court the jury made the factual finding that the asserted claims are anticipated by prior uses of native interferon beta and that finding is supported by substantial evidence including dr lo fifty one and biogen itself introduced evidence that and i'm quoting again the amino acid sequence of reba which is all recombinant product is identical to that of natural biver glass derive effective amount no your honor for two reasons st the claim refers to a poly peptide in the patent defined polypeptide as the sequence and the jury was instructed on the sequence the jury was never instructed on three dimensional structures like sugars carbohydrates and biogen never requested such a structure none of that was part of the into space analysis before the jury and this is of a jury finding of fact reviewed for special of it so they were able as art but nd and more importantly their puting effectiveness or biological activity requires a three dimensional structure not carbohydrate groups but a three dimensional structure and the evidence on three dimensional structure is very clear in this appendix fifty thousand five hundred and forty one quote the two protein molecules have the same three dimensional structure so that even if the question were the protein and not the public peptide they have the same three dimensional strong so there's no specific three dimensional structure at issue here they all have the same they're all interferon beta proteins there is a fundamental mischaracterization by my friends on the other side that somehow there is a difference within these populations that is false polypeptides of these of this sequence are interferon beta if you don't have the sequence it is not interfering data and by the way the patentee here chose to define his claims doctor fears by the poly peptide because two reasons he did not have possession of the complete protein he never expressed a complete protein or characteristically protein and judge newman specifically as to the carbohydrate groups dr fears work only in equal light bacteria which do not like oscillate b do not create carbohydrate group so he never had possession of a carbohydrate group he never disclosed or unable to carbohydrate group and  certainly did not claim a carbohydrate so that this this whole argument about carbohydrate structures in the district court latched on after the verdict was not submitted to the jury is not part of the verdict is irrelevant to the case is not in the claims and is contrary to the way the applicant did that in fact there of infringement case they didn't prove carbohydrate structures they didn't prove three dimensional structure they proved a linear sequence of amino acids and there's a difference here by the way between and therefore the carbohydrate groups were important this patent does not claim a glycoprotein for the simple reason the doctor for years was never in possession of a glycoprotein he never even saw it like a protein and he could not have claimed it like a protein and therefore the carbohydrate groups our the defendant's inability theories he had three opinions one of which was soley on anticipation and and it was soley that these two molecules are different because of the carbohydrate structures the jury heard dr garcia testify about that over and over again and in closing argument this is what my agent told the jury they had to decide if we want to get into the facts into the facts dr garcia explained that it's wrong for this legal concept of anticipation the natural human interferon would have to be exactly the same as recombinant and it's not that in fact this but his entire argument on it is patient and the jury rejected that the jury found that they are exactly the say and to come back to where i started you know this is a substantial evidence case this is a jury but it wasn't just food that there were differences that's the differences were not in the p scientific examination of this question asked is are these two products identical that the interphone study went through thirteen structural measures and seven functional measures and found that the proteins are identical on every to yes or no i think that was undisputed that is absolutely undisputed and so the only question is is there a difference in the in the in the carbohydrate structure which is not claimed and was not presented to the jury in the jury instructions but even answer that question on the science which i submit is not before the court given the jury verdict we have a finding of fact here but if we were to talk about that the evidence on that provided structures is the populations are overlapping there's more than eighty percent to the carbohydrate structure of the recombinant because there's eighty percent population overlap and so when they talk about the differences your honor it only is that very small port of it is a live lamed they say they're the same time by brits they are the same carbohydrates yes you extension thirty one of the uniforms study the bite and tenor eagle eye can chain which is the carbohydrate structure is quote i did tickle in its structure so that the trial that it made it invented no method of treatment so that the use was no this is an old use of a product you know by jim's lead expert was asked there's no new information about treatment in the patent we agree limitation which brings us to how we got here right let's remember what happened let's rewind the tape move i mean what baffles me in this case is how the jury could have found anticipation but not obvious this way and it seemed like there was a method of time and there are a lot of issues in this case and i just ask you about the jury instruction on contributory infringement and not allowing them to consider reasonable belief that not infringed yes you're right and you just address surely the point is very simple the kamel court was report made clear that the good faith belief in an infringement is a defense to both contributory and inducement which is obvious because they both have the knowledge requirement this report said that in so many words  we asked for that instruction to be given in the district court refused and the prejudice was enormous mr groombridge my friend who stood up in closing argument and said what's in their heads doesn't matter they remember their burden of proof was to show that we knew that  product acts on m s through an immuno modulation and he said what was in our heads doesn't matter and that your instruction didn't give the jury any way to evaluate was in our heads because the evidence again was undisputed that we did not know and we do not know to this day how it works and if we looking at and the question i think was all about biological activity now with respect i like to respond to what my good friend mr perry has said about identity of molecules the evidence here the only evidence is that the structures that are in the native product and the sugar structures structures that are in the recombinant product and they are they are different they're not the same molecules not one of them is the same and the reason that mr perry can say that language saying that they're identical in his response what to the question was i wouldn't i would not call them identical i would call them very similar and that is the entire point here all of this and by the way the kagawa reference that fi that now i think maybe perhaps as a legal dispute i take the appellant's premise here to be that as a matter of looking at the claims their argument is well even if there's a are a difference in these carbohydrate or sugar and why do i say that the question with a product claim is whether the product is new iraq has it in the prior art regardless of how it be made but with a method claim the question is was this series of actions performed in the and as the district court found a claim construction the source limitation what it need not be performed by the direct infringer by the person as minister in the druck does have to be performed by someone somewhere at some time and therefore in ou that the same i think you are in that situation if one were to conclude that the structure of the carbohydrates is irrelevant and if one were to conclude that biogen is wrong and this idea that it requires people to satisfy the source limitation then that result would would flock you know and tell me why that's the wrong conclusion well so i think in the st point is that the source limitation here is a meaningful limitation in this claim i don't believe there's any dispute on that but certainly that was what the district court found and therefore it requires that the read the the recombine and creation of the molecule have been done just not by the person who's actually then going to administer it to the  patient in the thereof and if the court to accept view on that point then that is the end of the story we don't need to get into any of the questions or are any of the other questions because it's conceded that would be you know anticipation and the what i would also like to say though just before i leave this your honor that to this point if it's not claimed the sugar structures on planes that's wrong if you apply product by process law which of course  between contributory infringement and inducement and that issue in a has not been squarely addressed we think either by this court or the supreme court and the question then if we look back at that we know that they have central requirements we know from carmel that those requirements are similar that's the word the common uses but not the same therefore and if we look at the origin of contributory infringement as for example judge rich laid else that was going to be inducement and the reason that it existed was because if certain circumstances were met intent to infringe and that means intent to infringe could be presumed and that is what the supreme court said in  it would render contributory infringement mia surplusage because it would say that the only reason why contributory infringement exists in the stack is for this to to presume intent to find other nevertheless have to prove the same intent then there's no reason for contributory infringement even to be there it's simply inducement plus some extra requirements right and so that can't be the right answer and in fact we think there is guidance as the district court found in section two  not that why is that relevant to their old leave reasonable belief of whether they're infringing or not and i think i would just direct the court to the gross to case what i would say runner is that that's exactly why contributory infringement exists in the circumstance where you know of the patent you know of the infringement and we could have a debate about what no no if the infringement means but it's less than intending for you and you make a product that has no use other than to infringe the patent intent to sleep isn't that the whole point here is that that this is their view of how this method works the product can be used in a way that doesn't infringe that method it turns out if we accept everything else they're wrong but their claim construction of this method meant that their sale of this product or you know offering it to die under your stuff didn't in french the method even though the has no use of them to infringe and you know again i think maybe we're talking past each other and this is weird because they have a claim construction theory which i think frankly is not correct but if they reasonably believe that this incorporated the product by process and all that kind of stuff and that that was all part of that method then their sale of interferer doesn't necessarily mean printed out when they didn't make it or they didn't make it in this country or all that why is that they have done it you know the reason why they are saying they would not infringe it because they did it some of it they say before the patent issued and they make the product in another country but they certainly do it there's no dispute that they do it the argument is you know that i don't do it within the just i don't understand why they weren't allowed to present that to the jury even if the claim constructive ultimately turned out to be cried they did present it to the jury they presented it to the jury in the bill they were allowed to present their argument that their belief and that instructions actually given with no objection in this case that's the end of the appeal the verdict has to be reinstated the jury was only instructed on public peptides mr gruber it is entire argument was based on sugar groups carbohydrates there is no instruction on sugar groups or carbohydrates fired and did not request one and the jury in the district court did not give one that was not presented to the jury in this case they are asking for is something that they didn't ask the jury for if they had asked the jury to consider it the jury had plenty of evidence let me give you just one expert didn't agree they're paid expert brought your for that purpose but the jury didn't have to believe him and so what was actually presented to the jury to that was this linda your question about the claims the claim is to a poly peptide they never saw a claim construction that said it included the sugar group for good reason dr fears did not know who about the sugar groups they were not in his experiments they were not the could not have been claim because he was not in possession of the invention he never characterized the complete protein they could not have got th words therapeutically effective in the claim of no consequence of course there are consequences says that when you put this in the substance the patni amino acid sequence in the body it has to change the human functioning that's all that their particular effect of amount means in any those in that implicate the entire three dimensional structure is the sugars not the sugars or honored fact let's remember what dr fears his experiment was he set out to prove that he could force an equal i sell a bacterium to produce this polypeptide with no gleick consolation and still have a three dimensional structure and biological activity in fact that's what they now say was the invention has nothing to do with like oscillation because it was not like oscillated so for them now to say that the point of novelty  when his so called invention was proving that an unlikely isolated molecule had biological activity is how they presented their own claim construction it never would have survived it also by the way if that's really their argument come up for the  bacteria that do not like oscillate and all of the disclosure there's thirty pages of the specification discloses unglued casa lated polypeptides that's why the jury was instructed on the poly peptide and the judge and what you heard in fifteen minutes of argument was didn't object to the verdict question the verdict question was to was native anticipate they can't give that to the jury and then turn around say as a matter of law a native can't anticipate they had they accepted engine for purpose of the trial and then pulled out this free option to try to win later that's an acceptable as a matter of civil procedure trial practice you don't get to do that and even if you know and then it's not a proper process them it doesn't matter this is a principle of novelty this is a principle that says if i claim a molecule whether it's from ohio or from a hamster or from anywhere else that source limitation matters only if it effects the chemical structure of the molecule the structural and functional characteristics and we proved over and over and over and over again that these things are identical i have to come back t uniform study the conclusion of which recombinant interferon is identical to human interferon i mean that's the only thing we need to know to sustain this jury verdict as the way it was actually submitted to the jury in this case this is a jury verdict we're not sitting