improper indeed the board did not allow how to submit such a motion and made no findings regarding the issue that statement doesn't resolve apple e statement for me i want to know whether dr verifies publication in blood in experimental the worst decision by not considering that second definition was wholly defective and it should be remembered for that they could look at both definitions and not just in europe and the reason why that just because it nowheres the narrow definition of the narrow definition is in the two for four application of hope it is in the appendix want to talk about some of what is there in the state they chose the definition they chose a definition from the two for for right that they took that definition but they never even acknowledged the fact that there was a different definition if several hundred there are two definitions and we choose this one not this other one then that would have been different but that's not what they did they took the narrow one and they never acknowledged that there was a broader definition that they could have killed and that's what we think they should have thought of the broader definition because you could argue the difference in terms of their own you're saying if they'd looked and said here's this here's a here's b we to say instead of just using a there would be a problem that might still be a problem but that's not the problem here so the problem here is there's a broader definition and we explain in here why it would make a difference if you use the broader definition and the only way to fix that is to send it back to the court to have them look at it and reconsider the evidence with the prior definition the and the reason is when you look at the dean's declaration and how the this whole definition of what you have show d terms of that being expressed in cells it's a position of hope that you have to show that two simultaneous detection on a single cell whereas what was done in the dean's experiment is he ha inscription first should get the same result as back to the patentability of these particular claims but that's not what happened here near the border first went through in him allies written descriptions that he said we're going to look at restriction of the first claims using the cations and that's appropriate that's what the law steps so they will set went through that and they said well you don't have written description under that now if they used the correct definition we think they would have been under the definition they use they said you don't have that then they went forward and said nevertheless we're going to look at the no difference in fact and then when they went through and did that they still continued using that definition rather than looking at what claim in a sense it's it doesn't recycle the ninety one percent we're talking here and the patent office decided to take not only the application there will be a copy that the two fifty six application and put it into interference but they brought in the good thirty points and they said ok we're going to judge those that way but with respect to the over thirty seven and the two fifty six cases they looked at and they said well because you asked for an interference we're not going to look at your specification we're going to look at when you look at the whole application these for all succes factors they have a very broad range and they say you know you can vary this you can vary this you can vary this and yet you still get our claims us that's what they say and  rather than repeating the the experiment to the simple one he had done experiments in which he had done things that were with him for but also within the home and he said here are the results and the because those claims in those other cases are were directed to one of the those claims didn't have the structural functional limitations that we have here we have that we are safe the claims are multiple opened that they're not embryonic that they're not germ cells that they can differentiate into very soul types that they've undergone tender forty soul doublings and they recycle the expression of tell it to limericks so they they have all those things and the other point that i want to make your honor is host as you can get it from he and he to shoot why should it not be true that we can get it from any tissue and the last one is just the word goes to a particular passage and they say yes you shall mouse brain liver bone marrow but your show you move on here and here's one passage that shows that mouse doesn't act the same way human does well that's it zero debt but there's a passage the very next sentence says at fourteen days they do at the sick and if you used for the human cells to isolate brain and liver in the same way that she did for the bone marrow you would expect it to work the is directly likable to the written description analysis for one thousand clear both experts acknowledge that your expert testimony on that and it all goes to the predictability of the fact of the field not the arc and so we have a situation where university researcher published articles in the nature of blood some of the top journals there retracted both experts on both sides say this is significant every issue that was raised there's substantial evidence supporting or as a conclusion now with that being said i want to turn back to you the issue about claim construction now again the a possible from the pre buy apologized to the court but let me explain why and it goes back to two reasons one with respect to your comment judge saw i first did copy these claims been where it has to be on one cell elim let me step aside for say i think if you look if you look at the data we don't dispute that the distinction between one cell testing versus a population  testing it doesn't matter in terms of the completion of the board and again perhaps i should make this clear as possible in the record or but what makes a difference with respect to the claim to structure and what the first was arguing was that you have to look at the both experts on both sides acknowledge that they're not equivalent and so just because you show m r a expression doesn't necessarily mean that you get protein especially now that brings us back to whether there's britain claim construction so let's walk through this with a written description of the first clay we look at the host specification and say will powers tell express to find there's nothing in that in the  claim to destruction is able to claim destruction for car express you have to demonstrate expression of the protein so then we go back to the first specification and look at what's disclosed in that specification so either the over thirty seven pa the two fifty six specified additive they're both the same specifications no where in the specification do the inventors ever state that expression of m r in a is the same would respectfully disagree with that premise both from a scientific perspective also based on the evidence in this record because this is exactly what i say dr keating first own expert acknowledged that showing m r i transcripts in a cell is terms of both written description and interference in fact and this is how it's been presented from day one and this is going back to two thousand and five this is how long has this been dogs out first has always argued that th of discussing the case prior art for heresy you have to show that the invention necessarily leads to whatever you conclusion or facet you want to do that furthers obligated to show that the method in the for cells according to the single method disclosed in the first specification they had the data they never presented in this case so what did we do in time when we looked at the method of use we looked at the science we have testimony documents evidence demonstrating that when you don't use the same methods you won't necessarily get the same don't want the world to rely on that but it is set in the court to rely on the fact that the different oxygen level was used yes and consistent testimony by both experts acknowledging that when you change the oxygen level you don't know how that will affect the i'm being generous here when you say they don't know because i also believe that there is evidence saying that with respect to certain markets you know for a fact that protein markers will change specification made by a single method and errantly express the two markers that they now claim in their pack that we're not saying that they didn't invent certain types of cells but what we're saying is that there's no evidence of demonstrate that possession of a population of cells that kobe express these two markers now and i knowledge i think their argument was primarily based on the ninety one percent limitation but i think when you analyze the dean's desperation and you understand that they're not representative of what's in the first specification the actual limitation of the course correction doesn't matter because they haven't demonstrated seventy percent they haven't demonstrated fergie i mean all they had to do was produce the evidence that they already have produced the evidence relating to the sales that they made according to the first method that dr dean's admitted that they had made  and if you look at the blue brief every single argument that they were put forth with respect to the no interference in fact conclusion by the board relies on arguments and evidence presented with respect to you those thirty seven the one eight th and one last quick point in your honor with respect to the one they seemed claims again these are claims that are trying to claim adult human self any type of self and any type of working that ended differentiate into any other type of cell the record is clear that no one has ever even heard of that or even done that today but on top of that we have our expert testimony both in the the first thing i want to address is this idea about whether message is appropriate message are they better for that is appropriate way of detecting expression if you look at appendix page fifty seven this is the sixteenth by application and it specifically says the whole application techniques to detect the molecules of interest can also include quantitative p c r quantitative p c r the t that you can detect message so it that that's why that we would be completely wrong the second thing that i want to say is this whole idea that somehow  fortification of evidence comes into this place it's absolutely false i realize it's probably a play on words but what they're trying to do is throw mud on this and say this there is nothing in that decision that says anything that they considered through and details all of the knowledge we are developing lots and the last thing i want to leave you with yes the host says that none of those six things make a difference with respect to the are getting their s there's no there's no process limitations in their claims and yet now they're saying oh you have to do all of these things to get ourselves that's the case this court should say that so the public decide is on notice of the fact that they have an extremely limited claim and not one that just has to marcus and offered if if it's if their cells could be produced this broadly why wouldn't an experiment the dean's experiment go through and be sufficient as