three there were products in the market that's all in the patent application it's in that definition agreed upon definition of skill in the art was that person's going the art in their basic competency would know random sequencing so the idea that this was a new technology is just a look at the nature of the invention and the predictability of the are right and so the idea is is it a speculative thing is it just an inventor saying well let's create you know fusion or something like that or do they p invention here of the invention and i says what i was getting to a moment ago was you don't separate the maternal and the fetal d n a no one ever did that everyone is trying to divide it there's nothing in this record that anyone ever did that press or quakes major invention that's a issue here no one ever did that he said i'm showing you how you do it with digital p c r it mid he laid it out chapter and verse you spent a lot of time and then he said and this is i think i shall end by the table of contents for that application there's a there's anything inventive about how you do step the question is step the requires you take the number of hits you got for chromosome twenty one this is specter and the number of hits you got for chromosome twenty and you compared to if you've but if it's not in the specification why doesn't that still lead to the conclusion that the only thing the written survey specification supports overall is targeted sequencing because that implementation detail of how you do the comparison you have to do invention and there's no way in the world they wouldn't it says one way to use the invention is to used random d n a sequencing so they clearly would know that that's being attacked where does it say one way to defection  appointee is through random d n a sequencing i think that's that's the road if you said that you know we wouldn't be kind of on our hands and knees trying to hunt for clues to find and locate this second it's kate's a methodology useful in the pleasant invention proper form is based on massively parallel sequencing random then it goes on and then it sends you to the illuminate and that it sends you to the balasubramanian and it says one way to do the invention do even the board had to agree to that issue is if you have credited to chromosomes which you know to compare the one you suspect is and you quite with the controller not yes you would that's why they don't argue it and that's why the board didn't say it doesn't disclose the general comparison that general comparison is a step game now there is no statement of that specific as an example so that's what all agree there is not an embodiment where they lay out these are the statistical analyses you well they don't own it because they didn't tell us how you do that comparison when it's part of the definition of skill in the art that that this kind of sequencing would be natural they call it a detail they don't even want to defend and they'll say something by the fact that a person skilled in the art would know the d that spelled out in language were something but i don't know what language there's a language that's it's undisputed that one skilled in the art would know you compare to an your point chromosome count with the control that you want to see if it's elevated and the implementation of how you do that for this particular embodiment is not spelled out chapter and verse but everyone would know because it's a detail so let's go back to paragraph using the data and i'm saying one thing  there isn't there no the input is the quantification of the innocent of not missing their right because you're quantifying it based on the thirty in column two thousand where you're going you're taking your sequences and you're comparing them to the genome and you figure out where they're located from your county yes the count is there that the issue here is that examples are not required that's an area you don't need to spell it out if people would know the point of the whole predictability all the considerations that you're supposed to take into account were written descriptions of marriage this is really the point this is the why we women all those considerations none of them were made they said this is totally new without any support if it was new and unpredictable and you didn't know what you were doing yes but you need doesn't mean it's not written described and the fact that it's so trivial tells you that's not a written description violation you're in the time i'd like to yes reserve officers question which i'd be happy day ok the one that you  describe this claimed method as a unified hold whole and they said that and expand age fifteen and that fact finding scored by substantial evidence the board fin did not and this is a point of dispute it says pretty clearly that elements of the claims are described and it's clear what those are it describes m p s not random m p s as my learned brother said relating to the identification and perpetration of target specific regions and you can see that the next article down it's discussed is about designing primus and things like that and the point is words could be found somewhere in the specification and the late claimer came in and tried to assemble them the way that the earlier or that the patent on their hand and what the court description of the of the methodist community or what's missing is a description that the data is generated by random m p s but that data is  is a target specific method so when you ask well why was that cited there first of all the sentence it's attached to just talks about four color sequence and balasubramanian does describe four color sequencing at paragraph sixty four of that application and the reader is going to think that's all it's being cited for but it isn't any better than the reference to the aluminum machine in the testimony it was clear the aluminum machine could be used either for targeted sequencing or for random sequencing and the entire thrust of this application is the court has noted it's all about targeted sequencing targeted sequencing and as analysis step there's an elegance to at the a step can look just to this one to one ratio between the number of targeted sequences for one gene and the number for the other but when you use random sequencing you can't do that and there's no description in this patent that that one come to the patent and read the patent to understand what the inventor had invented and described and do we allow at that point the person skilled in our two to feel lives not in the description in if the issue is one of enablement then certainly you need not relate what people already know in terms of any movement when the issue was written description area of makes clear within the four corners plainly reference that said now go ahead and when was that data that you're generating then necessarily even though the specification still wouldn't say altogether the magic words random and yes by deduction necessary implication it's not talking about random m p s is the writer to say i think there would still be an relation to balasubramanian it would be a good indicator that there was a discussion that they were talking about random sequence information all i'm suggesting is that the way the specification is written there's nothing th huge or pull out balasubramanian and read it it says see also for four color sequences and one wouldn't expect you would footnote your way into the written description of the invention and i think we're blessed  we've really got some evidence in this record of what people who actually made this invention thought you needed to say and there are two applications in the in the appendix one is lo's application the involved application that starts it a four zero one three the other is quakes four one five patent provisional application which starts at page four one six five and one is not close application describing random identifies the marked contrast between the targeted method in the random method of paragraph one twelve and it identifies the need to normalize random data and paragraphs eighty through each one and equate provisional application similarly expressed way disclose paragraph thirty three and seventy expressly describes normalization and paragraphs twenty eight fifty four and seventy describes the important difference between random sequencing which uses all of the data in the sample and digital sequencing which works only at targeted sequences and how that gives you more accurate results in paragraphs ten and forty two and most importantly here it makes specific reference to the respect the whole point was that there was nothing in this application that specifically focused on random m p s and they said oh there is there  and the board said look aluminum can be used both ways so it isn't specifically m p s so this argument that is now being made here that oh everybody would recognize the instant i said thirty base pairs of random sequence can identify and chromosome even though it's in a paragraph talking about making regions for targeted detection they would immediately know everything you're supposed to do that's the wrong issue the issue with reading the specification as a whole what a person of ordinary skill in the art recognized that even though they didn't describe it didn't come right out and describe it the way everybody else did they nonetheless had invented the method that they're now claiming and the answer there is without acknowledging that this very elegant one to one comparison method that they describe doesn't work for random that you need normalization there without that the person skilled in the art would not recognize that this pile of words here is intended to be a description of random m b s and that basically is what the board found the first time and found the and more  detail in accordance with the court's helpful guidance and instruction this time around i'd like to address the question of the prior art there is evidence here first the fact that a person skilled in the art might have been able to do normalization if you had told them to do it if it were described is not the point an area is clear on that that a person of ordinary skill in the art would have been able to practice the invention had it carries over from what i did write these couple of words that i had that i now pulled together in light of what little actually claimed a person skilled in the art would be able to practise now they rely on keep on  azure for this idea that well you can look to the prior art for these matters keep on dealt with not having to repeat known d n a sequences but more importantly here there is testimony here from dr gabriel and paragraph nineteen on five seven six one that random m p s was not being used for diagnostic purposes in two thousand and six and two thousand and seven and such diagnostic pro choice approaches were then early really development so this prior art was not so gloriously fully developed that all that needed to be restated was oh go kind of chromosomes and on that point this is not whether the section and twenty that i pointed out before three regarding the only thirty base pairs of random information and said that that was a fine with targeted sequencing you asked if it could use them targeted he told you that would that or found that that was for targeted sequencing for prime or making here at fourteen at twenty four passage be expressed there are sites random sequence information accordingly even if the reference is a follower not relevant regiments or in sequence information we find the passage b does express the described random targeted any way you do it when you're taking one to one you still have to clean up the data it's not like me normalisation just one thing you do to clean up the data it's not like you just in target sequencing you're just done so that there's no written description of that either because you don't compare one to the other people skits and enablement cleaning up i mean you're talking about something that you compare data from one to the other and you have to clean it up but that's what's missing here it's missing for every single thing then the entire patent is not written described because every time you do the statistical now sister obviously are just putting two numbers out there but the but the point i want to make is there after indulge me this two quick points their expert admitted that one skilled in the art would know how to take into account the size of the chromosome this is at fifty nine eighty one but there was certainly well known at the time how you do that right in feb twenty seventh two thousand and seven to take into account the size of the chromosome to create a normalized frequency with that that you need to do that the other side repeatedly said just not just give you the cites a five seven six eight and a four zero one zero their own experts that person skilled in the art confronting us would know that you can use one to one because you had to normalize well they would know you have to do that they would know