united states court of appeals for the federal circuit is now open and session god save the united states and this honorable court good morning ladies and gentlemen we have two cases from arguments morning to have us around the calendar the breakthrough invention by columbia the colombian ventures where the st to recognize the problem that had plagued efforts to achieve s b s for more than ten years the of that is incorporated by reference probably and then the invention which is described at the bottom of column two to the top of column three in the patent is the colombian venters recognition only recognition by anyone that race was very crowded and up till that time that it not been appreciated columbia appreciated that the tapping group had to be small it could not be a ketone it could not be it could not be a nest there that's what the claims describes and recites previously beginning with ten in the early ninety's the preferred compound was a two night was known it was mentioned in the deeper locking groups not the preferred capping groups of ten it was mentioned and that the blocking groups of charity we take issue with the majority calling it prominently noted we does disclose this and so as i understand it your primary argument is that metzger then somehow backs away from it and says no it may have been disclosed there but it doesn't work is that right determinate it just not completely right it says there was a problem had temp he said if you look at table two there's an asterisk and then at the bottom of the table when it says what the asterisk means sequencing also also the majority said that there was increasing some concentration of compounds but those were those were untapped compounds so you respectfully your honor we believe that there is no which is itself in the prior  we're not talking about mechanisms here there a walking group also known as the protecting group or terminating group was established in the prior art and the question was asked of columbia and that was not appealed what are we supposed to do with the fact that you made the opposite argument with respect to what chen shows during the re  exam predecessor in a different proceeding made the argument that chad was prophetic and i have to response on that one is there's no appeal of the stoppel so it's just you know an evaluation of the evidence here and whether the evidence supports b and c functional limitations in the claim so those companies distinguish the structural oh the otherwise structural definitions of the claim acquirements or maggie is you know it is fully supported and in terms of the function of it being a terminator that is clearly satisfied i just i think both in alyea was also shown to be incorporated in the growing strand then that's correct so there was no statement that it was partially incorporated or that incorporation wasn't complete for all the different molecules  by one expert you know over another he wasn't implying anything that would there was a legal issue there with respect to completing the incorporation increasing the concentration  response to your friend on the other side who argues that that actually that increased concentration takes you so far away from the teachings of chan that you're otherwise not really practicing is saying ok if you want to drive the reaction to completion work of a concentration of the alley old in the next year and it's personal that's just into it and i don't know why that would be surprising that if you reviewing metzger would understand that that the presence of the natural nucleotides created more competition for the derivate type ones but in any event increasing the concentration he describes how you would know about that corporation to completion for your terminations increase you know increase you know put some stansell excess of the derivative compounds and that's just basic chemistry and  to day for to look at it closely and that's the conclusion they came to i do not think that's a legal question and i certainly don't think counsel statement that there's no evidence that outlives the terminator after being described in the blocking group  comment that this is a known compound chen teaches using the aleo as the terminator so it's known out there it's not like it was on ellen and you have to put two references together to combine it ten or twelve continuations to do you know any of the history yeah i have some experience with the history you know this has been going on for almost ten years they've been you know after alumin small after that came out they've been trying to craft claims that they can get through and they had a set of claims that got invalidated and they score a different panel but they scored a lot in those invalidation problems and he we've discovered that you you can complete terminations this way and here's data about it that would be one thing but when they have a statement in column three a between line twenty five and thirty unqualified incorporation is achieved without saying oh and it's gotta be fact or it's a shortcoming or something like that there was no effort to define a long felt need to prove off that that need was satisfied which which which wasn't true you know which would have been able to be proved off i mean a lot of the people in the you know this of using such a system in to get me wrong i'm sorry but your honor it's a very detailed paper and from the beginning to the end it talks about terminator's we sighted the pages in our breaks from the beginning to the end it talks about terminator is not a terminator there were three terminator