Our last case this morning is a patent case, U2MX, advanced file fuels versus the case. It is phenomenal. May I please the current council? Good morning. Your honors have read the material so I would like to get to what is really good. Many times. Get to the key issue which is claim construction in this case because that is where the fundamental abusive discretion came from. That is an error. And we do have a mark in this case in January. Markman here in January. I would like to actually just walk your honors through the fundamental issue here in this hour. Let me ask you a question here. I think you make a good point that the district courts claim construction is problematic. The use of the word solely is difficult to read. The definition is that way. If for no other reason because it excludes some of the preferred embodiment that is a list of that. I think you make a point. But why isn't the correct construction of that definition of provision that is NADPH dependent or that it prefers NADPH, which is a construction which would make the definition consistent with the preferred embodiments and which I understand would still exclude the accused product here. So could you help me with that? Certainly. We start with what the specification says. And there the specification in column seven says that a carry that is the abbreviation everyone uses is an enzyme that uses an ADPH. So the question is what does that mean that it uses an ADPH? It doesn't mean solely. It doesn't mean solely. It doesn't mean exclusively. And there's nothing in the specification or the prosecution history that says NADPH dependent. So that's a new term as it is applied to carry. That's not in the specification
. There is another enzyme on column 12, for example, around 30, where they're giving an example and they say that enzyme is NADPH dependent. So where the applicants want you to limit themselves in that manner, they knew how to do it. Now when you read the same thing as preferring, that hasn't actually been argued yet in this case because GIVO brought up this concept of dependency. I thought that expert said that it was the same thing. Experts said that it was the same thing. As using? No, no, no. Maybe you may some of us have my question. That NADPH dependent means the same thing as preferring. Well, actually, Dr. Kersh used that term in his deposition. He said he had not defined it in his expert report. And so the concept of preference is not actually in the specification when it goes to the concept of carries. But my question is, can we agree that NADPH dependent means the same thing as preferring NADPH? No, we can't. We can't. Why not? Because as we're approaching Mark Minigeebo's using a different definition, which is one of efficiency. The patent that doesn't talk about efficiency at all, the only thing that the patent talks about is activity. And this paragraph is talking about what was a standard essay at that time for a carry. If we look at examples, too, it talks about a carry. And it says, how do we assess it? Is this on column 29? And it says that the activity is measured using a certain essay. This is approximately a line 46. And so when you look at that, what is that essay? And that's where I think there's this break down and it may become clearer when we understand the essay. And the essay is in the record. What the essay does is it says, I'm taking this proposed enzyme. I want to see if it's a carry. I put the substrate in
. I put NADPH in. And I measure whether any of the NADPH has converted to NADP plus. If any of that occurs, that means electrons have been donated. So that the carry enzyme has that reduction. So the reductase, and then I found the race. And that's the reductase part. So this is the test, the normal characterization of a carry. That essay, which is what is called out in this path, doesn't tell you anything about what it prefers. Because it doesn't say I put NADPH in. And I put NADPH in. It simply says, how do I know it's got this electron donating function? It says, I put that in. And I see that it has gone ahead and used some of the NADPH. So preference is not in the essay at all. It says, doesn't use it or not test. And the specification and the file history. And I would point your own, to the file history at 8194 and 8201. And it says, and characterizing the enzyme, you use the essay of example 2. And that essay has nothing to do. What do you understand with that definition to mean here? A preference? No. NADPH dependent? Yes, yes. My current understanding of NADPH dependent is that the turnover rate. So we have an enzyme. Right? The enzyme, how many times does it do the reaction in a certain amount of time? And that if it is NADPH dependent, that by a certain order of magnitude, it will accessor than an NADPH dependent enzyme. But under that analysis, the methanol caucus enzyme is excluded. Because the prior reference within the methanol caucus enzyme says that it will work 60% as fast if you will using NADPH
. So when we're talking about that, that's not even... But a dependent mean that the same thing is preferred that enzyme would be within that definition. Right. But enzymes don't prefer. It's a question of activity rate. And if you put... We'll take this pattern. There's claim 2. Claim 2 says you're using anaerobic. Do we have expert testimony on this? I appreciate it. We do. And where do we find the expert testimony saying what you're saying? Wearing this record, do we find the expert testimony that says the same thing that you're saying that? That the anaerobic? That the dependent means the rate rather than preference. That's in the specification of the patent. The only asset... So there's no expert testimony? Expert testimony. The only expert who talks about dependence was after a curse and he did not define it. So..
. So I guess you guys are going to be getting into these questions at the market. I think that's certainly correct. But I think it's also correct that we need to read a patent specification for what it teaches. And what about claim 13? I'll give you a quick one. Claim 13, the expert testimony in this case on claim 13 was from Dr. Kurtz, G. Vose Expert. And Dr. Kurtz said, when I read this patent, right away I know it's telling me to knock out the PDC. And that is his testimony. Well, and you've got column 12 lines 15 through 18 that discuss prior art enzymes that reduce pyruvate. That's right, decarboxilized. So... Thanks for having me. One of the few lines. I was seeing the D and stopping. Your honors will note that when I do endocases and there's small molecules, I have much more difficulty in actually saying the words. So that's my biotech diagram, maybe. But... Is it that written description support? I believe it is written description support because the patent tells you what you want to do is knock out a side reaction so you get more going straight to where you want it to go. And it says, this pyruvate decarboxilized is a big thing that takes off as a side reaction
. So if you put two pieces, two sentences together and it clearly says that. And the examiner obviously found that there was sufficient description. Could we talk about the substantial question of validity? Yes. He's got Bolton and Chen talking about the natural pathway and setting it forth with great detail. He's got Bequie and Yokem talking about adding the... Recony. Recony. I think there might be some difficulties with absolute anticipation. But isn't there enough there for at least obviousness? Well, first of all, you're on a district court, did not find obvious. I understand that. But we're talking about a substantial question of in validity. Yes, we... I'm suggesting there's an awful lot of prior art that is all over the area here. Is there enough for a substantial question? No, you're on her. If you'd like me to address obviousness, I will do that in my short time rather than anticipation. And give me the vote. So what the district court said as the anticipation was she said, I find... But let's remember what the claim is. We start with the claim always
. The claim is a method claim. You're contacting the media with a recombinant use. So step one is, does a reference have a recombinant use? Step two is, does it have the engineered pathway? And step three is, does it have the right reactions? Four is the right enzymes. And five is, whereby that pathway produces isobutinal. There are no references with recombinant use, where it shows that there is isobutinal produced. The district court is teaching the pathway and the enzymes. Chan is kind of reinforcing that. And then you've got yokum and bequeen. We've been over this. So none of those references are two recombinant enzymes. Let's retry the... But then that's where the yokum and bequeen, those people come in. But let's look at those references. Two of those references were to engineer a different pathway for vitamin B5. So they say, I'm going to engineer and I'm going to make the pathway vitamin B5. That doesn't make making isobutinal obvious. Two of the other references were to go ahead... But does it suggest a one of skill in the arc that you can certainly use recombinant yeast in this kind of a setting? That one could use recombinant yeast to engineer something? I think... Well, in the particular pathway, of course, we've got to look at the pathway of bultin and Chan
. Now bultin and Chan are speculation. Those are not proven pathways. And the evidence that we have in the record here... But they're right on. Their evidence is saying, I know that there's this vanishing pathway. That's called the perlet pathway. Is it possible that there's another pathway? The pathway. And they say, well, I could guess that this is the pathway. They don't show that there is a pathway. And the evidence of record also is... And this is from Dr. Cephanopolis G-Los X-Ferlet. G-Los X-Ferlet. He says... Are you saying this prior arts are not enabling? No. What I was about to say was G-Los X-Ferlet said... Prior to Budamax doing this, there was no motivation for anyone to go ahead and do isoputinol production
. That motivation, nobody was looking for it. Nobody thought about it. Budamax came up with it. DuPont came up with it. But what I am also saying is those references, bultin, those are B-Los. And respectfully, that is non-analogous art. If you're looking at... Those are interesting arguments, but they're pretty substantial arguments the other way to run. Well, I think if there's no motivation to go ahead and do this, I think on the face, we take our standard law of obviousness. We say, what's the prior art? Assuming it's an alias. I would say the errone of it, there's no evidence in this record that it isn't halogous. But you say, let's take the closest prior art. Let's say what changes need to be made. Where is the motivation to combine? And that motivation to combine, so whether it's testimony or piece of prior art, there has to be some motivation. And what the evidence from Dr. Stepanopoulos was, is prior to DuPont and DuPont and DuPont and do the next doing this, nobody even thought about it. But, counsel, I'm reading into what Judge Dyke asked and radiation, but you're appealing from the denial of a motion for preliminary injection. And you've got a balancing test and discretion on the part of the court. That is correct, Your Honor, but we have to do that based on the record and what the district court found. Because we are now looking to see whether the district court abused its discretion. And so when the district court found in validity, the likelihood of in validity, she did it on a reference, the La Roire reference, which I haven't had lost. Where if you look at the very first page of the La Roire reference, I believe, you will see that here's La Roire, he's saying, the yeast genome has now been met. I want to find out what this DNA part does
. So no, it is us. Figures out, it codes for an enzyme. And then he says, I'm writing the beginning and I want to speculate. And he uses the word, they use the word speculate about what this enzyme might do. And points to the early pathway, this, what I'll call the Bolton pathway, we're one of a better work, and a third pathway. So there's nothing in that evidence that says that that is the pathway that's working. And he's only saying that's how it would work in nature. I would remind the court that when you engage in recombinant engineering, you can be turning off enzymes. These things, the way this works is you have DNA, but for this pathway to work, you need the enzymes. And for the enzymes, you have to have the DNA turned on for all five enzymes. They need to be transcribed, they need to be translated. And as Dr. Stephanoff was, GIVO's expert said, under some conditions it might work and under some conditions it won't work. That is not necessarily there. Thank you, Ms. Enami. Let's restore your rebuttal time. Thank you. And would you give Mr. Flatman 20 minutes, that'll be rebuttal time a little more, if you need to use that, get yours Mr. Flat. Thank you very much, Ron. Good morning. May I please the floor? Your honor, I'm correctly addressed the relevant standard here, which is a views of discretion on and a feel of a denial of PI. And essentially to overturn that judgment of the district court on the court
. Don't we have a legal error of reading in a term that wasn't in the claims solely? Well, I don't think we have an error here. Did you didn't argue solely to the district court? Did you? I don't think we did here, Ron. I can understand a lot. Well, I don't think we need the term solely. I think we can understand the term as you're on. I just stuck with that. That's what's on review here. This court cannot look at plain construction to no vote and reach a different construction. It's been so wishes, even on the appeal of the PI. And if we take out the word solely, I think we're still in the same place in terms of finding the infringement here. Which is our results, the NADP, dependent, right? That's absolutely correct. And by that, your ex-lizment prefer. Indeed. And your honor asks the leader that really refers to a process rather than a dependency. I can explain that. It's a rate. There's a place where Ms. Benemis said. Yes, I don't think that's correct, Your Honor. There are three classes of ferry enzymes. There are those that are NADP, H dependent, and prefer NADP, H. There are those that are NADH dependent, that prefer NADH. And there are those that are NADP, H or NADH dependent. And these are three separate classes, Your Honor. And this is structural, really. Because what you have is formation of a complex Your Honor. Where the co-inzyme, the NADP, H, let's say, is actually bound to a part of the carry enzyme. Of the specific class. So we have a structure. The district court correctly read the lexicography in the specification. Where there was an explicit definitional section as calling for an NADP, H dependent carry enzyme. And it did so for a number of reasons. One, there was explicit lexicography. There was a definition. And under those courts present cases like Cynorbkem. That is very compelling evidence concerning the claim construction. It also did so because the patentee knew how to define other classes of carry, one in two, other classes of enzymes, one in one in two. There are at least three other portions of the specification, which we have pointed out in our brief. Where the patentee pointed to NADH and or NADP, H dependent, NZ. So when it wanted to characterize an enzyme in that fashion and call out a specific class of enzymes, it knew how to do so. It did not do so here. It didn't need to define its carry with reference necessarily to any. But it does list in the patent as one of the carry enzymes, NADH. And suggests its use in prior art. Why isn't that sufficient to suggest that it wasn't limiting itself to NADH? Well, you're on it. It does not call out the carry enzyme as NADH dependent anywhere in the specification. It talks about other enzymes as being NADH dependent. But it never discusses carry enzymes. In fact, in related application that was filed as a CIP, so it's relevant to claim construction here. It redefined carry as NADH or NADPH dependent
. Because what you have is formation of a complex Your Honor. Where the co-inzyme, the NADP, H, let's say, is actually bound to a part of the carry enzyme. Of the specific class. So we have a structure. The district court correctly read the lexicography in the specification. Where there was an explicit definitional section as calling for an NADP, H dependent carry enzyme. And it did so for a number of reasons. One, there was explicit lexicography. There was a definition. And under those courts present cases like Cynorbkem. That is very compelling evidence concerning the claim construction. It also did so because the patentee knew how to define other classes of carry, one in two, other classes of enzymes, one in one in two. There are at least three other portions of the specification, which we have pointed out in our brief. Where the patentee pointed to NADH and or NADP, H dependent, NZ. So when it wanted to characterize an enzyme in that fashion and call out a specific class of enzymes, it knew how to do so. It did not do so here. It didn't need to define its carry with reference necessarily to any. But it does list in the patent as one of the carry enzymes, NADH. And suggests its use in prior art. Why isn't that sufficient to suggest that it wasn't limiting itself to NADH? Well, you're on it. It does not call out the carry enzyme as NADH dependent anywhere in the specification. It talks about other enzymes as being NADH dependent. But it never discusses carry enzymes. In fact, in related application that was filed as a CIP, so it's relevant to claim construction here. It redefined carry as NADH or NADPH dependent. So it realized that it had a restricted definition to a single class of carry in the patent that issue. And later on, it expanded the definition. And that's relevant as well. On under this course present, it cases like KO, it cases like Avifixandos. It knew how to claim this one if wanted to. And it didn't claim it here. It didn't describe it here. And it put in explicit narrowing definition to a separate class. Now, your honor has asked whether there was testimony, expert testimony, the hearing concerning dependency. And yes, there was. I found one just quickly in reference to your honor's question, the first testimony at A16568, page 207, he discusses what was explicit to him about the use of NADH and NADPH dependent enzymes. And his discusses a matter of a strong preference for that co-enzyme for that particular class of carry. So, while the word solely may or may not be the best choice of words in the district reports, construction, what it clearly means is dependency, strong preference and dependency. And that is a correct definition as we see in patent specification. Your honor's, in terms of other reasons, why we know this claim construction is correct. We can look at claim 14. It's a dependent claim from claim 1. And it adds a limitation that says uses NADH co-factor essentially. Well, that language would have been entirely superfluous if claim 1 included the use of NADH or the preference for NADH in terms of the course claim construction. The existence of that claim tells us we know that. So that cut against you by if it greed the old more out of the claim that if step 2 is only using NADPH as the electron donor, then the term old more would be out of the claim. Oh, well, while you're on it, you see in play 14, the NADH dependent enzyme to be anything's on. It doesn't have to be the carry. There are five enzymes in this pathway. And as it turns out, if we look at the prioriography, the last enzyme in the pathway is actually NADH dependent
. So it realized that it had a restricted definition to a single class of carry in the patent that issue. And later on, it expanded the definition. And that's relevant as well. On under this course present, it cases like KO, it cases like Avifixandos. It knew how to claim this one if wanted to. And it didn't claim it here. It didn't describe it here. And it put in explicit narrowing definition to a separate class. Now, your honor has asked whether there was testimony, expert testimony, the hearing concerning dependency. And yes, there was. I found one just quickly in reference to your honor's question, the first testimony at A16568, page 207, he discusses what was explicit to him about the use of NADH and NADPH dependent enzymes. And his discusses a matter of a strong preference for that co-enzyme for that particular class of carry. So, while the word solely may or may not be the best choice of words in the district reports, construction, what it clearly means is dependency, strong preference and dependency. And that is a correct definition as we see in patent specification. Your honor's, in terms of other reasons, why we know this claim construction is correct. We can look at claim 14. It's a dependent claim from claim 1. And it adds a limitation that says uses NADH co-factor essentially. Well, that language would have been entirely superfluous if claim 1 included the use of NADH or the preference for NADH in terms of the course claim construction. The existence of that claim tells us we know that. So that cut against you by if it greed the old more out of the claim that if step 2 is only using NADPH as the electron donor, then the term old more would be out of the claim. Oh, well, while you're on it, you see in play 14, the NADH dependent enzyme to be anything's on. It doesn't have to be the carry. There are five enzymes in this pathway. And as it turns out, if we look at the prioriography, the last enzyme in the pathway is actually NADH dependent. So the carry enzyme is there's no inconsistency. The carry enzyme can be NADPH dependent as described in the specification. And then the last step in the pathway can be NADH dependent. The other enzyme can be NADH dependent. So there's no inconsistency, your honor. And the claim allows for one or more of those enzymes to be NADH dependent. Because NADH could operate on any of the other enzymes in that five step pathway. So the claims are entirely internally consistent and they lead us towards the district-quake claim construction. Now, your honor, there was reference to the exclusion of an embodiment. First of all, if one embodiment is excluded out of a vast array of embodiments, it can't trump clear lexicography under the scorched case law. But the factual matter, this was not proven on the record below that there was any excluded embodiment. Well, I thought that if dependent means deferred, that's the construction, then all the listed enzymes are within the flame. Absolutely, your honor. Even under their interpretation of the facts, that's correct. But their facts are actually wrong. They say that this one bacterial enzyme from methanococcus maritalutus, I think I got that right, is excluded because they look to a paper, this thing article, which says that it has a 60% preference for one enzyme over the other. And that's not the case. The enzyme that was actually tested in that paper, which is 814-751 at 2089, was from a different bacteria, methanococcus, alioacus. So it's a different bacteria, so their facts are wrong anyway. But on the law, that would not warrant running from the lexicography anyway. Now, I would rest the ability question. Very happy to your honor. The district court found inherent anticipation. And on the facts and on our consideration of the evidence and the expert testimony, she was certainly not abusing for discretion and doing so. As Ronner noted, there are a multitude of references, each of which independently shows the pathway that we're talking about in these claims
. So the carry enzyme is there's no inconsistency. The carry enzyme can be NADPH dependent as described in the specification. And then the last step in the pathway can be NADH dependent. The other enzyme can be NADH dependent. So there's no inconsistency, your honor. And the claim allows for one or more of those enzymes to be NADH dependent. Because NADH could operate on any of the other enzymes in that five step pathway. So the claims are entirely internally consistent and they lead us towards the district-quake claim construction. Now, your honor, there was reference to the exclusion of an embodiment. First of all, if one embodiment is excluded out of a vast array of embodiments, it can't trump clear lexicography under the scorched case law. But the factual matter, this was not proven on the record below that there was any excluded embodiment. Well, I thought that if dependent means deferred, that's the construction, then all the listed enzymes are within the flame. Absolutely, your honor. Even under their interpretation of the facts, that's correct. But their facts are actually wrong. They say that this one bacterial enzyme from methanococcus maritalutus, I think I got that right, is excluded because they look to a paper, this thing article, which says that it has a 60% preference for one enzyme over the other. And that's not the case. The enzyme that was actually tested in that paper, which is 814-751 at 2089, was from a different bacteria, methanococcus, alioacus. So it's a different bacteria, so their facts are wrong anyway. But on the law, that would not warrant running from the lexicography anyway. Now, I would rest the ability question. Very happy to your honor. The district court found inherent anticipation. And on the facts and on our consideration of the evidence and the expert testimony, she was certainly not abusing for discretion and doing so. As Ronner noted, there are a multitude of references, each of which independently shows the pathway that we're talking about in these claims. And Bolton, in particular, shows us each and every enzyme that inherently operates along that pathway. She focused in her opinion on the leroi reference, as well as some others. But if we look at leroi, particularly now, which is A10095 is a beautiful chart there. Leroi engineered a recombinant yeast, put in a hyper-expressed enzyme for the last part of the pathway, an ADH6 enzyme, which is a dehydrogenate enzyme. And that pathway and that enzyme, which it put in, have preference for NADH, it's not the carrier enzyme. And leroi mapped out the exact pathway that's in the pattern with this recombinant yeast and says, I said goodnight at the end of the day. In the discusses of the the fear reference? Yes. Leroi, I'm sorry, you're wrong. Leroi. Can you address the analogous art question? I'm very happy to. And then address as well, this binomy says, when you start recombining these enzymes, you can turn them off, as well as turn them on. Can you address that as well? I certainly can. Can I go in that order? Well, leroi tells this explicitly that he turned on the enzyme by doing this recombinant work. He tells us that he got overexpression, that'll be as, which begins at 810087. So we know that it worked. We don't have to guess. And he says he made isobutinol. We don't have to guess here. The ant isobutinol production would have been inherent anyway. No, it's pathway. Leroi tested this outside the cell, right? No, this is, he describes the recombinant engineering up a cell. So this is something that he is saying happens in a cell. Then he draws all the various pathways by which you can get to higher out the halls like I said, you know, and explicitly discloses those pathways. And then then this ties into the beer reference. Leroi itself is not about beer
. And Bolton, in particular, shows us each and every enzyme that inherently operates along that pathway. She focused in her opinion on the leroi reference, as well as some others. But if we look at leroi, particularly now, which is A10095 is a beautiful chart there. Leroi engineered a recombinant yeast, put in a hyper-expressed enzyme for the last part of the pathway, an ADH6 enzyme, which is a dehydrogenate enzyme. And that pathway and that enzyme, which it put in, have preference for NADH, it's not the carrier enzyme. And leroi mapped out the exact pathway that's in the pattern with this recombinant yeast and says, I said goodnight at the end of the day. In the discusses of the the fear reference? Yes. Leroi, I'm sorry, you're wrong. Leroi. Can you address the analogous art question? I'm very happy to. And then address as well, this binomy says, when you start recombining these enzymes, you can turn them off, as well as turn them on. Can you address that as well? I certainly can. Can I go in that order? Well, leroi tells this explicitly that he turned on the enzyme by doing this recombinant work. He tells us that he got overexpression, that'll be as, which begins at 810087. So we know that it worked. We don't have to guess. And he says he made isobutinol. We don't have to guess here. The ant isobutinol production would have been inherent anyway. No, it's pathway. Leroi tested this outside the cell, right? No, this is, he describes the recombinant engineering up a cell. So this is something that he is saying happens in a cell. Then he draws all the various pathways by which you can get to higher out the halls like I said, you know, and explicitly discloses those pathways. And then then this ties into the beer reference. Leroi itself is not about beer. But he, in his chart, he references the Bolton art book, which is about beer and biochemistry of beer, as the reference for his pathways and his explanations of the enzymes. So the beer art are the most analogous arts. We're talking about making isobutinol with yeast. We're talking about the fermentation arts. That's what biofuels are all about. And the best evidence is that Leroi himself referenced the beer article, the Bolton art book, in his own paper, in the chart that we're relying on. So here I am. This is just one of the many separate and independent reasons why the district court was writing and finding the claim that there was a substantial question of validity. She could have combined other references and looked at obviously she declined to do so because she found anticipation on several different bases in life of a number of the different pieces of art that you're on or alluded to. Should I let there's no single reference that includes all the steps? There is. What's that? At least Leroi. Because Leroi has a recondent yeast. We know that. Yeah, but it doesn't have the pathway. It does. It does run. Why did we recite the claim pathway with all the five enzymes? It's already happened to us. It's at a 10095 and there's a chart. I'll just show you as you can reference it. And it shows for the steps of the pathway, it has a dotted line for one of the steps and it refers you to Bolton. It incorporates Bolton. It says taken from 21, which is Bolton in modified form. If we look at Bolton ours, which is directly referenced here, Bolton lays it out chapter in verse. The entire pathway is at Bolton 809980. And all the enzymes are described at 809997
. But he, in his chart, he references the Bolton art book, which is about beer and biochemistry of beer, as the reference for his pathways and his explanations of the enzymes. So the beer art are the most analogous arts. We're talking about making isobutinol with yeast. We're talking about the fermentation arts. That's what biofuels are all about. And the best evidence is that Leroi himself referenced the beer article, the Bolton art book, in his own paper, in the chart that we're relying on. So here I am. This is just one of the many separate and independent reasons why the district court was writing and finding the claim that there was a substantial question of validity. She could have combined other references and looked at obviously she declined to do so because she found anticipation on several different bases in life of a number of the different pieces of art that you're on or alluded to. Should I let there's no single reference that includes all the steps? There is. What's that? At least Leroi. Because Leroi has a recondent yeast. We know that. Yeah, but it doesn't have the pathway. It does. It does run. Why did we recite the claim pathway with all the five enzymes? It's already happened to us. It's at a 10095 and there's a chart. I'll just show you as you can reference it. And it shows for the steps of the pathway, it has a dotted line for one of the steps and it refers you to Bolton. It incorporates Bolton. It says taken from 21, which is Bolton in modified form. If we look at Bolton ours, which is directly referenced here, Bolton lays it out chapter in verse. The entire pathway is at Bolton 809980. And all the enzymes are described at 809997. And the district court was within its rights to evidence from the testimony about veterans from Dr. Stephanopoulos at page 80 in particular for the transcript. So I move to written description. The district court was right to credit the testimony of the expert, the expert Dr. Piersch on this point. It's a question of fact and reviewed for the court. Dr. Kierst went through each of the three sections of the specification that was planned for a lie down to try to show written description, found that it did not describe a PDC deletion. The testimony that was referred to by a council had to do with Dr. Kierst saying that one would want to do a PDC deletion. He did not testify that there was any written description of such in the specification or any indication that the eventors possessed that sort of invention is planned. And that's a very different thing. A mere wish, a suggestion, even obviousness is not proof of written description. Here we don't have any. And I'd like to take your on this first to column 12, which was alluded to in the earlier part of the argument. There's a discussion of preventing misdirection of aggravate at column 12 line 15. Two enzymes in the prior are reduced, the pyruvate, decarval, etc. Exactly. Well, this isn't talking about a gene deletion. This says a decarboxylase with decreased affinity for pyruvate is desired. It's talking about substitution. That's very different. It says, let's get an enzyme in here that has less affinity. It doesn't say knock out the gene. And that wasn't far there in mention at the time
. And the district court was within its rights to evidence from the testimony about veterans from Dr. Stephanopoulos at page 80 in particular for the transcript. So I move to written description. The district court was right to credit the testimony of the expert, the expert Dr. Piersch on this point. It's a question of fact and reviewed for the court. Dr. Kierst went through each of the three sections of the specification that was planned for a lie down to try to show written description, found that it did not describe a PDC deletion. The testimony that was referred to by a council had to do with Dr. Kierst saying that one would want to do a PDC deletion. He did not testify that there was any written description of such in the specification or any indication that the eventors possessed that sort of invention is planned. And that's a very different thing. A mere wish, a suggestion, even obviousness is not proof of written description. Here we don't have any. And I'd like to take your on this first to column 12, which was alluded to in the earlier part of the argument. There's a discussion of preventing misdirection of aggravate at column 12 line 15. Two enzymes in the prior are reduced, the pyruvate, decarval, etc. Exactly. Well, this isn't talking about a gene deletion. This says a decarboxylase with decreased affinity for pyruvate is desired. It's talking about substitution. That's very different. It says, let's get an enzyme in here that has less affinity. It doesn't say knock out the gene. And that wasn't far there in mention at the time. The other sections that we talk about in our fleet also don't discuss deletion of BDC. There's a general section that says you might want to delete genes here or there. It doesn't say which ones. Then there's reference to an article that's not even incorporated by reference, which doesn't deal with BDC deletion in this context at all. The district court was right to credit Dr. Cures's testimony on this point. And her opinion is very careful in these lines. We have another reason for knowing that they didn't possess the invention, which is outside the foreconference of the patent, but still very relevant. Years later, in a related application, that was incorporated by reference to a CIP of the present application, the plan of clanging to PDC deletion explicitly and described it explicitly. So when they ultimately came into possession of that invention, we believe after reading a gevo published application, I think we referenced in our previous on this subject. They included in the specification and that has a detailed and accurate description. That's the same application in which they said that it would be very, very helpful to have an NADH dependent ferry. Because none are known yet. So, you're on this, there's just no written description here, of PDC deletion whatsoever. In terms of the harm factors if we even get that far of your honor, there's no evidence that the evidence is that Budamax isn't even going to launch a product until late 2014. There's no real harm here. The quantities that have produced by Gevo today are minimal, easily compensable in damages if necessary, if we go all the way through trial and don't prevail. Trials in April. I address any other questions that support me. I don't have any other questions, but I do have a comment. It strikes me that you were not as careful as you should have been in the confidentiality of markings in the red brief. There are legal citations, descriptions of cases that are more confidential, the perched declaration parts of that are more confidential than the public document, legal arguing, this more confidential. I do think you should be more careful about that. I apologize for that, I didn't notice that. I mean, I will take a look at that and we'll be careful
. The other sections that we talk about in our fleet also don't discuss deletion of BDC. There's a general section that says you might want to delete genes here or there. It doesn't say which ones. Then there's reference to an article that's not even incorporated by reference, which doesn't deal with BDC deletion in this context at all. The district court was right to credit Dr. Cures's testimony on this point. And her opinion is very careful in these lines. We have another reason for knowing that they didn't possess the invention, which is outside the foreconference of the patent, but still very relevant. Years later, in a related application, that was incorporated by reference to a CIP of the present application, the plan of clanging to PDC deletion explicitly and described it explicitly. So when they ultimately came into possession of that invention, we believe after reading a gevo published application, I think we referenced in our previous on this subject. They included in the specification and that has a detailed and accurate description. That's the same application in which they said that it would be very, very helpful to have an NADH dependent ferry. Because none are known yet. So, you're on this, there's just no written description here, of PDC deletion whatsoever. In terms of the harm factors if we even get that far of your honor, there's no evidence that the evidence is that Budamax isn't even going to launch a product until late 2014. There's no real harm here. The quantities that have produced by Gevo today are minimal, easily compensable in damages if necessary, if we go all the way through trial and don't prevail. Trials in April. I address any other questions that support me. I don't have any other questions, but I do have a comment. It strikes me that you were not as careful as you should have been in the confidentiality of markings in the red brief. There are legal citations, descriptions of cases that are more confidential, the perched declaration parts of that are more confidential than the public document, legal arguing, this more confidential. I do think you should be more careful about that. I apologize for that, I didn't notice that. I mean, I will take a look at that and we'll be careful. Check. You're on. All right. That was a great argument. Thank you, you're on. Thank you. Thank you. Thank you. Thank you. Your honor, if you would look at the appendix page 11350 and it's a mini script, so it's really page 260, Ty. You will see that Dr. Stefanopoulos-Deebo's expert says that LaRoy is not being excited for the production of Isobutinol. LaRoy does not show the production of Isobutinol. That was argument with the evidence of witness, was that it does not. That is the first point I would like to make. The simple fact of the matter is, just as council said, well, when they wanted to say NADH dependent, they said so. In the patent, when they describe the carry, they do not say NADPH dependent elsewhere in the patent where they want to say NADPH dependent, they do so. So if you take the definition in the past and just use the words that are in the definition, all you need to show is that this is an enzyme that uses NADPH. So we are adding preference or dependence or whatever you would like into this claim language, into the specification. This is a case where if you look at the specification when they wanted to say dependence, they did know how and they did and they did not say that for carry-ins on your own. So we are reading dependence into a definition where it does not exist. That is what the district court did. And you do not go ahead and construe this patent in light of what GIVO does. The fact of the matter is, the evidence shown, the public evidence, that GIVO's enzyme does use NADPH. I would like to consider claim 14 for a second because claim 14 does show that this carry was intended to be using NADPH
. Check. You're on. All right. That was a great argument. Thank you, you're on. Thank you. Thank you. Thank you. Thank you. Your honor, if you would look at the appendix page 11350 and it's a mini script, so it's really page 260, Ty. You will see that Dr. Stefanopoulos-Deebo's expert says that LaRoy is not being excited for the production of Isobutinol. LaRoy does not show the production of Isobutinol. That was argument with the evidence of witness, was that it does not. That is the first point I would like to make. The simple fact of the matter is, just as council said, well, when they wanted to say NADH dependent, they said so. In the patent, when they describe the carry, they do not say NADPH dependent elsewhere in the patent where they want to say NADPH dependent, they do so. So if you take the definition in the past and just use the words that are in the definition, all you need to show is that this is an enzyme that uses NADPH. So we are adding preference or dependence or whatever you would like into this claim language, into the specification. This is a case where if you look at the specification when they wanted to say dependence, they did know how and they did and they did not say that for carry-ins on your own. So we are reading dependence into a definition where it does not exist. That is what the district court did. And you do not go ahead and construe this patent in light of what GIVO does. The fact of the matter is, the evidence shown, the public evidence, that GIVO's enzyme does use NADPH. I would like to consider claim 14 for a second because claim 14 does show that this carry was intended to be using NADPH. Claim 14 says one or more enzymes. And the evidence of record is that there are only two enzymes that can use NADPH. And one of them is the carry. So the support for more must be the carry enzyme. Similarly, claim two says that the end of the method is being used under anaerobic conditions. Anerobic conditions, testimony of GIVO's witness, Dr. Glasner, is when you have a lot of NADH. So there you're saying, I can do this anaerogically. Where you're going to use a lot of NADH. You have claim 14 that says, you're going to use one or more of the enzymes is going to be using NADH. That has to include the carry, or else you can't say it or more. And you have a specification where it has a definition and a perception where it says it uses NADPH with no statement of preference, NADPH preference, where when it wanted to say NADPH preference for another enzyme, it used that in language. So we are changing the definition that's in the pattern. As to the role, Dr. Stephanopoulos, and I can't go through the whole record, it is all cited for you, repeatedly said, it depends on the conditions that in the, even in his view of the natural pathway, which has never been proved. He says sometimes it might work, sometimes it might not work. It might be altered on, it might not be altered on. What we know from Dr. Klebenopoulos, in the actual yeast, some of the enzymes are only being made in this organ alcohol, the mitochondria. Some of them are being made in the cytosol. So it's as if I have two different factories. One's in New York, one's in California. How did you get a pathway out of that? They're not to get it. And that's what the evidence of record is. So your honor is, it's nice to go ahead and look at what GIVO does and says, boy, maybe it should be NADH dependent, NADPH dependent, three years later, five years later, what do people want to call these things? But the fact of the matter is that in this patent, in this specification for carried, it does not say that
. It says, uses NADPH, it describes an essay, that essay does nothing, says nothing about dependence. It's a yes or no, can it use the NADPH? Thank you. That concludes our morning