indeed been said to be a question of fact odd the way it has come to be applied and the way perhaps should be applied it's much more like claim construction in that the question is resolved based on the four corners of the document in light of how those words would be interpreted by a person skilled in the art which is a question of law when you do it for the claims it logically could be that way also it's very akin to the question of conception that's really what it's all that this written question we ask you this in your initial brief you complained about in ruining your instruction on written prescription but it wasn't clear to me and i couldn't find it in the record rather  g objection was made in a correct instruction after it was required by the rules of procedure can you help me out on that your honor my recollection is that objection was totally made not only was  was that the proposed instruction said that the patent had to give a functional description and lily citing this court's cases said no that's not correct it has to be a writing a proper instruction there was a charge conference and that is what i have just stated and i would have to check the record your honor but i believe that there were competing jury the drug that is the way that the question of conception is dealt with now and it would not be a logical to do it that way the question of conception is ultimately a question of law based on underlying facts so we could use a test for britain ascript well certainly the outcome in this case was perhaps changed one and it is always a problem when the technology is as complex as this is to present the issue of fact if we continue to call it an issue  ruth no i do not because then why do you care because i was asked sufficient support for a generic convention in any one of a number of ways one of which would be by a number of species from which a recent scientific analysis can be is that the thing claiming to be something that the applicant invented as shown by an objective analysis of the four corners of his patent application and that is indeed what the statute has always require it was of whether it be applicant is playing something which according to its patent description he invented is a fundamentally different question than the question of whether different persons hypothetical person of ordinary skill we are originated this subject and has not invented it as reflected in his corroborated conception the patent documents he is not entitle to a patent on it that's the way our system is set up the patent goes to the originator and here described are identified the identified are richard webb and therefore that was the invention that had to be enabled but that's different than than the is our most difficult there are we given the philosophical imprecision of language we find that burgers even comparable to peddle and yet now you're making that requirement separate and apart from whether somebody else looking at it might have been able to do it that will limit what a patent that can claim in his application that is he must be at demonstrated within the four corners of that application as it's read by a person skilled in the art that that's something he invented i e something he can see and because not hardly ideas are legally sufficient conceptions and indeed many of them are not research cla has to be presented in the original case it doesn't have to say it's the first time there's only one requirement it says it has to comply with thirty five hundred twelve first fair get it doris you're entitled to that date and i believe it's conceded by that in that environment this sort of written description analysis goes on all the time and it can only go wrong under that statutory framework if it's a legal requirement of section one to it and if you accept that there is no principal reason rich create a rule should the written description require he did not i did he say and rasmussen that he was just applying it is the had always been applied in the priority context as i can see did it was uncomfortable with what he perceived to be a narrow application of the no matter doctrine so if it was created with a narrow purpose how did it suddenly get so broad description cases those were unable in kids with the word they used your iris to spell which was of course consistent with the statutory framework well i mean the problem is probably trying to description requirement is so as the skeptic gets left out there is the fundamental requirement of the united states that the person who applied for it have invented what's now and that is judged by reference to his own description of the invention which is the corroborated evidence of what he can see and if he didn't get it he's not entitled to a patent whether somebody else could have done it or not and that's the structure of our system and if it's to be changed dispute has gotten confused here the argument over whether the description principles applied to original claims counsel can you give me an example of any kind of case under genus species example but any kind of case in a different technology area where and originally filed claim could fail the written description requirement sure i mean this is accused in which one of the key elements of the limitations in the past was described in purely functional terms and this is the example given claim claims it in terms of its function then it may well be that really into original style does not a person having skill in the right reading that specification would not be able to say i recognize that this inventor can see what h cases can you reject that you couldn't otherwise reject only if we adopt exactly what you're proposing i don't know absolute number your honor but i think that number must be high we're talking four hundred thousand patent applications examined every year by the patent office and it's really a sort of archetype of problem and it's not just a species of chemical compounds it's take transit versus buying it that was where the claim was the original disclosure was only conical shape hip replacement and the amended claim attempted to cover ement is available to address a large number of these problems the court's recent post decision only rodrigues demonstrates that we think but at the same time it's not always true that something that  answer the question the question in this case really is if the inventor had never thought of b c and d never knew about it never conceived of it if it turns out later that d is commercially valuable can they go back and clean the priority date and the answer that question the view of the patent office has to be  of the words of the statute and what we are suggesting is that the description of the invention and how to use it is measured by the subsequent by the following terms therefore passed there concise and exact therefore it has to enable standard they came up with possession and then when that we do standard for possession it became seat plates chemical what we're saying is the identification part is to tell somebody what you're making and then tell them how this week we in our case we identify you know you want to stop the cell producing this stuff by reducing and happy and nobody said that was good they went back and they said well we have to look at the different species  alone because i'm not really sure i appreciate how the new test would work well i think that the i've not seen the supreme court ever do this type i don't i don't use the word firing but i think the worry is did they open the door did they show here's how to do it and then it was westbury how many they did with the clarity had to do what the court upheld it was intended to both methods and that's all ok so there is no holding that the identification of a common principle takes you to claim your taining it the cases are legion that when all you're trying to claim is the