oh and appealed ten seventy nine from two thousand and eight misapplication of this court's written description precedent to the largely undisputed facts in this case the second was a failure to fully understand the claimed invention for these reasons the board's decision should be reverse that claims certain antibodies in a body's or protein structures yes they are of course the claim overalls a method claim but the part in question is not to a method it's to anybody those antibodies need to be described in order to survive the requirements of section one two zero absolutely or ok so then why do you say that the part is the method for treating a patient with no five or so comer and we agreed you know the board understood that part correctly the second part goes to the heart of the invention in this is the part that dr lanza said meant that the thing it is a thing but according to the second part of claim ninety two it is a thing that is specifically generated to a specific person's marrow barbara starr coma tumor sure and the way that this purpose of the test is to assure actual possession of the word inventor of the claimed invention but the test itself requires a description of structure if the claim limitation in issue is drawn to structure so we're use or any description of the structure of these antibodies a couple of places here on our first doctor lyme though as you mentioned he made maturity of the science you you can infer what the structure of the in a body uses but the argument of the padlocks here seems to be that there is no this peepin whatever of the structure of the animal there's no description and no full characterization rather of the antigen merely molecular weight which falls far short they say of full characterization of the injured so you have two choices but there see you didn't make it on either route well i think that the written description test is somewhat less rigid then the patent office that's forced so also described a way to satisfy the written description requirement where there is function in correlation with a well characterized disclosed or known way that correlates the narrow genus of antibodies that will be used in the claim treatment method has adequate written description and based on this narrow genus and the combination of the structure function correlation between antibodies and an a believe it's example sixteen of the written description guidelines which the p t o includes and it's a den them to it's brief those talk about an example where there is written description requirement  specification he showed it also by means of characterization of this image and that the antibody specifically bound that patient's timur he also showed that anybody did not bind  nonspecific tissues so in addition to molecular weight he did also in fact characterize it binding properties but that's functional lose their structure horribly ended any more than structure recognized antibodies have a well defined structure that antibodies all had this y shape which is well defined it would that's not the part that counts the bird to counts as the little part the bombs the fact that the rest of the structures uniform well known and changing doesn't help most if the mechanism that causes the binding affect their lives yes but that is precisely the point of the invention that variable region may differ if you have one patient practicing the method versus another patient practicing the method but that is the precise point of the invention to render that no one is questioning the cleverness or of the potential value of the invention the only question is whether the specification adequately that you were mentioning if the question is more for the a bit that would that would win the case for you if this claim was limited to melanie brown except your honor that it is represent not even to treating all neural fibers or coma patients with the same antibody rather it is to treating a specific patient with an antibody to that specific tumor and with that makes that claim much more narrow than what you that is not in dispute the genus is narrow it is to that one particular patient and the p t o has not shown with substantial evidence otherwise and there's this built in structure function relationship that harnesses the power of hybrid oma technology to predictably produce monoclonal antibodies that will necessarily buying to a specific patient's tumor requiring dr alonzo to characterize in detail every energy in an every neural fibers are common tumor would create a legal and possibility for satisfying the written description requirement in this case as the board noted  justify it seems you have to list every possible species no one of ever suggested such an extreme to the questions whether by listing ones b c you can get the genes and normally in most cases the answer is known that you would need some range or several representative species in order to justify the genus so the question why should that requirement apply here in such a way as to block  in this case the board recognize that a nerve fibers are common energy and across all patients did not exist which was precisely why the invention raise and antibodies specific to that very patient instead  know by the way how many different energy appear on different tumors of different patients who have this particular type of cancer is it in the tens is it in the hundreds it is in the thousands or tens of do we have any treated in the method according to claim ninety two but the but the claim would cover all patients who have this type of cancer and not this kind of their thank you so long your honor as that patient was treated with  describes only one answer body and that's where it really comes in to fill the gap in read a book that the nineteen pages in the specification would equally get you to any satisfied by other means than structure so that like describing the molecule correct aaron or written description there are multiple ways to satisfy the written description in curry one way is the representative or form so they sent me bringing it up before the square that's highly disputed and we'll have to sort that out obviously if it's waived we don't normally entertain it so i don't think you need to pursue that further we just have to look more closely at the briefing in front of the board to figure out whether we think it was adequately read can so let's go to the merits on not to the extent it is before this court to satisfy the function structure task this court has explained and we have a case in point no l v letterman that talks about an relationship the five classes of the antibodies known in the art all the information known about antibodies to establish written description well here we don't have a characterization of the common structural features or all of the antigens to which  then maybe the result you request is the only possible we saw but perhaps mr johnson is suggesting that given than maturity  art here but that's too rigid a requirement i respectfully disagree because in this case we have absolutely no information about common structural features  true in a way but she seems to be arguing that because the complementarity of the prime being sites on the end it bodies and energy ends is an exact one for one relationship that molecule were that that sounds like you're saying is a claim indefinite problem and that would be a separate basis of invalidity or unpadded ability but but it were the only basis in the case before us  the as it comes here is a failure written description not claim indefiniteness or over red or one on one or some other come from or so then the issue seems to be well exactly what is the test and you you have your version of the justifies that by saying the whole point of the written description requirement is to be able to be confident that the inventor actually invented what's claim and she says here that's plainly shown even though there isn't any explicit detail about structure so she's in fact saying in my kind of case structural description shouldn't be required because it's not needed to show possession by the inventor back at the time of the application of the full scope of the claim ist reffed now if she's right that it meets the possession test what more should be demanded of the written applicants and ask for some history he's explained that the antibodies that are specific for melanie brown may work to treat somebody else who just coincidentally ends up having the same type of  at the representative species test for written description a failure of the function structure tast advocate has nothing left they have not adequately described their invention and substantial evidence support antibodies that would work in this claim to match from all of the other bot antibodies that exist in nature as you pointed out that generic rashi structure of an antibiotic won't do it because all in a bodies exist in nature have rewrite the whole point of the invention was to answer that question why we said by saying we know what the right anybody is if we produce it from the cell of the cancer of the patient in question sounds like if your version of the written description requirement is is accurate then the board has to be affirmed so i guess the issue comes down to whether there's any wiggle room left or miss johnson's version of the written description test not as a matter of policy it tell me again why her version shouldn't be allowed  antibodies are well except that if you could argue that it describes any bodies the binding portions of which will match but we have no idea what those binding you know it seems like if if i'm practicing the method that is the subject of the application if they if i  but that goes back to the function week if we look at rochester rochester explains there has to be written description support for each and every limitation of the claim the monoclonal antibodies are a limitation of this claim and we must have written description support program the facts here are very very similar to those in rochester and when rochester apply this course it come to that inclusion there is just like there was in rochester a lack of written description support for the compounds that minutes there's just a few points that i would like to make in response to his goggles argument the first is she's claiming that the p t o is claiming that this case is merely a repeat of rochester in the area of antibiotic technology between the structure of any of these non steroidal compounds there could be mall molecules proteins the diverse array the genus in rochester was much larger than the genus here and the second point is that the inventors did not possess a single one they did not possess a single embodiment so here doctors alonzo's work was not hypothetical and that was something that the rochester court focused on he  invention he conceived of the met in he reduced it to practice and the structure function relationship between the class of antibodies giving team is that this genus is much much narrower than the genus  rochester the second point i'd like to make goes to the policy question that you brought up and literally another written description case that the p t o relies on  forth this policy of rewarding people who actually carry out inventions not those that merely have a wish or a plan for doing so this is to prevent suppose that it mentors from preempting the future but here antibodies directed to his own chance or in the other types of cancer besides neuro fibrosarcoma i am not aware i just don't know of whether other people other companies are currently practicing this method in general and on cancer or specifically on nerve fibers are common patients i just don't know the answer to that question the other case that fried up significantly by the board is no well and again it's important to realise that in no well the claim was to an antibody that was defined only by its ability to bind to a specific antigen and that is not the case here as we said this is a method used for treating using the customized antibodies and if no well required that all antibodies cheeses down by no well and were brown by end zone were brown by only two other cases that you've both been mentioning so in view of that what leeway do we have even if we agreed with you in some broad philosophical or policy or economic clearly distinguishable for the reasons that i just mentioned in those in the brief this is not an exact repeat of no well rochester lily by any stretch well maybe not and maybe they house for written description is whether the inventor had possession of the claimed invention and we submit that dr alonzo did indeed based on the work that he did in the fact that the genus is narrow and the built in