well first for what is likely the most enjoyable part of the morning i turn to the judge more for a motion i would like to move the admission then my locker they send up or i move the admission  stein who is a member of the bar and is in good standing with the highest court of new york i have knowledge of her credentials i'm satisfied she possesses the necessary qualifications but has been my clerk for more than  year she came to me from a firm high many years because very is the ph d in chemistry and she has been a joy to work with for me and all of her co clerks as well as brought a wealth of knowledge and experience my chambers so full steps of the mail alice analysis turning first a step wanting this pattern is fundamentally different from the ones that issued mayo and second on those patents were directed to a phenomenon occurring in nature or that the inventor has  observed and they claim processes to detect the naturally occurring phenomena and to explain the consequences of that but i think among the other things that your friend on the other side would say is this capacity for the selves to survive the second creasing is really an inherent property and therefore it falls under male music yet except drug law is that wrong i think that proves too much your honor because anything that non natural human treatment of naturally occurring objects is according to a natural law by definition when iron ore is placed in a high temperature and carbon is and it still is produced that's all as a result of natural laws but no one would say that that's not a patentable process so i think there's a fundamental difference between a patent that's directed to observing something that occurs in nature and one that is directed to not detecting something that occurs naturally but view with the supreme court think that would have made well i think there are two there are two things that happen here one is subjecting it to a non natural process the second is that the product is something that doesn't occur in nature  here the frozen collection of multiple pulled cells that has a longer shelf life and that is useful so i think to some extent the increase under step one of the step to merge but i think our submission under st one is that if that discovery were to subjecting that a naturally occurring object to a non natural process yields something that doesn't occur in nature then yes that would be court dealt with this in myriad already i don't even understand why you're hedging your argument on this i don't think you need it in order to prevail given that these are our method claims and i thought but aren't these claims just directed to a method of preserving cells by freezing them in vironment where the prior art suggested very much not to do that isn't this just a method of preservation and if so why isn't it necessarily knowledgeable for that reason why you need to make to my my my point is that under myriad where the supreme court was extensively to lengths to say we're not addressing method claims here and they made it very very clear it's important to know what is not implicated by this decision there are no method claims before this was a messy claim but that's different it was a method of detecting and inherent trait this isn't a method of detecting anything about their survivability in in frozen it's a method of actually freezing them and then having a group of usable exactly the point that i was making probably not as clearly as your honor that that that previous was about the tech should and this is about a method of acting upon the cells to put i'm in a different state and that's fundamentally different because it's subjecting them to this natural process i got to see this is where you lost me ok you are again going into the argument which i will not agree with you want because myriad has foreclosed it when you extract and isolate d n a you have done something to remove it from it naturally occurring state just like when you freeze the cells you've done something to remove them from their naturally occurring state but that doesn't change their underlying nature according to the supreme court and make them pattern eligible cell so i don't know that you could get me to go with you on the cells of the words these were cell claims but the kind we're not trying to tear not now we're not trying to do and we're very happy to rest on the fact that this is a method and it's a it is not a method for detection and that takes it out of mayo and we think for that reason we passed muster under step one and if there was any doubt about that turning to step two we think that the process is anything it is certainly doesn't meet the quite low standard of conventional well i think a that clearly is a method claim but i think the fact that we are not i think then we would have to put more weight on where judge moore doesn't want to go and to look at what's going on here and i think we would still say that what comes out at the end is something that is different but i don't think the court has to go there because this is quite clearly the method plan you mentioned multi pulled earlier and when you were describing the claim so just just to elaborate on the on the step two point i think even if we somehow work to song step one we don't think we do for the reasons we've discussed but but step two requires only something that's not conventional and not the team and we think we have that here the district court we think made a couple of errors of lawyer in applying that test first let's set the bar too high it seemed to set the bar much closer to the i mean aren't aren't these facts isn't isn't whether or not cryo preserving is a non obvious step to factual question there shouldn't it be that we desperately resolve that it's a question of law i  don't think the court is necessarily resolved that we think it's a it's the ultimate question of law but even if it weren't an ultimate question you know i mean a one to one question is ultimately i said law or do you mean whether or not cryo preserving ads are not a novel element  ultimately you know novelty anticipation as unself a question of fact right so if i'm looking at this claim to see if any of the elements add a novel aspect why would not be a question of fact well a couple of things i think i do i don't want to quarrel too much with the underlying point of your eyes question but i think it's important to recognize and i think this is a case where the court could make clear that the step to increase here is not anticipated in our novelty it's something that puts puts much less of a burden challenges that been disposed of now they haven't been addressed this is where we this is where we'll start in the litigation am i correct in understanding what the design around with three three back to the density gradient fractionalization yes you're on it it's  are conventional routine or not there certainly are a couple of questions first of all what is the standard for non conventional and on routine we think it's as i said a low standard it's basically is there something other than the industry something that was standard in the industry here there's a legal question about whether it's the district court did you look at the steps one by one and dissect them or whether as the earth says you have to look at them as a group with that that's a legal question and the district court also seems to take the position that a step was conventional if it turned on something that was the result of of an act of nature the results of freeze like that can't possibly be right because that would mean that no step in this area where everything depends on the consequences of a lot of nature in an on natural environment that can't possibly read and finally there has to be something in the record the district court here seem to really make us sort of what that decision on the this seems conventional without looking at the facts in terms of the prior art and other factual evidence and that that seems clearly wrong when we hear from the other side thank you also in mayo the application required the intervention of the human to prescribe and provide the drug and then the reaction that took place within the body was the natural reaction here and really he the same way as the claims in in myriad what you have here is detecting the ability of the cells the ones that are capable of being frozen and violent multiple times in myriad an endo and s on you detect the presence by amplifying the number of cells so there is a multiplication process here you did tapped those cells that are capable of surviving  by cycle through subtraction you isolate the ones that are capable of surviving from those that are capable of surviving and therefore detect their presence and what's claimed here is expressly a method of producing a in the patent itself you call out the natural phenomenon the ability the capability of a sub population of the cells to survive more of freespire cycles is expressly stated in the claim now it may very well be that someone could draft a claim for a process season including the processes of crowd preservation that would survive a one zero one analysis but here the way this claim is drafted nature that's not something that occurs naturally well and and d n a is not subjected to high temperatures to break their cold bail bonds and then spliced into it and create primers with regard and then you are now isolating those cells that are capable of surviving from those that aren't capable of surviving and now you are continuing on with a a product that consists entirely of combination of those individual cells that exist in nature and they operate exactly the way that they did in the future once you are applying would you agree that there are different methods by which you could achieve that i or stand your honest question the there may be an alternative methods that you could use at different steps in terms of self separation but these claims purport to cover every aspect of which you could perform of the second crowd preservation there is no limitation with regard to the step that applies the natural phenomenon here you take these cells and in a way that you subject them to a second cr cell separation that doesn't require well in the density of the cell to distinguish between them but in terms of what's presented here in terms of its application i think you have to look at the aspect of the claim that this method this method purports to cover in terms of the crowd preservation step in any type of crop preservation is performed on these cells that have been subjected to a prior  product of nature a natural phenomenon and because of that it's directed to it in fact if you express she calls out your the mirror that i mean mary and i read from it before when it says it's important to know what is not implicated by this no method claims before this court the next sentence is even more interesting how will you contend with this because it goes on to say had a myriad created an innovative method for manipulating the genes while searching for burka when it could possibly cells from the non viable cells is conventional and well understood and here the only aspect of this purported of this method that is new is the application of the conventional kind of crawl preservation step using conventional methods to cells that had been previously a close except that while the notion of cryo preservation is absolutely conventional it was counter indicated with regard to have had it how you have had to say so because they didn't generally survive and so here we have this method of separating out the ones most likely to survive and subjecting them to these you know the multiple freezes i guess freezing them first separating out the ones most like theirs by freeze them again so they've come up with an innovative way of selecting from the pool of all have out of sight cells those cells likely to be able to survive cry democrat no no they're actually submitting them they're freezing them they're sawing them sending them to a density gradient then they're separating them then they're freezing again that's what the steps are these steps have nothing do with identification it has to do with a series of steps being performed and a window wing of cells in that process but i don't see why this is an identification well you're right you are isolating the ones that exhibit the natural phenomenon of being clearly say i'm going to start with a group of cells some of which are capable of being frozen and far more than once but if this if this was your argument that nobody could ever even the very first person to have done it could ever get a method claim on prior preservation of any cells because your argument is that your method of cryo preserving cells even though it is a method of preservation is not eligible was providing an enhanced ability of those cells to survive through the crowd preservation techniques there is a galant that that all of the crowd preservation techniques that you can use any of them that they're often conventional that they're all well understood in which in the art the only difference between the crowd preservation steps here and those who have been practiced for thirty years at the time is that you're applying it to cells that have the natural  i really am the first to have come up with that and i i cry oh preserve a particular cell why is it really your argument then the next scientist that realizes and call has the light bulb go off oh my goodness not only can her cry o preservation technique work on these cells it will work on all these other cells as well and that he or she then patents the process of cryo preserving different cell lines which i had not anticipated i had not disclosed i had not thought of are they really not entitle to that patent well i don't think that's the case that yes you can but that is the case here because the argument it seemed to me till a large extent boiled down to whether or not it was obvious to cryo preserve the cells based on the likelihood of their survivability really what was acknowledged here is that there is a certain perspires certain number of these cells it's a scabbard that certain of these cells and you don't know which ones they are when you start the process have the capability surviving multiple freestar cycles so what do you do you take a good path to sites that are isolated from the liver you subject them to the first freeze which was a conventional step you father which was a conventional step you perform a densely gradient fractionation on them to separate out the cells that survived the first freespire from those that didn't conventional st you can cool those conventional stuff that was being done in the ark people were making their own rules and immediately go in on to test them in the pharmaceutical industry the only thing that wasn't done before was taking those are a series of steps every method every series of steps and every method each of those steps individually has been done by someone before it is like taking a chemical composition every one of the elements that added preexisted it's the combination that is nil if this combination is new these steps were not previously performed in this series in the past then why isn't it patent eligible i think the reason is because the way this claim seems to me that goes to the natural phenomenon that you're claiming is the wearing cause wearing greater than seventy percent that are viable after the first thought right nothing else in the body of the claim supports your health in the body of the plane and steps in that you point to the step to analysis of the court reaches it said that it was a simple step to mix the various naturally occurring substances and here as we've discussed our contention is that the steps here are freeze when when they are thawed and it's possible to mix them together from different donors and have something at the end that not only is preserved but also has this characteristic of of being a group of cells from different donors and does