please the court in the summary judgment of non infringement here should be vacated because it rests on unsupportable constructionists of the claims that issue the district court's constructions are at odds with the intrinsic evidence individually and collectively they have the effect of converting open ended claims which include the transition term comprising to closed and plaintiffs so that if an infringer simply adds another element a little more d n a a few mismatches to its product that would avoid infringement even if the product otherwise fully meets the three key characteristics that define h p v fifty two d in addition the district court drew unwarranted inferences from the specification examples under it of this court's law and imposed additional burdens on it have no place and claim construction is due west you mention the comprise and that isn't there also a consistency in these claims there is an embedded consisting of your honor yes and i i intend to get to that annoying but if you have a question now i'll be happy to answer consisting as limited consisting as limiting but the question is what does it limit that's the question if you like for an address that right now i'll get to it that was your first on the let's get to it the  the the terms are h p v d n a and quote consists of all or a fragment of an h p v d n a now first the general rule is and that means one or more and recently in the baldwin graphics case this court reinforced the presumption that it means want to more and said that the exceptions are very rare which would take an out of one or more but there is no suggestion in the decisions of this court that consists of changes the meaning of and and in the circumstances here where the basic claim is compris to say one of my difficulties here is i don't have a clue coming up on summary judgment you don't give us the whole context i don't have a good idea of what the waves invader a s r is doing i guess it's detecting or hybridizing to many strains not just fifty two well i don't believe that's entirely correct it may be correct with respect to some of their products but not all but that the accused product i'm doing is i'm criticizing both what's your theory for infringer fearing for infringement is first of all they don't deny that they're using h p v d n a which otherwise meets the the properties specified in the claims they're not denying they're using that they're not eleven to the olsen deposition in the lead parts of the deposition of before you i don't believe exhibit eleven is but we can submit that if it would be helpful but in the exhibit eleven it shows that one accused product is a string of h p v fifty two d n a with a couple of mismatches to mismatches which do not affect the hybridization properties but allow third wave to argue that accused products is it is forty one nucleotides in length so it's way longer than fifteen so for that reason the approximately fifteen issue here is not at all the term and it wasn't for enjoyment regardless to how you go on that we still are i'm not you mean even if we were to affirm the district court's construction of h p v fifty two d n a and the consist language you said there's still the would be they would have a way to infringement if it has to be only something that is purely h p v fifty two d n a but our position is you can make the claims with the spraying of h p v fifty two d n a but if you just attach a couple of extra nucleotides at the end which are quote other d n a that that doesn't that's not outside the claims and that doesn't avoid infringement it's the typical rule of if an infringer has what is claimed a b and c but i have speed that doesn't avoid infringement and that that's the situation we have here but i answer your question literally just as you need to address the to derive from do not mean only the references to specific for do not mean only in fact if you look at page thirty two of our blue brief we cited the prosecution history where the app applicant explained exactly what was meant by specific for you said it's specific for h p v fifty two that is the claimed age p m b fifty two d n a will not hybridized to the other h p types that's one of the fifty one under strange and conditions so that's what it meant by specific for it never the prosecution history never says never intimate that that the claimed h p v d n a has to be quote pure or it can include other nucleotides that's why the test under moderately stringent conditions for h p v fifteen today that's the second property in the klein first class white playmate the prosecution history go on to point out how you can synthesize once you've got what you've derived that you can synthesize it and when you can synthesize it and attempting an infringer can add a fe w elements of other nucleotides that are mismatches but do not prevent the that product from hybridizing with a clone p c t fifteen under moderately stringent specification and no nor the prosecution history ever says that the claimed saying cannot include other nucleotides if it meets the conditions specified in the client so if it  much mr pal it please the court the district court carefully looked at the claims of the intrinsic got to dance and construed the claim terms correctly with respect to all of the evidence before it what the named inventor purportedly did was identify the d n a of a particular type of h p v virus if you type fifty two fifty two and only fifty two in fact not even all fifty two was only this particular one because even within fifty two there is some the h p v fifty two d n a but the patent is clear that those fragments come from h p v fifty two d n a which is a thing it is not a function it is not a property it is a thing it is how the whole thing idea that same function if it performs the same function then maybe they could try to create some doctrine of equivalence argument but i think they've got serious prosecution history problems with that but it's not it's not the same molecule which they claimed the molecules so they didn't claim a function they claimed things this the composition of matter they claim propes they claimed h p v fifty two d n a that comes from h p v d n a which they've admitted is a full length genome they admitted that to the district court if you say it's a full length you know we can live with that they've agreed to that so then the question becomes can you have something that's part property a new detectable property to the d n a that's being labeled so you're supposed to label with a detective or label if d n a could be a detectable label then you'd always have a detectable label whenever you had a d n a the patents there was there was some discussion with respect to the comprising for the limitation the comprising limitation appears in claims eighteen twenty one twenty four and twenty six those are the independent claims twenty four and twenty six are method claims those are controlled i want to light you can't open up a method climb under the molecular in case law to risk to change the steps that have to be performed so that disposes of twenty four and twenty six hybridization it's defined by what it is which is the d n a from h p v twenty two in addition there is a lot more of these claims then does it hybridize two fifty two or not well it's a strange definition percent but does not cross hybridized with one to fifty one so very strange it's not just age fifty two with the definition but it's all these other i'll have to be considered don't think yes they do other limitations would have to be from from each of the characteristics and we show it in our opening free from pages thirteen to eighteen we have some pictures that show how to claim limitations operate to the lack of out the pieces of d n a but are a claimed h p v fifty two d n a act but it has to meet every single one of those and what they're doing is through those limitations as they're selecting out particular it turns out as we explain that comes up a little short because in selecting that out they may actually identify something that doesn't even hybridized fifty two which is why the preamble and claim eighteen is important for construction and understanding  third is so so i disagree with with with mr west characterization of our products and what they contain or don't contain in fact under any construction i i don't see how they can prove infringement of these claims but the key terms i think claims so i think you know to some extent those are the key terms but what so what's happened here is they've taken this discovery the fifty second type of h p v and now they're trying to say we claim not only the limitation in the claim gets you way from fifty two per se and gets you into another h p v which may have only a small fragment of they may have issues if they try to assert it that way and there are fragments of fifty two that are found in other h p v and that's part of why they have don't hybridize two hundred fifty one because the examiner realized this is well and they tried to exclude some of those other fragments that would have been known before the one to fifty ones but the way they are trying to read the claims if there was a human piece of d n a or a rabbit piece of d n a that has fifteen bases that are in fifty two it would anticipate and they don't describe these hybrid molecules or these mixed molecules they don't describe what they breathe they call when they say we're trying to exclude a random d n a whatever that is in that we're trying to exclude synthesize d that's not correct the claim constructions allow you to make the d n a but it's sequence has to match the sequence in fifty two if you make something that doesn't match what's in fifty two and it's not a fragment of fifty two it's something different  and they've said that in prosecuting they got claim twenty two issue which is dependent on eighteen and claim twenty of those seven one five patent specifies where in the h p v d or cloning back here as well as the the actual sequence that a they pulled out of the lesion that they biopsy so what they're saying is if you cut out the h p v portion of p c t fifteen and use that  is arguing this written description issue and they're pointing to application claim forty seven which was which issued twenty and they said don't worry about this written description it's taken care of and what they say is applicant notes in particular the new claims forty four to fifty one are specifically limited to new tide molecules from the h p v type fifty two clone p c t fifteen derived by applicant described in the specification a deposit under the terms of the estrie thus there can be no question that the nucleotide molecules of these claims are adequately described in other words all of the d n a that's covered by claim twenty all of the every component the d n a that's covered by twenty is in the h p v portion of p c t fifteen there isn't any other d n a you can't at d n a do this and we die gene or we applicant are going to the patent office isn't saying we can have it in through comprising or we can add it in through the label they're saying that all the d n a within the scope of this crime is found in the h p v portion which is h p v fifty two so they've said to the public in the patent office that these arguments they're raising now that you can plug fragment which actually isn't even close because it allows for anything so it consists of language close it down and h p v d n a logically according to claim language limited to one like geno taking last things first i was listening to mister explanation and he didn't really give you any reason why consisting of limits the meaning of an h p v d certainly consists of closes it to either all or a fragment of an h p v d n a but he didn't give you any reason and there's no precedent in this court that says that consisting of changes the meaning of an absent other evidence in the patent in the norene case there was plenty of other evidence in the patent that the court relied on but even in nori in this case court did not say that consists of creates any rule that changes the meaning of and in a clause like this now i'm going to ask the courts indulgence for a moment there we have the wilson deposition portions in the in the record and in there is an exhibit of the olson deposition and i i'm not sure whether this is in the record or not and i want to preface this so if you don't want to see this you don't have to but i think it will help you understand the question the answers the questions you've been asking me i use it is twelve the aware of it and you mr house i'm sure have seen this before presume is if you have a string of h p v d n a and you synthesize it and you put in a couple of mismatches which make it something a little bit different but it's still a trivia fifty two because it it just not going to meet the the claimant it's not going to infringe but if it does hybridise to the clone p c t fifteen and it is type fifty two if it doesn't cross dies to one with fifty one then you know it's not acids all along the chain there are act you how many potential fifty to scrap you could have you could have dozens we know of we know of some so they don't it doesn't it isn't that's the whole point here the district judge thought that eight h a label that the district court ruled unwarranted inferences from the long list of non exclusive examples she said well i don't see anything in there that says that nano radioactive d n a can be used well it does  wanted to so whether i had said something is or is not a detectable label depends on the use you make and the patent tells you how you can use the various things to be detectable labels so there is no basis for excluding d n a from even non radioactive d n a from the scope of detectable label thank you very much thank you mr west will be taken under