that if you have combined two things and even if they are structurally the same in the combination if they either create a new function or get example if you mix together orange juice and grapefruit juice and and instead of getting the expected extra benefit of four percent plus four percent eight percent but you get something like twenty percent benefit then even if there isn't any kind of chemical reaction going on between the mixed orange juice and grapefruit juice whatever is going on there somehow by simultaneously consuming both juices together you get the extra plus benefit that's good enough to be considered markedly different characteristic that would be the agencies for you i mean we're trying to be as careful as possible to apply these without stretching them beyond what we think they reasonably say and that is sort of the agency's position that in those circumstances you don't necessarily have to have a change in structure of the underlying compounds as long as they actually together act synergistic that humans had to do they've taken class and d n a the taken d n a multiple different pieces of d n a and they have transformed the bacterium really just transform into something that doesn't the transform bacterium doesn't occur in nature so it's different anything that occurs in in nature what's the transformation just the housing them in the extreme actually being able to take the d n a from an another source and actually be able to get it incorporated into the bacterium and get the agency's guidance sort of has these in a separate box and so it's basically taken beneath the natural products cases and applying myriad and rosslyn and not really going through the two step process sort of how when that independently the horn did kind of do the two step process but it seems fairly redundant because you're kind of doing the same thing in step one step two and so i think you can fairly do it either way but the nation has taken the position that these are kind of a separate category of things and there are there is his law that i see them and this is how the analysis is done but the other day i think the emperor is very similar because it's basically looking at whether or not there's something either significantly more markedly different from the natural what is there whether it be an abstract idea or whatever exception is it's looking at and comparing to what exists in nature and whether or not there  figure out where to draw a line on that the edge of his position right now is probably that it might not be because they haven't actually done more than add something that written in conventional but at this point that's not in this case so if you have additional questions product of nature right at the threshold and then we can move on to the next question which is does the combination of orange juice and if one goes four percent vitamin c in the other gives three does the combination give can't cannot really be a product of nature