may please the court the district court but while failing to undertake several necessary steps in this case and the legal analysis it did perform was erroneous this court should reverse for three independent reasons first in this case it was necessary to undertake claim construction to look at the claim for the bridge will only to look at factual development and to fully consider the prosecution history and the court's failure to do that below is reversible error the second but male in a number of respects first of all in mayo the discovery of the issue was really not a discovery the idea of using these bio carrying drugs for for treating any immune disorders was known in  there was the just coverage here then when and then perhaps it could have been claimed as as a new method of determining something involving physical steps but it wasn't it is because the very much like the rapid litigation case in that case there was a discovery that liver cells could be repeatedly frozen and the inventor supplied that by using conventional fusing techniques but doing it in a new way to preserve the liver cells that is exactly what to achieve a new and useful result contrary to true cults arguments these patents are not merely a discovery of the law of nature the us p t o found on multiple occasions that the m p o testing patents innovative we cover predict risk of cardiovascular disease this was a market improvement over the then state of the art methods measuring measuring m p l simply put cleveland clinic invented a specific way to see young of and a specific way to use the new result none of this just can't get away from the fact that it seems to me that the claims the wreck directed towards are you so impeded in human samples in order to predict cardiovascular disease right that you are using m p o quarterback and you're saying that well what's normal here is you know we get a better result now what's novel here is that nobody knew even to do this beforehand and they didn't know how to do it the prior were terrible at sky a method which was the only thing that ever looked at other than that and you're taking a step to know ok step one i'm sorry one of the claims in the record because it's directed to an application it's like rabid litigation it's not directed to simply observing the natural phenomena it's directed to a new method a are techniques you can use to do this that's why it's like rapid litigation and then you add to that to train the whole comparing methodology i would submit there is no case that this poor of the supreme court has ever said fails want to go on with anything  inventors looked at thousands upon thousands of samples to initially determine what could be a comparison level and then as the specification teaches they dynamically adjust those levels with new data does obtain it's not just looking nt specifically talks about immunological technique how are those the ones that aren't addressed not waive their weight because it was a general objection to using representative claims that it says each dependent claim has to be reviewed and then just say for issued the parties it stipulated to and no claim construction dispute whatsoever here are a lot of we argued number one these claims were not represented if you had to look at the dependent claims and that there were several critical claim terms that had to be construed including that is entirely human ingenuity that is all in the patent under a pre determined value description and in the examples for example example one in the five five to patent none of that was examined by the district court and all of that was supplied by the think it is very difficult to force a party at the pleading stage to to to develop an entire claim construction that's why we do market hearings that's why we have a claim construction process what they did do was identify the terms that needed construing and explain in objected to both of those they specifically said below you can't look at the claims as representative because the dependent claims are kind of new inventions different eventually and they said these are the terms that require construction and they put enough meat on the bone in that brief to if you're talking about determination and you've got this list of oxidation products and you have to figure out how those things dovetail that's why construction was so important you judge jury and maybe plain english everybody else not so much and so i think it has to be it has to be reviewed and it has to be looked at carefully i see i'm into my rebuttal time just one final point independently the two six zero inducement and contributory negligence claim should not have been dismissed and certainly  the detecting in a major you know convention but not for this purpose it's just like rapid litigation they were used for other purposes but they were not used for this purpose no one in the or ever thought to use them for this purpose but then you have the whole comparing methodology a convention but they were adapted i mean you know i mean all of our steps almost or all involve something different yeah they're detecting something different blood star organisms yeah but those specific tasks whether it's the allies or whether it's flow cytometry whether what they were used for other purposes they were not used for these purposes and they were adapted in the specification they tell you how we use these tests at baptism for this particular purpose and then you add the comparing the freeze thaw cycle so that the techniques were standard but they were only used once and with respect to self the rest those techniques were used in to cyprus twice and that was different than the conventional techniques those facts that analysis does not apply to this case the claims here the inventive contribution was the discovery of natural phenomena and whether it was an important discovery it was the discovery of a correlation between a blood  at the position that prior to this discovery these techniques had never been used previously to measure and heal in blood and to predict if you were screwed out of cardiovascular disease as aerial search shows step t thirty three thirty three where they say there were commercial kids available to quantify the impact on the i guess i'm asking more just from of from a legal perspective if if we determine that that's true methods are conventional well kno n the fact that they're used in a different way and or like step one for the detection to see the m p o in this case does that mean that they're no longer conventional or well known that that th step two know which is not your consistent with this court's decisions in that we also internet technologies step to looks at the detecting the comparing steps apart from the natural correlation part from the discovery independent medical subject matter so these claims as this court has noted as the supreme court has noted once the inventors discover the natural phenomenon they were going to position in a position to recite claims that provided the application of that natural law but they stopped at reciting the natural law or observing the natural law but wherein thaws simply instructs partisans to observe the natural phenomenon and there is nothing left to do so when i come up with my blueness intensity detector i mean hanson combining combined with additional application steps yes or no but the law does not say we're not taking the position that again every claim which recites or relies on in some diagnostic claims examined what is there what exists is it your view that diagnostic claims never passed muster because they are determining the  a natural phenomenon no you but diagnostic claims that use conventional techniques to observe a correlation and got apply that correlation and do not have to saying the use of non conventional technique of an eight on common combination so whether a competition is were burst or whether steps are performed twice with a priority each is only performed at once that could be a sufficient invent a concept for a diagnostic claim to pass the want to one filter the patent office which understandably is not binding provides examples in the instructions they get to examiners using a assaye that historically have been used in the bed in every sciences and applying it to human subjects or developing a new one may have made anti body to detect the natural phenomena those are examples to where that may provide sufficient then to concept to allow for extent that no one previously had used and i say an entire body that was used a poor sign usa in the veterinary science of music or other human drugs testimonials there well it's an example that given the right facts it could be an example unconventional steps that i think that what my worthy opponent just said effectively concedes the case he says if you use unconventional methods for a new purpose then his example was poor sign or animal but that's exactly what you are you have using these methods that nobody ever thought to use for m p l analysis and they applied it to any purpose here a new use that's exactly what happened in the detected steps my opponent mentioned the c reactive protein stuff they didn't use techniques that dependent claims that's why it's so critical to look at these dependent claims individually and that's what the district court didn't do the determining step tells the doctor to determine the level of their rabbit relevant metabolites through whatever process the doctor of the lab wishes to you right but then the dependent claims claim specific methods and if you look back at the specification they define the methods that are suitable and so if they're been claimed construction of determining one of the constructions even of that broader dependent claim may have been determining by using a method such acts flow cytometry mononucleosis anybody or something similar it would dramatically limits it would dramatically reduce the possibilities it wouldn't read a limitation into the claims but it would instruct the physicians how to do it in a way that would actually work that's why this is so different that my opponent mentioned cats but in the specification here there are specifically new