but let me tell you one thing that i found quite confusing in the blue and that is that references to what people knew at the time of the nine eighty nine priority application which seems to me to be utterly if there is an interference or question priority but but but the what was known at the time the priority application is it relatives and not well well look well what's known in the priority application except as in terms of  kyra on basically set out to do the same thing which would come up with a truncated factor protein because for manufacturability purposes they both came up with the truncated factory which more or less deleted the domain but this is a big difference between them is a difference  that's true assuming that they claim that that that novartis claim that and actually disclose that but they didn't they didn't know anything about where on will appearance factor actually bound nobody knew that it was on a three how does a protein with a certain require your point is that the the four forty seven and six twenty patterns don't push serve the korean region right so they really do not the claims are so broad that they are not limited to preserving the a three region and therefore that they don't represent and new invention basically yours that's your contention that's correct that's correct your honor and and you know there's some real evidence in the record on this because this late sixteen eight you destroy the bone will appearance factor by i don't address that article or this evidence which came before the district court in a district court doesn't address it either but just that one change makes makes a huge difference in terms of bon able to shoot that down which i think we have and i think factually we have you know their case basically falls apart after that and just to take it to another level this ninety percent sequence i dampen your honor allows them to substitute something like sixty eight amino acids in in both the heavy chain and sixty eight in the light chain now if you substitute sixty eight mil light changed i mean you have freedom throughout that entire range so you could conceivably substitute that entire forty one range of amino acids with other amino acids and the patent for four seven patent column for line forty five actually permits you to make non conservatives have they don't have the binding so that's exactly right in fact they may not even have a still they're still different structurally substantially different but no i mean the the goal of the researchers of both was to delete as paths the goal was to come up with the largest number you could and still retain quite elation activity somebody skill in your career was evidence in the record at the district court that from the expert dr fay that you would know it's just common sense under k s r that if i can delete nine forty nine i can go to nine eleven where you're here you're you can be much clearer about this what your argument is that it it isn't rendered obvious because it claims something that has no utility basically that's your argument because the because of the breadth of the claims in the four forty seven in the sixty one they're not they allow it deletion of the three bind and therefore these claims cover things that have no utility with respect to binding and the question is if there is a different structure as the ritz in that in the four forty seven and six twenty forty and also at sixteen forty nine which is the beginning of a three so everybody knew that these were natural cleavage sites so it wouldn't be any obvious to employ those natural not those naturally occurring cleavage sites to the larger deletion range that you see in that one want to pat and and and so this was it's not only common sense to be able to delete if i can look at nine forty  nine you actually had direction in a prior art provided by genetics institute or actually caron had this this instruction from genetics institute as well the other thing i want to point out about this a three region is not there's a little bit of confusion because you know the court may be aware that there's another action in texas between where nevada sued white and down in texas and we have provided this the claim construction brief of the  novartis they actually say you can have deletions that that ninety percent sequence identity element also includes deletions so not sure what their position is they haven't really addressed the substitution issue here the unlike albert says that doesn't affect the board's ability to or the p t o s ability to have an interference proceeding as long as the disclaimer took place after the proceeding was initiated i don't understand how those they're both written by judge rich i don't understand how those cases are consistent i don't know if they haven't you can't address it because you know well all i can say is i don't think i mean to the extent that albert says you lose jurisdiction i would s wrongly decided that the strongest language that effect is in a footnote it seems and i think it is contrary to you know dozens hundreds of years of jurisprudence in this country the jurisdiction is established as of the time the complaint is filed and you only lose it's lose it if there's a change of circumstances amounting to move and i don't think any of the parties here say that these issues are moot because one twelve has expired and i don't want twelve six is expiring i guess room but but the outcome of this of this proceeding will impact on the texas case because the same patterns the same of artist patents are in soup in texas so there's a real world there's a real world fundamentally different ranges dramatically different they are different ranges but the problem is that the ranges claimed in the four forty seven and six twenty patents appear to claim things that would allow elimination of the a three binding side correct if one substituted in that region contrary to the teaching of the pat well maybe to counter the teacher than the risk column for which seems to suggest a substitution but but let's assume suppose suppose the this is correct that the claims cover a range that would eliminate the a three binding side so under that assumption then why aren't these four forty seven and six twenty patents obvious over the one twelve but the question is are the obvious in light of what tool teaching is in the claims of tool tools says nothing about substitutions nothing at all but if the presence of the presence of a common activity doesn't render one obvious over the other it's that that is correct and here in here under your opinion in the peterson case the true will claim with sixty eight thousand different varieties of such a large area doesn't really qualify as generous because it includes deletions that are into another functional area and since it is so large as judge robinson held in this case it doesn't render obvious i'm not understanding that and the question i was asking you is it if in in fact the the claims of the four forty seven the six twenty don't preserve the three area in other words they cover deletions which would eliminate the a three area and therefore they don't claim preservation of the binding site why are those claims obvious over the one well because because the nature of the claim is that they are permissive substitutions the required deletion which characterized in the bars claims does not indicate that and i would really like to speak to this conception that that somehow face in the patent does not talk about preserving the three binding site it doesn't but it does talk about preserving in the specification on one bring back to bind and in experiment number acid and made exactly that substitution but the examples of substitutions that are discussed in the specification are so substitutions to enhance expression for example changing the first amino acid from that's discussed and experiments performed on the nature of that substitution that such a touche and preserves on one branch that bind you you maintain that that is a relevant to the structural non obvious tool and you look at that claims of tools well as what was known in the prior art does that render obvious a very different range in tools there's nothing about the b region jules's nothing about stability tool discusses factor the second range non obvious if it has no utility i believe under the two way test is still non obvious what case would say that if it lacks utility that it's not obvious that the issue is when you and again peterson which examines this very question you ask yourself does a tool render obvious the patent and vice versa in the two a test and there again there's nothing in tool that would suggest choosing a smaller range because tool it has no recognition i think you're departing from my hypothetical my hypothetical is there is no utility to the preserve in the second set of patterns there's no utility at all it's just a structural difference that hasn't shown to have any benefit whatever it is that there is that second patent non obvious if that is known if that's reflected in the prior are in the tool path were there there needs to be some motivation for going to a different deletion is the utility of all of these materials within the scope of the claim at issue on a these particular claims were alleged to be interfering whether they were obvious in live to be about the obviousness question is here and my life question is whether something is non obvious because it's just because it's different if the difference has no significance if the difference if the difference is known in the prior art not to have any significance out of thin as an example of that where you know that a certain range elements within that range have no significance wasn't in this case but i would like to turn if i can if i may i thought it was raised to this case in the sense that they're already doing that the way these claims are written they allow deletion of the rebinding so but but but the question of whether there was no other utility was not raised in this case and what utility does know what you're saying i'd like to turn to the issue of jurisdiction because we had no opportunity to do that are you familiar with the wind i am familiar with that  people claiming the same subject matter who has the prior run in i'm in a one thirty five proceeding in front of the patent office one party by definition doesn't have rights the subject an appeal is taken and the patent expires during the pendency of the appeal this court move formally dismisses those cases even though contrary what g i is arguing there are real world consequences and you say dismisses those cases you mean dismissed the appeal of the main dismissed the trial that judge dismissed the appeal and they bake ated the international trade commission voted for us to do that we have to have wouldn't that's right and you can dismiss because you don't have jurisdiction or you can dismiss because the case is moot but we also have jurisdiction to the term interest auction at basic principle of federal jurisdiction but i think that the answer to the statutory issue where they raised one thirty five says unexpired patton's you know different proceeding and i'm having trouble seeing what there's a difference in language between one thirty five and  at trial level or do you need to patent at the appeal level ordinarily jurisdiction will attach at the beginning of the case and jointly and then we have jurisdiction over whatever it is response of the federal coroner to ninety one is to dismiss the case and again this is no different than under two eighty three that the case doesn't become moot if there was drama stiction or case was case doesn't in terms of two nine one and in judge rich held in the opera taste and are two ninety one the merits and jurisdiction are inextricably intertwined the existence of an actual interference to lie at competing against each other judge rich sets with the cynic one on a federal jurisdiction when one of them expired stink wish or cancel whatever the reason then that's the end of it at any stage of the proceeding at any stage of the proceedings and in a in  in the case of occurrence versus chrysler at thirty two federal thirteen forty one and opinion by you judge laurie that was a case involving the windshield wipers that's correct and the issue came up on appeal they wanted an injunction the plaintiff said i want an injunction with during the pendency of the appeal the patent expires and this court said patents expired we don't have equable jurisdiction anymore the appeal was do not have a case that says that i did you raise a latches question we certainly did raise the fact that they had slept on your rights and they in turn said we need to get this done right away they pressed for an expedited remember seeing anything in your appeal that because of the patent status expired and we would go back to texas and they would raise this very same issue in terms of a one zero two one zero three it which leads to my last question what is going on here what is a practical delaware because they thought they could get a favorable judgment at that affirmed use that against in the infringement action in texas but in all of these cases albert engler in alberta communications that's exactly what happens the party is saying i want to have federal jurisdiction or to ninety one get a favorable result and use it in some other part of my dispute but that the only difference between the interference proceeding and use is fence in the  which event happens which which venue it happens and in this case they want the first bite at the apple in delaware and that raised the same issues in texas and then finally with regard to to the issue avoid the impact of the judgment in texas thank you tom yes thank you are we talking here about anything more that the dispute about and you know your honor there is there's differences in the burden of proof for example i mean genetics institute you know we're not talking about anything different or we are talking about something that's not true in a fair it's yes and as i said there's a it's a it's a preponderance so there's a difference there plus genetics institute as the owner of the patent the party being sued in texas is why it's so hard well is the is the cutting edge issue as to the region we just covered in the different that is is that a fact question before us or is is that a question of fact decided by the district texas it's one of two g assertion so it's disclosure and more than just the patent and against the no forms claims so there are different legal issues at stake here playing versus claiming delaware probably  so that seems to be conceded mr reilly got a few seconds left you talked about example five in bonn will branch factor we've read that can't find it i ask mr trotman here to take another look while we're sitting there we can't find what mr riley says is in there something that they invented and it was so important they could have drafted those claims that way but they didn't they provided substitution from amino acid seven forty through the end in the light including all forty want to mino acids and they could have started that it's been you know at the end of a three they could have started the substitution but they didn't and that just goes to prove they had no idea that th know artists inventors were no different than the genetics institute inventors that's what they were trying to do and so this small range difference is really trivial in terms of what was going on here because all they were trying to do was get the