vien to stand up please and i move did mission of jennifer vien who's a member of the barn is in good standing with the highest courts of the commonwealth virginia and the district of columbia i have knowledge of are preventable and i'm satisfied that cheap possesses the necessary qualifications i would just like to very briefly had in support of my motion those are kind of the formal official words that have to be spoken just to put it teeny bit of gloss on it i would say that jen is been an excellent clerk it's been a delight this year to hebron chambers and i'm know that  but i want to talk about them together and that's because there are so many similarities and that includes that one of them speaks turkish and the other speaks arabic they both speak fluent fr christopher mullins to play was a member of the bar and in good standing with the highest court of the gist of the commonwealth of virginia and the district of columbia i have knowledge of his credentials and i'm satisfied that thank you so much art would not have been motivated to improve upon the construct and kraus which was an antibody fragment attached to the cd twenty eight signalling sequence that she disclosed and and making that into brief argument your honor i believe that so long fully addressed the teaching away argument in their brief in their response brief and then i had the opportunity to ask or for additional briefing if they thought they needed additional briefing on that of the the issue was properly before the court if i can explain the reason that we did not believe that the teaching away being applied to rationale won i think that's relevant here because i think at at a very minimum there was an  doesn't that indicate that it's teaching way finding applies to all rationales underground i don't think they ever said that they were applying the teaching away finding to rational one judge walker what they said was in  their direction it was very brief their if explanation for their decision was very very fun congressional law but they they said that it had not distinguished expressly between the advantages process cd twenty eight sequence versus finesse or explain why one of the ordinary is an additional related reason that further supports this conclusion well there your honor they do they refer to ground one big round want to compass the three rationales they didn't specifically say that they're that they're that they applying that finding with regard to the first rationale and and if i could take a moment to explain all this all best amount all all rationales includes the first one ground wanted to do it all rational that's correct but i think there's an important distinction between the two rationales that or did not did not recognize and is the reason that we had understood that the teaching away finding was was not focused on on rational ones post a rationale to rational to some extent was it was a more difficult showing that at a presented for itself which was funny had a three part car that was disclosed and the argument there was that a person of skill in the art would look at that and say this isn't good enough there is something that could be made better about it and what can be made better is you can take out the c d twenty eight sequence if any uses and replace it when in there with another one and that's where the board was talking about the issues of superiority and teaching away and why someone would be persuaded from doing that rational one was was a different rationale which which started from krauss were kraus was doing testing to show that she could she could through her construct obtain a vibrant coast because of the cells are activated by primary signal but don't get the secondary signal they die she tested each of the three of these to see if when the cd twenty in sequence instead of directly binding to its natural league and was instead attached to and antibody fragment that bound to a particular antigen whether she could promote the same and provoke the same healthy response that you would get from the direct binding and she found that she found that in he so cross was a very very important reference for one of skill in the art because it showed that the sequence that she used worked beautifully there's no suggestion that there's anything wrong with that sequence and for that rationale the only issue was whether one would then be motivated to then take what she had done which was a sequence that worked perfectly well there's no suggestion and then there's any of her reference if there's anything wrong with the sequence and would think to then take any suggestion that you can not only take a single signalling domain but you can take both the primary and the secondary signalling domains put them into a single chain attached to a variable fragment of an antibody and create a three part at the time of the invention would not have thought that that was an option that would work but the board in its teaching way fine it says and i'm quoting the prior fails to provide a motivation to include the n y p p y teaching with finding itself if the court were to consider the merits our understanding was that there there was a distinction in the rationales that was relevant to whether teaching away was was something that the board was relying on or not would not require the motivation be the best option only that it be a suitable option from which the prior art does not teach away for purposes of the second rationale we clearly have the obligation to show that someone would have thought to change things to and that was that was an either or proposition for the second rationale you had to decide you already had a sequence that was taught by finney there had to be motivation for somebody to say that's not good enough i need something else and for that and it really is a matter of you look at the two side by side and what would someone of skill in your think was better and that's where we thought the teaching away finding when but it's a little bit different and your honor i don't believe this is just semantics i think there's a difference with rationale on which is rational one is if you start with with krauss and process what i've done works terrifically it's great and there's nothing in krauss to suggest there's anything wrong with it then the question there was simply would someone have thought to to take this and then to try to add the primer signal and make this into a three car trip our car and ford for that purpose there was no suggestion that there was anything that would preclude someone from thinking that the the cross sequence would work in that for that purpose it's not either or for that purpose e d twenty eight sequence she used it doesn't have to when i had had bad up against phoenix which is the support it the same concern that the board discussed in the teaching away section why would not that be obviously relevant to the cross is good maybe we can make it great the rationale doing that is maybe we can make it even better in this way if this way carries a risk of you know friendly fire  your honor are our understanding of the board's decision was that what the board was saying when it was when i was discussing the teaching away it was that someone would be motivated not to have replaced or substituted the city twenty eight six months what with the  with there are two reasons one is that the board will rely almost entirely upon post invention day priority priority there were only two references that involve cd twenty eight at all and both of them were several years after the two thousand and two to claim date of the invention the only prior art reference at the borderline was keep on keep on did not about cd twenty eight it didn't involve extracellular sequences it just involves trans membrane reference does not involve city twenty eight and the porch and or her reference and the call up reference neither of them say that there actually is a problem with with finding with this extra solar dimming they postulate there's possibility that there might be a course and or actually goes on to say we thought there might be a problem we weren't sure because you need a particular folding of three dimensional folding of the city twenty eight sequence to have a soft target by nick we tested it and it wasn't there so of course it over later it shows that there is no such indication of the error that the board made and its teaching way finding is there was evidence krauss had done a test to see if she would get off target and this is discussed at appendix seven sixty six three sixty nine and twelve thirty three twelve thirty three so she tested on the chip had it side by side in a culture where she did have the seated twenty eight with the binding and yet with the antibody a reporter perceptor and if there had been this off target binding she would have seen it because in resulted from this off target binding that the board topped about but as shown in the year two of her reference there was no gun there was no aisle to production or presentation over and above that of a control that had no under it could be dissent depending on the reasoning of this court and the other issues so there is this extensive factual record two hundred fifty six exhibit seven depositions seven declarations and other materials and the board made findings of fact can i can guess what what is the evidence from the prior art about the worry of off target fucking way you had this sequence sticking out into the extracellular domi first there was a clash among the expert dr proctor first one kettering and two experts what the board found and credited dr brocker with was a well reasoned opinion based on references here the references there's the capon reference that's the one that i think your friend said i the sole that so one that predates the priority that he said that but there were other references of great importance that were in the prior art there is the carriage wreck reference and the greenfield reference and what those two references stood for is that it was well known in the are that my puppy would bind to naturally occurring lichens in perfectly healthy bind to itself and importantly might bind to which friendly soldiers its neighboring t cells and kill those neighboring t cells so that's a very very important skill in the r would have understood that that if it affiliated with if it bound to be seven one b seven two then that would of course be this obvious problem and nobody said it specifically but everybody knew it yes is at the end basically yes but  we also have the concern expressed in tape and then dr brocker is also looking to art that comes after the payment date of the one nine hundred patent so let me address an argument that was first made in the repl but the other side points to a board decision so it's not a federal circuit decision trying to argue you can't look to anything post the filing day so i'd like to cite a federal circuit decision it's monarch meeting it's one thirty nine f third eight seventy seven and the roman pages start at eighty eight for that involves a discussion of a reference that is not prior art and then this court goes on to discuss skepticism and whether that reference can be considered and then specifically says that teaching  away is a certain brand of skepticism so it's giving credit to reference that it's not prior arc it can i ask is is there something one version of the narrative from the other side and maybe this i  may be unfairly characterizing it is that before the priority date this problem wasn't really recognised it came to be recognised after what must changed on that narrative to create a recognition that might not have previously existed and if the answer if your answer is nothing then i guess i'm curious yes yes there were there was no trigger there was no reason for persons of skill in the art or extraordinary skill in the art to say by the way we know that the seven one and the seventy two naturally occur they knew that there was no reason that stablished by the references i've already decided that my puppy would bind to them and that of course would create a problem let me if i took it as you i mean yes if this case i think probably turns quite heavily on on some specifics so can you address the portion of his argument as i understand it that says there's something actually in krauss and experiment that shows by the absence of certain sorts of results that this really would not have been a problem date and since krauss is prior art there's something in the prior art that actually suggests that you shouldn't be worried about that right so this is a reference to table two in craps first i don't think a word can i do you happen to have the page where i can look at th me just give the big picture let's remember what craps is doing it's not redirecting a t cell to a new human specified target that's what finney does crosses leaving signal one alone it's leaving the t cell to identify for itself it's park crouse is now only looking at signal two and asking how can we make signal to better so the way it works for and normal peace out with no changes to it simply want to jennifer as the target binds to the target and then there's a separate second binding a signal to that circumstance and in craps there is no safety concern because the safety concern for a kind merrick t c r with the single binding a vent is that inside be human body and that's what she's looking at she is not studying whether the my puppy motif in her signal to there is this clash on the are on the other side i think the key passages that the second half of appendix twenty three and the board finds that dr atkins it mid it then in dodge n s c t c d twenty eight is in this mix that's at the bottom of that page and then top of the following page the board says dr atkins also admit that this could cause the signaling there's a quote to the effect of it can but it's not proven that i think when an expert is trying to speak for one side or the other amounts to an admission so kraus was not trying to measure the binding it's all made up a lawyer argument and second there are no controls in crowds to measure the binding of my puppy so i just want to give the overall concept because i think it's very helpful in support of the board's finding let's start with thinning phinney has human beings that say we're going to change second what we're going to do is not have two separate binding of vents but a single mining of that and that's what gives rise to the safety concern because if that receptor might natural ability to identify a specific antigen target and number two how do we improve signal number two only and therefore there's no safety concern this is safety is provided by signal one you have to have both to trigger the robust response of the t cells so it doesn't really matter whether the argument is start with krauss start with finney combine the two but the board specifically found that there wasn't a motivation to start with krauss and in addition found there was a teaching away no matter how you mixed in match rationales one two and three and here's the problem known said because that could buy to be seven one the seven to naturally occurring likens it can bind to itself it could bind to its fellow soldiers that look exactly like and kill those t cells as well as other cells not intended to be targets those were factual findings that were well supported if there were no other questions stopped just just very quickly around to show that the board did not understand the experiment and cross on appendix twenty four the board says that there is an dodgin a cd twenty eight that could find to be seven on the neighboring t cell and concludes it is impossible to discern from krauss whether the coast to military signaling is from an dodgin a city twenty eight alone or both and dodging the city twenty eight and the medieval from the construct what they're suggesting there is if she found co your story signalling you wouldn't be able to tell what the binding was that caused it that's a mis understanding of the data and at the pentagon seven sixty seven in the expert declaration it's reflected there that the