this morning is number thirteen days fourteen zero seven in rave rock institute is that natural phenomena exception to the subject that in other words is dolly a natural create a genetically identical clone from a donor mammal using the disclose cloning method and the clone wording differ in certain phenotypic characteristics rosalyn would undoubtedly dispute any defense of non clone clone to claw i think that i guess the question becomes with respect to the infringement is does the fault in the play is that a clone of you know typical notwithstanding well i think that there will generation phenotypically and we've put in evidence to the extent that for example any identical twins is perhaps a nice example the irises of identical twins are different because the phenotypic differences the irises will always be different that their fingerprints all over the different again these are phenotypic prophecies that occur during development there are always going to be there and what you're saying is despite those differences any cloned animal  put so much emphasis on the need to take differences in your argument and don't well i think we're talking about one thing one thing we're talking about is whether or not it falls within or outside of one of one the other question is infringement yes infringement is it is a totally different question i think doesn't need to be handled under what one will but in terms of anticipation obviousness how can you distinguish or clone the panels from the prior art based on phenotypic differences which aren't specified in the client well i guess i think there's there are there are a number of differences that come out of the plans leading phenotypic differences aside there's the fact that the claims require when you have differences no matter what those differences are the question is are those differences obvious differences she has different phenotypic differences from what would one would one she'd necessary well again it depends on the client i think you have to look at on a claim by claim basis and and like and basis how do you claim one sheet versus another sheet perhaps you can the pot but the part of the buyer disclosures didn't say anything about differences are in play again i think that it's an inherent process inherent part of what the claim says the claim requires too and there has to be a donor animal and there has to be a clone well that's the whole point of it when common it is the combination of those two things are it's the combination of the time delay certainly every child is younger than its parent but every child is different much different than their parents as i'm sure all of you perhaps if that situation is never set up either in nature or in the prior are now in the prior art the closest thing again i think that you can imagine is identical twins but those those don't have that time difference they have phenotypic differences from each other but they don't have the time difference so one of those two identical twins are on their genetic information is gone forever so twins are fertilization clinics and one is brought to term and the other is kept probes what's the difference and then and then later fertilized and brought to birth what's the difference what's the difference between that and a flaw and you have your two identical animals in it two different times well i think that you would have to actually that's something that hasn't been done yet and you have to start with two embryos that are identical with each other it's not simply do in vitro fertilization and serve the same level you'd actually have to split those embryos or they split naturally or they split naturally again that's not something that had been done previously i think that that's something that hadn't been done today the ability to actually split an embryo and do that kind of thing and freeze it and bring it back after a time again i think that that's not something that's the being used against insiders prior art or something that it occurs in nature or you are you familiar with the lamps what the case says as i understand it is that it can be an infringement to copy something which is self not patent protected b so under that case how how can it be infringement for somebody to copy a sheep that's living in a barnyard the original sheep is protected by a pat it's certainly a question i haven't thought about in terms of infringement again but i don't think that infringement is in front of the court here today i think the question is whether or not we're talking about subject matter or anticipation for opera we're talking about whether you can have a valid pat asserting a frenchman on the product rather i think certainly product claim to have different fruits in terms of what needs to be proved and i think that's one of the benefits of having competition claims as opposed to methods you don't have doesn't matter how it was made what you have  competition and i think that that's the important piece of this for a cause they like to have the composition claims i think the that in terms of copying something why or why not something would be an infringement i think that it depend upon whether the copy is it is identical to or not identical to what you started i think in this case the copy we're talking about animals were talking about and i think of the animal is different mammals particularly it's different than plants plants make copies of themselves naturally that are again genetically identical i think all of us probably at one time think that you can cut off a branch from a tree or bush put it into water it's brought troops and you've got another plan identical genetically to the parent this is not something that happens naturally with respect to animals which is part of the m s m has passed the bill for the question is whether the was that the reason that this is patently distinct in title to patent ability is by virtue of phenotypic differences that exist because no two could be the same but then you're saying that someone else came along and cloned either the clone or the parent it would nonetheless infringe despite the fact that it would have the exact same types of phenotypic differences that you claim distinguish you well they would have the time to like which is the important topic difference i don't understand that argument makes no sense whatsoever to me i actually would love to have you tell me why your case has argued is not frivolous in light of myri the other supreme court precedent which is clearly why didn't you just dismiss this why didn't you pull it why are you here today again i think that there is no reason under the current statute as to why not no reason did you read distinction i think that is the important distinction i think that that is the convention the invention is the ability to have same thing at a later time but the supreme court made it clear in myriad to dennet genetic identical lety is off the table the only reason and they were very clear the c d n a was allowed as it wasn't genetically identical and you've admitted that these two clones are genetically identical so i don't see how you still are thinking i think you have to look at what the difference is as well between what happens with  trying to claim for example going out into the wild finding a cow and putting it into the me that would be very isolating it out i thought i had to come full circle on this but you would agree with they are not new they are copies so under the statute under one one they do not mean the statutory requirements of the new second they fall into the judicial exception for natural phenomenon because they are not markedly different from naturally occurring stance in infringement though they would in their argument as to why their claims are eligible and secondly a copy is problematic because it's copying of the court the court mariya this is quite clear about what we're going to do with this case but here's my question to you what explain to me i understand phenotypic differences aren't these just environmental i mean these two they're not genetic i don't even technically really understand them i mean they're just environmental like let me give you an example suppose i wanted to reproduce you know a plant or something i mean i don't know if it's i take the same that what about a situation where they have realized that not just cloning an animal but they actually realized and if you culture the clone in a certain environment it will cause consistently produce certain characteristics to follow me would that animal then be patentable subject matter because you have now not only copy reject exact d n a but then manufactured an environment in which to raise it such that it has predefined characteristics of your choosing with that you're saying as almost an artifact of the process it's kind of like instead of genetically engineering if they have blue eyes they realize this is put into a certain kind of environment in the culturing it is going to have blue eyes every time so it's kind of like genetic engineering sort of except it isn't the genetic part that causes the the represent or medicine station of the physical characteristic up with something that's markedly different from what occurs well but then it would be really markedly different like some of the sheep by virtue of the cloning process might end up with randomly blind squirrel finds it up once in a while kind of thing you know and so maybe they are found in nature not consistently every time but you know so i don't know if that represents itself in nature once or twice or three times is that enough then presented later fact ability when you figure out how to make it manifest if you home if you took two clones and put them in the same uterus so that they were treated this identical twins they would develop with different gifts they have the same exact environment developmental environment but but they develop different irises for example iris patterns some standard phenotypes to distinguish animals would they not say they quite possibly could have differences but that is again could be because there be some slight like yours the only left point that i'd like to touch on this is what does myriad really stand for and i think my reading myriad is that mary is the difference between creation and discovery the things that are simply ever exist in nature prior to this discovery doesn't really add mysteries to the proposition that if you copy d n a that exists in nature it's not patentable i think it depends on the situation that you put that into i think that if you copy exactly the d n a the nature and you put it into a plasma vector that would be patentable because you have taken it and put it into a new context you changed it somewhat a little bit going to be there are a matter of what you do and i think really more importantly is the fourth dimension which is a little hard to talk about in terms of pet law but something exists as a late time with animals that's a very different concept it's not