that's number one six two seven zero nine and that is an appeal from a decision in the northern district of california on a motion but the abuse of prescription exists when there are legal or for example if a clear injunction is issued because the district court judge relied on extreme together that's ignoring intrinsic evidence that's a clear are in pretty good with the party and brought the i p r is that right there was the reason we there was no litigation about that one way or the other we did not but we did not take a position below we don't there's a lot of other an elements of a stopping point but the pretty thing we want to just get off the table yeah i appreciate that we don't concede this pretty but for purposes of this argument there's nothing that we did there's no case that we because they permit the incorporation of nuclear sites i'm saying that right yes you're hearing the nuclear sides in nucleic acids which is supposedly impossible now or one of your experts mr bron has testified that it was quote generally known that quote nuclear sites could be used in labeling methods such as those claimed in the five thirty seven at that's at fifty four ninety do you know how do you reconcile your argument with your experts testimony so i think that we need to put that in context and i would appreciate that that line that line comes from a three and a half year old declaration related i  and for nucleotides that could be included such as those in the five thirty seven he was never asked the question put a nucleus side be incorporated correctly  if you want to talk about admissions i think it's important to realize that in that same case so he was never asked the question doesn't nucleus of let me be clear let me be clear here because he also says three paragraphs before that on paper before in the record that a nuclear site does not have a i think there's a theme here which is that words matter when you draft a patent you submit it and whenever they get in the way they're glossed over in the spirit and in this case here it says as we so first of all in in the two prime argument what he says is in effect there's there's no guidance at all and first i think it's important to realize that for most of these you have to look at it as a claim as a whole so we're talking about the fact that we're trying to incorporate or attach a class of protecting groups that are two thousand and now we're talking about and the fact that the utility of this protective group is t stop the linking process that goes through the three process which is just a reference to a location on the model on the shoulder which is kind of the torso of the nuclear issue so that's the process for trying to stop all of the our talks about putting a protecti group on the three prime all of the disclosure in the patent folks about putting a protective group about there's almost no ironically what we've got there for this given that the protected group is the invention here there's almost no disclosure in the whether it's the two the group of two thousand different as either groups figure out how to put them on the two prime or one didn't matter which is known for its being small which is the opposite of infringement defense but to say that we conceded it were stipulated to it is i think over extended but we don't have an infringement defense before the court i think that you put your finger on something that seemed to be going thought and we continue to believe that this is a pattern that has a lot of holes with it this is a pattern that's that has no one ailment this is a pattern where the claimed invention that this special inventive step is in is you know but it's not mentioned in what judge allsup found without any real test even found that you were really into the market and that you had to do pricing structure that could impact the market and so therefore you could dramatically alter the market and to add to have a discount price there's no evidence of that so so the judge talked about a crucial inflection point something special about the market now but the facts were that this market existed for a long time here are to prevent invalid improper patents that should have been planned from directly affecting congress i mean you have an important industry you have it you have in the appellee a company that's dominated it there's been one for years  seventy percent market there's been one other participant in the market and at twenty five thirty percent market share we try to come in if you've seen the confidential numbers in the briefs about the very slow start to really appreciate that is bigger to incremental market with a different distribution system severely priced depressed pricing and and then to do it from a perspective of infringing one should we allow  why should the law permit this entity which why should we view this as being good for competition and innovation in the market what's right that way it shouldn't be but that's not what we think the here obviously we think it's an invalid patent defense you mean and that's a real one and we've just need to assert a substantial question at this stage and have discovery but what we think that we have through you know various very existed for years nothing new about this aluminum knew that this is what customers like they've done it themselves their competitor the second in the market thermo fisher has done this for years that's in the record nothing new about  to the extent that our our our sequencer is actually more expensive than many of their signatures because it's different ours are complete workflow the reason why it's even attractive it's a different system it takes that was the appeal of the system but to the extent that you're referring to there was a period of trying buy where we were offering them for a lower price or even i say you pay if you like it if we hadn't been enjoying been there like that then they would have paid us i mean we've got a joint you're that's that's very typical one of your new market entry and you say we're trying it for a little bit and see what you like and if you don't like it we'll give it back but if you do then you'll pay for it obviously we're just giving them away that's not a very good business so that was never the business model trust me so i think that that's a very important point is that this disruptive price lawyer argument that  into the record since the injunction there's actually been an announcement that there was a designer so it's not like this was impossible that the company and i don't think the testimony was that i think the testimony was so i read that well because it was a sn think it's when the case was filed you started looking to alternatives do you have one just not at this time that was august for a case filed of june september is the announcement of the injunction  it's come up now the reason why is why the ruling was wrong and it's restrained our own economic liberty to make choice and enter into the market i mean the fact is we  sabbat never saying that it was hard why because they're not only saying that they have a replacement chemistry they're saying it's better and they can't tell the markets the financial markets that they've got a better thing that spurred them to innovation the finding that they were frenching and so forth and then on the other hand come to the court and argue this is a grievous injury or any injury so of market share not anything that's that's that's that's significant let me address that so this is the question of what the markets and there's been some deflation of that and if you know your questions as always are and its dominance and all that that's different than d n a sequencing broadly ok little page of history is important here which is and it's on the record is that typically they were sold to these genome centers that by hundreds of d n a sequences for research universities that's where the market is for d n a sequence or start with this pattern i know here is a lot of these type of cases this is what's going on what's happened in the last few years and you've heard about it you'll hear more is that people are learning how to apply d n a sequencing to personalized medical care which means it's a completely different market it's going to the cleveland clinic or reed hospital and saying you know you should have i mean i don't i don't think there's any evidence you are and i don't think that they're entitled to argue well well like that not that we are it's i mean you argue the wasn't supposed to present the evidence why we should have the record in the court below found that the balance of the argument is there's others in the market so why we complain their argument is this that i am torrent there's these other systems why they picking on us and the reason we're picking on us is that industry analysts have found their system to be i that's the word that was used not by us by a third party and it's not been contested ok so we're going to these hospitals they go home hospital labs as customers that's their business they're doing something else and selling them things to how you get blood whatever so if we're faced with a new market right with emerging technology yes she would be more careful with injunctions at that point you should be more careful to protect the property rights owner in the emerging markets that's what the case law say that the entry of this particular company into this new marketplace won't won't won't expand and sustain competitiveness as well as maybe drive other innovation that argument applies to any injunction and chemistry twenty twelve twenty fifteen had a prior product that they abandoned that was infringing their recidivists they come back they've been changing the chemical formulations they say that publicly then they have to come to market because of internal pressures apparently and they go forward not a situation as i understand it where they made the argument that it's a two person market and that in the absence of this competition that that that health care system in the united states is going to be at a low it's the opposite vent own declaration it was a senior executive or company and he wrote a careful declaration that we were allies on documentation for public literature and important governmental reports on the emergence of  making it not the province of huge massive labs that are specialized but bring it to the hospital and a doctor's office but on that i mean i do want to say on this issue of innovation they've come out and said they have money on this we need to have a crash program and we've got to get it out now and then get out and they announce to the financial markets and everyone they get their short of them that they've got a better chemistry now so that we made their product better if you accept their comments at face there's the admission that judge walloping a get out which is point blank an end it just there there's the fact that their own expert in his own patent application used the same nucleotide nuclear side formulation this thing which will circumstances don't listen to anything that said contra that indistinguishable circumstances now the argument is what they put the whole point is that in our patent we somehow disclaim that our nuclear side could ever be incorporated because it can never be associated with fault with us for includes nuclear site analogues which have site chains or other reactive groups that let it be attached to other molecules and there's just no reason to say why that wouldn't include the phosphates that are part of what how the system describes that it's work on top of that there are alternatives where you wouldn't necessarily use the phosphates there's a z t process which is it eight hundred forty and forty one and then there's chemical so that multiple others but even if that was all untrue and it's not and even the patent then you say that it includes nuclear sites and you don't believe it put every reason even though it's generally accepted the art of fact finding they don't deny in the york generally accepted science can be incorporated they don't deny that their arguments just lexicographer thing that they still have to win on their claim for it which make which is which to me claim for says where the would be a tough day so they have to win both those arguments and have to have a finding that the district court got all that wrong as a matter of its discretionary exercise in view of all the others i think at the end of the day what i want to say is when they brought their motion to expedite this appeal they represented to the court that the injunction would be long term damage they said some things which i think certainly in hindsight were irresponsible capturing and then the appeal doesn't mention any harm to them whatsoever because they're being meticulous about not saying any harm fall close to reste that's a bit of an abuse of the process but hold that aside for a second my point about making this is there's an injunction right now that's not hurting anyone they've got their plan they're not that they're committed to it they say that it's bad or they can't possibly go back and that the markets are never going to go back because we got a it holds the status quo if there are any questions regarding whether they can find it on a thread the needle on obviousness through their values before or somehow one of these enablement claims becomes something then that can be reviewed by this court on a full record at the end of the time the normal way you do it they don't have an allegation in this appeal that maintaining the status quo is harmful to them so what what would even be the point permits and certainly judge us are careful opinions don't deserve that well in fairness to the injunction never should have been entered i'm sure there is a bond that's pending and they will be able to show that there was some damage from failure to be in the market so they're the ones that are arguing that they barely made any inroads into the market so i think judge also covers that in his day requests like wait you're the one saying you're barely making any inroads into the market how could you  interest point was that that we can that we present didn't judge us accept interesting goodwin is there going to these smaller institutions selling them sexually their first d n a sequence or i don't know every time but it's new  mr rice tried to get an executive met that your your machine doesn't work race it works exactly as we're telling everyone it will it doesn't need to do all the things that you do it does what the clinical absolutely and by the way the notion of this is an emerging market is wrong in twenty twelve they're going to find this is an important market and they got f d a approval so they could go to this market so it's not a new markets growing sure that everything grows and we're out technology these products are going to have a radical new use but if you're going to enjoying someone just put them out of the market with the trial just a year away and very quantifiable damages put an expert on put in economic and you know i think you specifically have not appealed the balance of harms so you're there's no we should be for as an alpha tension harm to your client we you have an appealing balance of harms you factors right so we have to assume that yes that's fine but what i'm saying is and that is the balance of harm issue about our entry that's all it is it doesn't take away from the issue of irreparable harm three of the record and we're your expert says we feel we're significantly behind on many of those and so on and it sure looks to me like he is conceding you know so so what the question was about a sample and it will tell you the whole genome ours doesn't have that power so we say look here's a cancer gene of interest here's a panel of cancer genes of interest you don't need that power for what we're doing and what our attraction is it's a whole work