Legal Case Summary

. Well, that's George Scott. And it is. We've got this idea of the plan. And it is. But the key here is the district code in this case can be screwed by claims and ways that really undermine the narrative of the patents and ways that we don't leave a very moving ball. There's two claim construction issues here. And also a fast solution. With respect to the first claim construction issue, the claim term of issue is a heterogeneous mixture of label-be-unique nucleic acid components. And that's the principle that you're in the second case. That was a positive one. That's true. But I guess I'm glad you're arguing this case together because I was a bit confused. I mean, it seems to be on the first case the P.I. were focusing on the morphologically term. If we were to cut that, if we were to construed that term as the district court judge, why doesn't that also resolve the motion for summary judgment? I mean, certainly a motion for summary judgment were arguing all about heterogeneous. But that other term appears in the patents. If we were to re-check that, if we could just record a judge under construction of that term, does that just suppose both cases? It does not. It actually would solve nothing because in our view, under either construction of morphologically identifying the cell nucleus, there are factual issues to be determined. But is it unique in both patents? No. It's only in the 479 patent, you know, the 479 patent. 479 patent is in both cases. Awesome. Yes it is

. But the issue of climate on crimson question, question together on the preliminary judges question. That's true. Actually one on the slide, yes. I agree with that. But I don't know what to say. Just a minute ago, yes, of course, question. I was really right. I mean, there are factual issues in the construction. Can morphologically identify what you said? Yes, remember, that term was only construed at the preliminary junction stage. Would you be seeing it in printment? That's how you passed the elastic PI. And given her construction, you can see that in printment, right? No, I don't think we did, John. There was no concession of infringement on morphologically identifiable cell nucleosome with district courts interpretation. In fact, I think the facts as they turn out is even when using DACA's method, a significant percentage of their cells, even a significant percentage of their cells, I think it's 14 to 20 percent, still would meet the definition and narrow definition at the district court gave that term. So there would still be term. There was no summary judgment ruling relating to the term morphologically identifiable cell nucleosome. This is a PI issue only. The court never reached that term on summary judgment. In fact, there were expeditated spline back and forth on summary judgment on that issue, which presumably, while the district court did not reach that issue on summary judgment. So now with respect to the term heterogeneous mixture of labeled unique nucleic acid fragments, I mean, it's in this. The district court held that the heterogeneous mixture was comprised only of unique sequences. It could not include repetitive sequences. But five dependent claims. Didn't you argue in response to a rejection that unique sequence in play-passed fragments are contrast with the three of the standard sequence in play-passed? You're on an other one. We didn't argue that, but that relates to a different issue

. All that related to is to find what a unique fragment is. A unique fragment is a fragment which the defendants don't have, because they have repetitive sequences. That's not correct, you know. Defendants have, in their heterogeneous mixture, they have two components. One component is a heterogeneous mixture of unique fragments. You need fragments that have different sizes and different phase pairs. They also have repetitive sequences, so they have combinations of repetitive sequences and unique sequences in their heterogeneous mixture. The district court ruled that that wouldn't infringe because the tournament issue here excludes any situation where you have both unique and repetitive sequences. That, of course, contradicts quite squarely. Five dependent claims. If you've been met a cyclone, you started off by talking about what a great invention is for, and how monumental it is. And it seems to me reading the summary of the invention in the abstract that you've said, principal cause of non-specific binding or repetitive basic sequences. I mean, it reads as if what even vetted it here allows you to get around it. It is in monocene sequences. Why am I wrong? Well, because there are situations where there's two ways to avoid the noise. I mean, here's what happened in the prior era. In the prior era, if you tried to look at a single cell nucleus and you saw a signal in that nucleus, you couldn't distinguish between the signal and the noise. So you've got 10 piece of 10 signals. You had no way from looking at a single cell to determine whether it was a single or no. Now, we've come along, and for the first time ever, when you look at a signal and a single cell, you know it's a true signal. It's not a false positive. And that was really the monumental advance. How do we do that? Two ways. One is, in the prior era, the focus was on using homogenous, unique fragments that were all the same

. Why? Because they figured if you only use one single unique fragment, you'd get less noise. If you use a bunch of different unique fragments, you'd get more noise. Well, we went the opposite direction of the art, and we decided to use a complex mixture of unique fragments, which increased the signal way out. But to overcome the problem with increasing the noise, we talked about three countermeasures, two of which involved eliminating the repetitive sequences from the heterogeneous mix. But one of which, the blocking method, involved having the repetitive sequences in the mix, but blocking them. So the blocking method comes from a 841 block, and those three methods were an 841. During both times, the pattern shares specs. They're the same specification. Well, I'm not sure they ever saw the grease with that. I guess, well, the long known is they do or not. Let me ask you. You're the ones that added unique sequence to the prosecution history. You were facing a one-to-two rejection and a one-to-one rejection. And it was unclear to be, particularly near great reason after we've gone through the red-leafed arguments of the prosecution history, what is your specific answer to why that term is included? It's not what it would be that it's a pun. It's this. The examiner raised three rejections to the then existing claim. One-to-one rejections and prior one or two rejections. The original claimer honor actually covered using label repetitive sequences to detect repetitive sequences. So in the prosecution, the examiner said, and he focused on two pieces of prior, landageant and my gun, and this is it, supplemental appendix, 6613, I heard you were reading. What the examiner said is, hey, these two pieces of prior art use label repetitive sequences to detect repetitive sequences and your claim is brought enough to cover that. So in response, we amended our claim to talk about using a heterogeneous mixture of unique segments to detect unique sequences. And so we were just saying, listen, we're not covering and detecting repetitive sequences, we're covering and detecting unique sequences. And so that's why we did it. But that's not what the claim is

. I mean, the claim as it comes out that having unique sequences isn't limited in the way you just described, is it? Well, no it is because now we say in the claim that we are detecting, we're using labeled unique fragments to detect unique sequences. And that distinguishes the prior art use of... Can you show me that with the claim language? Sure. 479 patent, go claim one. That phrase, okay, so we're looking at, like, well, comm16. Comm16, right? 109, 10, whatever. So under A, you see providing a heterogeneous mixture of labeled unique sequence nucleic acid fragment, you see that? And then if you go to about two lines down, you'll see four which detection is desired. You see that four which detection is desired? Yeah. So all we were doing is distinguishing art that used labeled repetitive sequences to detect repetitive sequences. And we said, that's not our invention. Our invention is using labeled unique to detect unique. But in no circumstance, did we say that that heterogeneous mixture excluded the possibility of having repetitive sequences in the mixture? Not only did we not say that, we came along and added claims, including claim 12, with states, where in the heterogeneous mixture further comprises repetitive sequences. There's five dependent claims that require the inclusion of repetitive sequences. But our cases, unfortunately, for you, that's not a just despositive necessarily, we cannot agree with respect to our case law. On your case law, if you can talk about, we're not going to let the dependent claim tail wagging independent claims off the dog and that's what you think. So I understand your point, but it's not really despositive in terms of our case law. I actually think it might be despositive. And if it's not despositive, it's a super, super, super presumption. Here's why. This is not a traditional claim differentiation issue. Traditionally what you're looking at is a situation where you have an independent claim, you're asking yourselves whether a dependent limitation should be implicitly incorporated into the independent claim. In that circumstance, say that happens

. The dependent, stressed dependent limitation becomes redundant, superfluous. But at least the independent claim and the dependent claim are consistent with one. Why was claim 1, a man in relation to the introduction of claim 2 out? Which property was a original claim? October of 1995 is a, I believe when we amended the claim and put the unique circumstances. And about a year later, we added the dependent claims which made it crystal clear that the mixture could include the petitive sequences. And why did you give it a just claim? I don't know if it was their terminal. The terminal disfembers what, but right about that time I think it was about a year or so later. But remember here, but that's why this is not a tradition case. We have found no case. They had said no case where this court has ever endorsed, construed an independent claim in a way that contradicts and expresses limitation in an independent claim. That was a bird. Well, let's hope this is into one. I can't give you back knowledge of the claim between these two cases. This is a separate case. Let's assume hypothetically that. And I asked you this, that before I didn't get to the answer, we're getting asked a quick question. But that's a similar way we agree with you on the energy industry. But if you've the district court on her construction on more the logic, where does that mean that's the next case? It gets remanded back down to the district court with a new construction of more philosophically identified with cell nucleus. And then we say there's still a dispute. We said there's still a thousand. That's not the infringement question. What about the Kennedy-Konk claim is still weird case because it's up here in the National Law. There's nothing else. Yeah, with any concrete claims of invalidity, of any heterogeneous decisions? I think there's pending counter claims of invalidity on the claims in both patents. I think that's true

. Yes. Does the morphological relationship? I would agree with that. I mean, dictionary definition of a morph, let's turn to the morphologically identified cell nucleus issue. But just one last closing point on the heterogeneous mission before I do, if I can test your patients here. What do you want to engage in a repetitive sequence? You're on here's one thing to keep in mind. This is not such, the district court said we've disliked heterogeneous measures with repetitive sequences. But remember the patent office disagrees with that. This is a situation where the patent office focused on the dependent claims. Here's what the examiner said. The proposed amendment to add claims includes limitations directed to disabled repetitive sequences via the blocking we played as a method. So the examiner absolutely positively recognized we did not display what the district court found that we'd display. So this should not be the first time in history on this record to hold that a dependent claim can be construed to exclude what a dependent claim requires. To your question, thank you for your patience. The dictionary definition of morphological is biological or an imagined structure before. That's what it is. And that's what we're construing the term morphologically identified a structural in which it's a biological organism structure in form. Yeah, that's the picture you can pull it up on the internet. We are construing the term morphologically identified with cell nucleus according to its ordinary meaning, identified with, recognizable. That's all. The district court has held that in order to be a morphologically identified with cell nucleus, it has to have a full set of chromosomal DNA. A lot of things wrong with that, but the first thing and the most obvious thing that's wrong with that is it's absolutely and cannot be treated. Why? Under normal conditions, when you look at a cell and you're trying to identify with a microscope what amounts to a cell nucleus, when that cells in the interface, you can't see the DNA. You cannot possibly see it. So it has the same morphological shape it can irrespective of the particular DNA

. That's exactly what I'm trying. It helps you not one way to recognize or identify a cell nucleus by focusing on whether it has a full set of chromosomal DNA or not, because you can't see it. And that agrees with this. Now you remember with their maps of they just slice and they slice the cells. So they say for most of their cells, we don't say all we disagree with all of them, but for most of the cells they lose chromosomal DNA. Now, nevertheless, in their product instructions, what they tell people when they're looking for signal within their cells, they say, count the cells where nuclear morphology must be attacked when about a minute. Nuclear morphology must be intact when about a minute. And disregard cells with poor nuclear morphology. So what they're saying is regardless of whether you can see the chromosomal DNA or not, they can't. They're recognizing that the cells in their system are, in fact, morphologically identified with cell nucleus. And this is completely consistent with the patent record. Here's what the examiner said. We disagree with you on the summary just, but the non-acglidment patent for is 1334s denial of a preliminary junction. Luke, aside from perhaps claim construction issue? It's not Luke, because there's no final judgment, therefore the PI remains alive issue. But I think you're on the way, the proper way to proceed here is the district court rule out. But if you move the virus, the PI is concerned. Oh, I'm sorry, I'm sorry. So it continues. Would the case continue? I think there are kind of constructulations. If you affirm the summary judgment of non-increasing, non-increasing, on both patents, I believe the actual would be at that moment. I take that back. Yeah, I take that back. There's, they have multiple products. Only two of the products have been finally duicated on some rejection

. 20 other products have not, so it would not move the PI around. I'm sorry. I'm sorry. Well, right now it's easy. Two claim construction issues and a fast issue. That's what we really are here to get the resolution on. Now, in addition to claim being a morphologically recognizable identifiable cell, Luke, this favorite nest, we look at the patent records completely consistent. What the examiner said, when talking about this very term, is identify the cell loop Leon, or identify by observation of a nuclear membrane in a sample. That's what we say. Not that about chromosome DNA being a closer bit. We also said during prosecution that we wanted the target DNA in some natural biological structure, but we said this structure may be partially destroyed to allow good hybridization. So it doesn't have to be a fully intact cell. We go on to say in our specification that when you treat the cells, in short, there's no unacceptable loss of morphological detail. So throughout the patent record recognizes you don't have to have a fully intact cell. But here's what's really, really despositive. Common 10 lines 30, 31, 4, 7, 9, and packs. Has a section entitled, in situ hybridization. And it says this. In talking about the methods that are contemplated by this patent, it says, several excellent guides to the technique are available. Where are you from Common 10? Common 10, what line was that? Common 10, 30, 9, 30. Okay. You see what says here? We'll talk. Yes. Okay, several excellent guides to the technique are available

. And then we cite two articles. Gal and Pardew and we also cite Andrew. A and G E R is the line 37. Andrew is all about tissue sectioning exactly what Daco does. It's talking about cells slicing where you're clearly going to lose from the DNA for a large percentage of the cells. Here's what Andrew says in page 47 of its article. By the way, this article is incorporated by reference into the specification. So it's as if it's set for fully, here's what the article says. It's talking about tissue section. Sections are usually cut 5 to 10 microns thick. That's what Daco does. In our experience, paraphim in venom provides relatively good morphology. Relatively good morphology. I don't know what you're going to get for. I appreciate how that in the four minutes per to get to 25. Moreover, there's another reference to the site, which is the, we talked about these in our brief, the the gradi article. It also talks about slicing cells, 5 microns, where you're going to lose some chromosol DNA. And what it says is that these are conditions where significant morphological details retain. So the patent record is completely consistent with what your gut tells you about the plain meaning of morphologically identified with cell nucleus. We didn't set it morphologically intact cell nucleus. We said identify them, recognizable. And doctors own product literature, recognize that it's some nuclei of recognizable. Now, when you're talking about this morphologically identifiable and great, really part of the argument about back matter, the effects still be at the end of the issue. Is that on the principle of that? What is that? And the construction of the test. Clearly, the construction of the term amazing dispute. We got the data in fact. There is actually a factual dispute as well. Because at the PI stage, we lost them at district court all. No, but the court, this court has said it's a patch. It's not a real patch, your own manners, your own, the claim is rough. Clearly, the legal matter. You're absolutely right, Toronto. And I understand that completely. You would say what are you saying? All I'm saying is what are you concerned about our, our, our, our region? Because of the patch, I think. What is it that's concerning you? Judge Prost asked with the whole case be over if this court agreed with the district judge's legal interpretation and morphologically identifiable cell nucleus. And I said the answer you know, the case wouldn't be over. Because there would remain factual issues to resolve down the level, not for this court. If you agree with my interpretation and morphologically identifiable cell nucleus, there is no longer any issue at all on infringement with respect to that. The court's case is not a certified issue. No, it wasn't a final charge. True, right. And that's what would be remained once the plaintiff's truck's issues was up. Final, the best issue, let me take a couple of minutes into my revolve. Here's the issue. There's no literal infringement of the H-41 patent because we require, do you mind talking about time, so I can plan properly? You got to have a patent on your 25th. Thank you. Well, you're on your own. The case that the wasn't that your place has it was your issue

. Clearly, the construction of the term amazing dispute. We got the data in fact. There is actually a factual dispute as well. Because at the PI stage, we lost them at district court all. No, but the court, this court has said it's a patch. It's not a real patch, your own manners, your own, the claim is rough. Clearly, the legal matter. You're absolutely right, Toronto. And I understand that completely. You would say what are you saying? All I'm saying is what are you concerned about our, our, our, our region? Because of the patch, I think. What is it that's concerning you? Judge Prost asked with the whole case be over if this court agreed with the district judge's legal interpretation and morphologically identifiable cell nucleus. And I said the answer you know, the case wouldn't be over. Because there would remain factual issues to resolve down the level, not for this court. If you agree with my interpretation and morphologically identifiable cell nucleus, there is no longer any issue at all on infringement with respect to that. The court's case is not a certified issue. No, it wasn't a final charge. True, right. And that's what would be remained once the plaintiff's truck's issues was up. Final, the best issue, let me take a couple of minutes into my revolve. Here's the issue. There's no literal infringement of the H-41 patent because we require, do you mind talking about time, so I can plan properly? You got to have a patent on your 25th. Thank you. Well, you're on your own. The case that the wasn't that your place has it was your issue. That's the blocking aspect. Well, that's a natural issue. There's no literal infringement, not because of the blocking aspect of the news. You remember, there's no dispute at all that DACO uses the same blocking method that are patent-sucks. They just replace DNA with PNA. That's all they do. Look, two things. One is fast-zoved, the fast-zovere presumption is supposed to be identified, looked at on a limitation by the limitation basis. So that means you should be focusing on whether the limitation at issue was narrowed. Here, there's no dispute that they use the blocking method, the only dispute is whether PNA is equivalent to DNA. We say it is, I can play a cast that wasn't narrowed. It wasn't narrowed. It was in there from the beginning. Every claim from the beginning of time had new Cliac acid in it. And we never narrowed it. We could, for instance, we could have used the term blocking component and narrowed it to new Cliac acid. But we never ever did that. So we never narrowed new Cliac acid. Because we never narrowed new Cliac acid, there is no fast-zovere presumption to overcome. The second issue in tangentiality, just very briefly, the reality here is there was never any issue in the prosecution history, which remotely signaled to anyone and put an ambulance radar screen that we were dealing with the distinction between natural DNA and synthetic DNA. It just never happened. The only issue before the examiner at the time was distinguishing prior art methods of selection, unique fragment only mixers, versus blocking. There was never any issue about what you blocked with. So it's a completely different aspect of the invention that is an issue here with respect to equivalents

. That's the blocking aspect. Well, that's a natural issue. There's no literal infringement, not because of the blocking aspect of the news. You remember, there's no dispute at all that DACO uses the same blocking method that are patent-sucks. They just replace DNA with PNA. That's all they do. Look, two things. One is fast-zoved, the fast-zovere presumption is supposed to be identified, looked at on a limitation by the limitation basis. So that means you should be focusing on whether the limitation at issue was narrowed. Here, there's no dispute that they use the blocking method, the only dispute is whether PNA is equivalent to DNA. We say it is, I can play a cast that wasn't narrowed. It wasn't narrowed. It was in there from the beginning. Every claim from the beginning of time had new Cliac acid in it. And we never narrowed it. We could, for instance, we could have used the term blocking component and narrowed it to new Cliac acid. But we never ever did that. So we never narrowed new Cliac acid. Because we never narrowed new Cliac acid, there is no fast-zovere presumption to overcome. The second issue in tangentiality, just very briefly, the reality here is there was never any issue in the prosecution history, which remotely signaled to anyone and put an ambulance radar screen that we were dealing with the distinction between natural DNA and synthetic DNA. It just never happened. The only issue before the examiner at the time was distinguishing prior art methods of selection, unique fragment only mixers, versus blocking. There was never any issue about what you blocked with. So it's a completely different aspect of the invention that is an issue here with respect to equivalents. And I'll reserve the remainder of my time for a bottle. I did under the desk too. Yeah. What about? It's still 0. Sorry. I can do it. I can do it. I don't usually have this one. May I please support you? Let me begin by recommending one statement that my adversary made during his argument. And that question was asked if the summary judgment is firm, would that move the PI? And the answer is it wouldn't move the PI. It is true that there are a couple of or several minor products that were not encompassed by the summary judgment as it related to the E4-1 patent. But those products were not an issue in the PI. There was only one product that was an issue after the PI. The same with the P2 product. The P2 I as far as it goes. Yes. Yes. The PI was only directed to the P2 product and the summary judgment rulings found no infringement for the expected of the P2 product. Both asked for the P4-7 patent and asked to the E4-1 patent. But the other question that we would to inform the PI in the claim construction of the P2-1 patent. First, on the patent, do you use the stock to remove the patent? That leaves us with probably the court having to address our motion for summary judgment on more philosophies than a Bible cell nucleus. What did the district court? We did raise that as a basis for our summary judgment motion. That claim language does appear in both patents. The court did not reach that issue

. And I'll reserve the remainder of my time for a bottle. I did under the desk too. Yeah. What about? It's still 0. Sorry. I can do it. I can do it. I don't usually have this one. May I please support you? Let me begin by recommending one statement that my adversary made during his argument. And that question was asked if the summary judgment is firm, would that move the PI? And the answer is it wouldn't move the PI. It is true that there are a couple of or several minor products that were not encompassed by the summary judgment as it related to the E4-1 patent. But those products were not an issue in the PI. There was only one product that was an issue after the PI. The same with the P2 product. The P2 I as far as it goes. Yes. Yes. The PI was only directed to the P2 product and the summary judgment rulings found no infringement for the expected of the P2 product. Both asked for the P4-7 patent and asked to the E4-1 patent. But the other question that we would to inform the PI in the claim construction of the P2-1 patent. First, on the patent, do you use the stock to remove the patent? That leaves us with probably the court having to address our motion for summary judgment on more philosophies than a Bible cell nucleus. What did the district court? We did raise that as a basis for our summary judgment motion. That claim language does appear in both patents. The court did not reach that issue. Okay. And that there's some flag of this question that we expected infringement asked about. So that we couldn't disclose. Yes. The appellants did raise argue that there were dispute issues in fact there. We don't agree that there are, but they certainly were raised along. Tell us for a unique sequence is not 10 miles to the world. It's free of repetitive sequence in the claim of patents. Why? Why it's free of code? Well, your comment says it doesn't exclude. Well, it excludes them of your honor because when that claim language was added, it's extremely important to look at the context in which that claim language was added. The claim at that point in time just claimed that he had a genius mixture of labeled and labeled as patents. And it did not have any limitation to block. And the examiner properly pointed out that that claim as written had no procedure, no structure, no composition to disable the repetitive sequences. And so they added the unique sequence to overcome had a naval interjection. And the only way that that would deal with the repetitive sequence problem is if you meet means only unique. It means no repetitive sequences. The invention here really is directed to the problem of if you have a DNA probe that you want to buy to a target. How do you make sure that it just binds to the target and not to all the other DNA which has all the repetitive sequences? Yeah, let's just do methods. And you're prevailing on this is dependent on ours are construing a 4.7-9-1-1-1-2-3-9. Correct. Correct. And I mean, it's difficult. Because of the dependent claim

. Okay. And that there's some flag of this question that we expected infringement asked about. So that we couldn't disclose. Yes. The appellants did raise argue that there were dispute issues in fact there. We don't agree that there are, but they certainly were raised along. Tell us for a unique sequence is not 10 miles to the world. It's free of repetitive sequence in the claim of patents. Why? Why it's free of code? Well, your comment says it doesn't exclude. Well, it excludes them of your honor because when that claim language was added, it's extremely important to look at the context in which that claim language was added. The claim at that point in time just claimed that he had a genius mixture of labeled and labeled as patents. And it did not have any limitation to block. And the examiner properly pointed out that that claim as written had no procedure, no structure, no composition to disable the repetitive sequences. And so they added the unique sequence to overcome had a naval interjection. And the only way that that would deal with the repetitive sequence problem is if you meet means only unique. It means no repetitive sequences. The invention here really is directed to the problem of if you have a DNA probe that you want to buy to a target. How do you make sure that it just binds to the target and not to all the other DNA which has all the repetitive sequences? Yeah, let's just do methods. And you're prevailing on this is dependent on ours are construing a 4.7-9-1-1-1-2-3-9. Correct. Correct. And I mean, it's difficult. Because of the dependent claim. It's because I mean, why do dependent claims? And I think I, one thing I want to be responsive to is your colleagues' reference to this need not being your typical claim differentiation case. That here, I mean, I see what you said. And I want to know if you disagree. That here it's not just a matter of differentiation. Here to constru the patent otherwise, to constru the independent claim to just consist of unique sequences would completely initiate the dependent claim. It would have put the patient claim that you know of them. Well, I don't know if we've allowed that to happen. I can't say that there's a case that has addressed that in so many words. But in many claim differentiation cases, what you are effectively doing is reading out claim language and saying that claim really doesn't matter. Or when you have any type of disclaimer case, you can have clear claim language. And then during the course of prosecution history, you can display in subject matter. So this case is no different than those types of cases where something that appears to be claimed. In fact, it's not because it's been disclosed during the course of prosecution. This claim... Climb 12 was added after claim 1 was admitted. Two and a half years after claim 1 was admitted. As I said, as you pointed out as a proce, there are three methods claimed here of getting rid of the repetitive sequences. Two of them really remove the repetitive sequences from the probe mixture. One of them deals with blockage. And so I look at those as really as two different methods. One of them is to get rid of the repetitive sequences. The other is to block the repetitive sequences

. It's because I mean, why do dependent claims? And I think I, one thing I want to be responsive to is your colleagues' reference to this need not being your typical claim differentiation case. That here, I mean, I see what you said. And I want to know if you disagree. That here it's not just a matter of differentiation. Here to constru the patent otherwise, to constru the independent claim to just consist of unique sequences would completely initiate the dependent claim. It would have put the patient claim that you know of them. Well, I don't know if we've allowed that to happen. I can't say that there's a case that has addressed that in so many words. But in many claim differentiation cases, what you are effectively doing is reading out claim language and saying that claim really doesn't matter. Or when you have any type of disclaimer case, you can have clear claim language. And then during the course of prosecution history, you can display in subject matter. So this case is no different than those types of cases where something that appears to be claimed. In fact, it's not because it's been disclosed during the course of prosecution. This claim... Climb 12 was added after claim 1 was admitted. Two and a half years after claim 1 was admitted. As I said, as you pointed out as a proce, there are three methods claimed here of getting rid of the repetitive sequences. Two of them really remove the repetitive sequences from the probe mixture. One of them deals with blockage. And so I look at those as really as two different methods. One of them is to get rid of the repetitive sequences. The other is to block the repetitive sequences. The 841 pattern deals with blockage. The 479 pattern, the pattern with the heterogeneous mixture of labeled unique sequences, gets rid of the repetitive sequences. Either by in the way you make them or actually pulling them out onto the mixture once you make the mixture. But you have a pro-mixer of just unique sequences, no repetitive sequences, so it then won't bind to everything else. You don't need the blockage. But if you don't have that, if you don't have a unique mixture, then you're going to get not specific binding. And you're not going to achieve the objects of the invention. That's what the invention is all about. But there's a terminal to slay and we're having a bit of cloud. There wasn't a terminal to slay for a while. They have the same specification. They do have the same specification. Well, here as you just slide it, the two are entirely different. One does one thing, and the other does the other thing. That's correct, Your Honor. And that's how we read it. I mean, the one application, the blocky-declare asset pattern, is you. And then at that point, a divisional application was filed. And it's been... The 191 application disposes two inventions that the claim is separate from. Yes. The claim is separate

. The 841 pattern deals with blockage. The 479 pattern, the pattern with the heterogeneous mixture of labeled unique sequences, gets rid of the repetitive sequences. Either by in the way you make them or actually pulling them out onto the mixture once you make the mixture. But you have a pro-mixer of just unique sequences, no repetitive sequences, so it then won't bind to everything else. You don't need the blockage. But if you don't have that, if you don't have a unique mixture, then you're going to get not specific binding. And you're not going to achieve the objects of the invention. That's what the invention is all about. But there's a terminal to slay and we're having a bit of cloud. There wasn't a terminal to slay for a while. They have the same specification. They do have the same specification. Well, here as you just slide it, the two are entirely different. One does one thing, and the other does the other thing. That's correct, Your Honor. And that's how we read it. I mean, the one application, the blocky-declare asset pattern, is you. And then at that point, a divisional application was filed. And it's been... The 191 application disposes two inventions that the claim is separate from. Yes. The claim is separate. It was a divisional case, not by virtue of a restriction requirement by the examiner, but simply by virtue of the applicant deciding that they were going to claim the blocking method in one pattern. And then they were going to claim the other method of disabling the unique repetitive sequences in the other pattern. And that is to use a mixture of unique sequences. As I said, if you don't get repetitive sequences out of the mix, and you don't have blocking, it won't work. And that the examiner recognized that, issued the enablement projection. They came back then and amended the claim, said, okay, we put in unique sequences, and, you know, that was the way they overcame the enablement projection. The examiner came back later and said, well, I've got a problem with unique sequences and exactly what it means. It's a definite. And then at that point, they came back and they said, unique means free of repetitive sequences. And then they refer, when they said that, they cited back to the specification. And they cited to the part of the specification, which said that preferably the heterogeneous mixture is substantially free of repetitive sequences. So it's morphological to shape or having the same type of it to be unique. We think it believes it relates to not just shape, but also having an intact nucleus in the sense that you have all the chromosome, the chromosome, the uncut nucleus. It's the same both. Yes. But it has to, if you look at prosecution history in some of the statements that were made, in connection with this terminology, they argue that the target DNA is in some biological structure and the features of the structure relative to the desired measurement or not destroyed. In our case, we slice the... Here's a paraphernal bed tissue sample, slice it and get very thin, slanted sand hole. And then when you look at it, after you're standing, you don't know what you've got there. If you're looking through the microscope, you can't tell whether you're looking at a partial cell or a whole cell. I mean, almost all of the partial cells. But if it looks the same, you're concluding the eventual conclusion to the business sentence, right? More from logical and general

. It was a divisional case, not by virtue of a restriction requirement by the examiner, but simply by virtue of the applicant deciding that they were going to claim the blocking method in one pattern. And then they were going to claim the other method of disabling the unique repetitive sequences in the other pattern. And that is to use a mixture of unique sequences. As I said, if you don't get repetitive sequences out of the mix, and you don't have blocking, it won't work. And that the examiner recognized that, issued the enablement projection. They came back then and amended the claim, said, okay, we put in unique sequences, and, you know, that was the way they overcame the enablement projection. The examiner came back later and said, well, I've got a problem with unique sequences and exactly what it means. It's a definite. And then at that point, they came back and they said, unique means free of repetitive sequences. And then they refer, when they said that, they cited back to the specification. And they cited to the part of the specification, which said that preferably the heterogeneous mixture is substantially free of repetitive sequences. So it's morphological to shape or having the same type of it to be unique. We think it believes it relates to not just shape, but also having an intact nucleus in the sense that you have all the chromosome, the chromosome, the uncut nucleus. It's the same both. Yes. But it has to, if you look at prosecution history in some of the statements that were made, in connection with this terminology, they argue that the target DNA is in some biological structure and the features of the structure relative to the desired measurement or not destroyed. In our case, we slice the... Here's a paraphernal bed tissue sample, slice it and get very thin, slanted sand hole. And then when you look at it, after you're standing, you don't know what you've got there. If you're looking through the microscope, you can't tell whether you're looking at a partial cell or a whole cell. I mean, almost all of the partial cells. But if it looks the same, you're concluding the eventual conclusion to the business sentence, right? More from logical and general. But the invention is about being able to play a fantastic sequence. Well, with respect to the morphological identifiable, the invention is about being able to look at a cell and being able to determine whether or not you have extra chromosome or missing chromosome. Or some other deep-back. And you can only do that if you have an intact cell. To be able to do this in hybrid, this same situational... The same way you use the wrong word. I'm not sure what's where you're referring to. Well... But depends upon what's inside the cell rather than this external appearance. In our view, it depends on both. The morphologically means you have to have a cell that includes the decronosome inside. Now, they do talk about, mention the fact that the patent talks about some loss of structure. But the kinds of loss of structure that we think they're talking about with an education is simply some damage to the membrane. Certainly, they're not talking about loss of structure as far as removing chromosome of DNA. The only way you can evaluate a cell where you have a loss of chromosome of DNA is to use multiple probes and then to look at a large section of cells. And then count how many probes you have in a certain area and to do a ratio of the ones that are binding to the target sequence and the ones that are binding to another sequence and then see if you've got an application. But you can't do it on a cell by cell basis, which is what they are during the course of their constitution, that their method would allow them to do it. Additional questions? I would say you're morphologically different from your opponent. What can you have from the 99.99% of the same DNA? I hope it's at least that one

. But the invention is about being able to play a fantastic sequence. Well, with respect to the morphological identifiable, the invention is about being able to look at a cell and being able to determine whether or not you have extra chromosome or missing chromosome. Or some other deep-back. And you can only do that if you have an intact cell. To be able to do this in hybrid, this same situational... The same way you use the wrong word. I'm not sure what's where you're referring to. Well... But depends upon what's inside the cell rather than this external appearance. In our view, it depends on both. The morphologically means you have to have a cell that includes the decronosome inside. Now, they do talk about, mention the fact that the patent talks about some loss of structure. But the kinds of loss of structure that we think they're talking about with an education is simply some damage to the membrane. Certainly, they're not talking about loss of structure as far as removing chromosome of DNA. The only way you can evaluate a cell where you have a loss of chromosome of DNA is to use multiple probes and then to look at a large section of cells. And then count how many probes you have in a certain area and to do a ratio of the ones that are binding to the target sequence and the ones that are binding to another sequence and then see if you've got an application. But you can't do it on a cell by cell basis, which is what they are during the course of their constitution, that their method would allow them to do it. Additional questions? I would say you're morphologically different from your opponent. What can you have from the 99.99% of the same DNA? I hope it's at least that one. So, any additional questions or we'll rely on a break shot? Just a very brief example of a point. It's a clear and unmistakable disclaimer-during prosecution. The council talked about the extremes that occurred in October of 1995, these three rejections, these three amendments to the claims and there was no discussion of mashing and wanting to another. We have a reasonable interpretation of that exchange and therefore that alone should say there's no clear and unmistakable disclaimer, but more importantly, you have to look at the entire patent record as it exists when the claims are issued, which would include the exam or summary where he recognized that getting our dependent claims, the heterogeneous mixture could in fact include repetitive sequences. We've asked about that. It's clear to you that a clear and unmistakable, disavowable is necessary. Assume for a second that we've got clear claim language that says unique sequences. Assume we don't buy your interpretation of the word all. You've got clear independent claim language that's saying unique sequences. Why does there have to be an expressed subalong with prosecution history even with claims? Well, I think if you actually look at the claims as a whole including how the dependent claims help you analyze claim one, I don't know how the claim language of the claims could mean anything other than what I say it means because we use the word of in claim one interchangeably with comprises in claim 12. They mean the same thing in a context of these claims. So the claim language plainly allows for repetitive sequences, which is why the other side is relying on what they turned to clear non-instakable disclaimer and argument that can't be reconciled with the fact that patent was plain and recognized that we could in fact have repetitive sequences and repetitive genus mixture. Last but not the point on the morphologically identified as cell nucleus. The notion that losing some chromosome DNA somehow takes the cells outside the scope of our claims can't be reconciled with the final. Even when you work with whole cells, okay, you're not slicing them up like Docoducts, you're still going to lose chromosome DNA. Why? You have to open the cell to get access to it for hydrization. You've got to take proteins out. It's in the record SA 9650 slide 15. No matter what method you use, you're going to lose some chromosome DNA. So that interpretation of the claims, acquiring a full set of chromosome DNA really can't be reconciled with reality. If there are no further questions, that's all I have. Thank you, Mark. All rise.

Three, two, four, one, two, zero, two. Beans, rivers, decals, and even roof. That was a sight donation. Check. Okay. Here's your brush. And please the coat. My name is Jim Hurst. I'm here on the behalf of the Regents and also out of loud the toys. The case is the timer. We have a little confusion. There's two of teams up at once. And we range to 25 hands. I don't think it's welcome to get it because there's overlocking issues. So I've been learning financial levels to be 25 and 5. So the right pick here. No, that's not me. Just a joke. No, sitting at zeroes. What does it mean you have a number of them in the top? When we just write it out here, I'll be sure you don't write. It would be helpful playing in the purposes of it. Well, honestly, so. The patents in this case relate to award-winning work. Work that the American Society of Human Genetics has called Far Reaching and Revolutionary. Do you know whether or not. Well, that's George Scott. And it is. We've got this idea of the plan. And it is. But the key here is the district code in this case can be screwed by claims and ways that really undermine the narrative of the patents and ways that we don't leave a very moving ball. There's two claim construction issues here. And also a fast solution. With respect to the first claim construction issue, the claim term of issue is a heterogeneous mixture of label-be-unique nucleic acid components. And that's the principle that you're in the second case. That was a positive one. That's true. But I guess I'm glad you're arguing this case together because I was a bit confused. I mean, it seems to be on the first case the P.I. were focusing on the morphologically term. If we were to cut that, if we were to construed that term as the district court judge, why doesn't that also resolve the motion for summary judgment? I mean, certainly a motion for summary judgment were arguing all about heterogeneous. But that other term appears in the patents. If we were to re-check that, if we could just record a judge under construction of that term, does that just suppose both cases? It does not. It actually would solve nothing because in our view, under either construction of morphologically identifying the cell nucleus, there are factual issues to be determined. But is it unique in both patents? No. It's only in the 479 patent, you know, the 479 patent. 479 patent is in both cases. Awesome. Yes it is. But the issue of climate on crimson question, question together on the preliminary judges question. That's true. Actually one on the slide, yes. I agree with that. But I don't know what to say. Just a minute ago, yes, of course, question. I was really right. I mean, there are factual issues in the construction. Can morphologically identify what you said? Yes, remember, that term was only construed at the preliminary junction stage. Would you be seeing it in printment? That's how you passed the elastic PI. And given her construction, you can see that in printment, right? No, I don't think we did, John. There was no concession of infringement on morphologically identifiable cell nucleosome with district courts interpretation. In fact, I think the facts as they turn out is even when using DACA's method, a significant percentage of their cells, even a significant percentage of their cells, I think it's 14 to 20 percent, still would meet the definition and narrow definition at the district court gave that term. So there would still be term. There was no summary judgment ruling relating to the term morphologically identifiable cell nucleosome. This is a PI issue only. The court never reached that term on summary judgment. In fact, there were expeditated spline back and forth on summary judgment on that issue, which presumably, while the district court did not reach that issue on summary judgment. So now with respect to the term heterogeneous mixture of labeled unique nucleic acid fragments, I mean, it's in this. The district court held that the heterogeneous mixture was comprised only of unique sequences. It could not include repetitive sequences. But five dependent claims. Didn't you argue in response to a rejection that unique sequence in play-passed fragments are contrast with the three of the standard sequence in play-passed? You're on an other one. We didn't argue that, but that relates to a different issue. All that related to is to find what a unique fragment is. A unique fragment is a fragment which the defendants don't have, because they have repetitive sequences. That's not correct, you know. Defendants have, in their heterogeneous mixture, they have two components. One component is a heterogeneous mixture of unique fragments. You need fragments that have different sizes and different phase pairs. They also have repetitive sequences, so they have combinations of repetitive sequences and unique sequences in their heterogeneous mixture. The district court ruled that that wouldn't infringe because the tournament issue here excludes any situation where you have both unique and repetitive sequences. That, of course, contradicts quite squarely. Five dependent claims. If you've been met a cyclone, you started off by talking about what a great invention is for, and how monumental it is. And it seems to me reading the summary of the invention in the abstract that you've said, principal cause of non-specific binding or repetitive basic sequences. I mean, it reads as if what even vetted it here allows you to get around it. It is in monocene sequences. Why am I wrong? Well, because there are situations where there's two ways to avoid the noise. I mean, here's what happened in the prior era. In the prior era, if you tried to look at a single cell nucleus and you saw a signal in that nucleus, you couldn't distinguish between the signal and the noise. So you've got 10 piece of 10 signals. You had no way from looking at a single cell to determine whether it was a single or no. Now, we've come along, and for the first time ever, when you look at a signal and a single cell, you know it's a true signal. It's not a false positive. And that was really the monumental advance. How do we do that? Two ways. One is, in the prior era, the focus was on using homogenous, unique fragments that were all the same. Why? Because they figured if you only use one single unique fragment, you'd get less noise. If you use a bunch of different unique fragments, you'd get more noise. Well, we went the opposite direction of the art, and we decided to use a complex mixture of unique fragments, which increased the signal way out. But to overcome the problem with increasing the noise, we talked about three countermeasures, two of which involved eliminating the repetitive sequences from the heterogeneous mix. But one of which, the blocking method, involved having the repetitive sequences in the mix, but blocking them. So the blocking method comes from a 841 block, and those three methods were an 841. During both times, the pattern shares specs. They're the same specification. Well, I'm not sure they ever saw the grease with that. I guess, well, the long known is they do or not. Let me ask you. You're the ones that added unique sequence to the prosecution history. You were facing a one-to-two rejection and a one-to-one rejection. And it was unclear to be, particularly near great reason after we've gone through the red-leafed arguments of the prosecution history, what is your specific answer to why that term is included? It's not what it would be that it's a pun. It's this. The examiner raised three rejections to the then existing claim. One-to-one rejections and prior one or two rejections. The original claimer honor actually covered using label repetitive sequences to detect repetitive sequences. So in the prosecution, the examiner said, and he focused on two pieces of prior, landageant and my gun, and this is it, supplemental appendix, 6613, I heard you were reading. What the examiner said is, hey, these two pieces of prior art use label repetitive sequences to detect repetitive sequences and your claim is brought enough to cover that. So in response, we amended our claim to talk about using a heterogeneous mixture of unique segments to detect unique sequences. And so we were just saying, listen, we're not covering and detecting repetitive sequences, we're covering and detecting unique sequences. And so that's why we did it. But that's not what the claim is. I mean, the claim as it comes out that having unique sequences isn't limited in the way you just described, is it? Well, no it is because now we say in the claim that we are detecting, we're using labeled unique fragments to detect unique sequences. And that distinguishes the prior art use of... Can you show me that with the claim language? Sure. 479 patent, go claim one. That phrase, okay, so we're looking at, like, well, comm16. Comm16, right? 109, 10, whatever. So under A, you see providing a heterogeneous mixture of labeled unique sequence nucleic acid fragment, you see that? And then if you go to about two lines down, you'll see four which detection is desired. You see that four which detection is desired? Yeah. So all we were doing is distinguishing art that used labeled repetitive sequences to detect repetitive sequences. And we said, that's not our invention. Our invention is using labeled unique to detect unique. But in no circumstance, did we say that that heterogeneous mixture excluded the possibility of having repetitive sequences in the mixture? Not only did we not say that, we came along and added claims, including claim 12, with states, where in the heterogeneous mixture further comprises repetitive sequences. There's five dependent claims that require the inclusion of repetitive sequences. But our cases, unfortunately, for you, that's not a just despositive necessarily, we cannot agree with respect to our case law. On your case law, if you can talk about, we're not going to let the dependent claim tail wagging independent claims off the dog and that's what you think. So I understand your point, but it's not really despositive in terms of our case law. I actually think it might be despositive. And if it's not despositive, it's a super, super, super presumption. Here's why. This is not a traditional claim differentiation issue. Traditionally what you're looking at is a situation where you have an independent claim, you're asking yourselves whether a dependent limitation should be implicitly incorporated into the independent claim. In that circumstance, say that happens. The dependent, stressed dependent limitation becomes redundant, superfluous. But at least the independent claim and the dependent claim are consistent with one. Why was claim 1, a man in relation to the introduction of claim 2 out? Which property was a original claim? October of 1995 is a, I believe when we amended the claim and put the unique circumstances. And about a year later, we added the dependent claims which made it crystal clear that the mixture could include the petitive sequences. And why did you give it a just claim? I don't know if it was their terminal. The terminal disfembers what, but right about that time I think it was about a year or so later. But remember here, but that's why this is not a tradition case. We have found no case. They had said no case where this court has ever endorsed, construed an independent claim in a way that contradicts and expresses limitation in an independent claim. That was a bird. Well, let's hope this is into one. I can't give you back knowledge of the claim between these two cases. This is a separate case. Let's assume hypothetically that. And I asked you this, that before I didn't get to the answer, we're getting asked a quick question. But that's a similar way we agree with you on the energy industry. But if you've the district court on her construction on more the logic, where does that mean that's the next case? It gets remanded back down to the district court with a new construction of more philosophically identified with cell nucleus. And then we say there's still a dispute. We said there's still a thousand. That's not the infringement question. What about the Kennedy-Konk claim is still weird case because it's up here in the National Law. There's nothing else. Yeah, with any concrete claims of invalidity, of any heterogeneous decisions? I think there's pending counter claims of invalidity on the claims in both patents. I think that's true. Yes. Does the morphological relationship? I would agree with that. I mean, dictionary definition of a morph, let's turn to the morphologically identified cell nucleus issue. But just one last closing point on the heterogeneous mission before I do, if I can test your patients here. What do you want to engage in a repetitive sequence? You're on here's one thing to keep in mind. This is not such, the district court said we've disliked heterogeneous measures with repetitive sequences. But remember the patent office disagrees with that. This is a situation where the patent office focused on the dependent claims. Here's what the examiner said. The proposed amendment to add claims includes limitations directed to disabled repetitive sequences via the blocking we played as a method. So the examiner absolutely positively recognized we did not display what the district court found that we'd display. So this should not be the first time in history on this record to hold that a dependent claim can be construed to exclude what a dependent claim requires. To your question, thank you for your patience. The dictionary definition of morphological is biological or an imagined structure before. That's what it is. And that's what we're construing the term morphologically identified a structural in which it's a biological organism structure in form. Yeah, that's the picture you can pull it up on the internet. We are construing the term morphologically identified with cell nucleus according to its ordinary meaning, identified with, recognizable. That's all. The district court has held that in order to be a morphologically identified with cell nucleus, it has to have a full set of chromosomal DNA. A lot of things wrong with that, but the first thing and the most obvious thing that's wrong with that is it's absolutely and cannot be treated. Why? Under normal conditions, when you look at a cell and you're trying to identify with a microscope what amounts to a cell nucleus, when that cells in the interface, you can't see the DNA. You cannot possibly see it. So it has the same morphological shape it can irrespective of the particular DNA. That's exactly what I'm trying. It helps you not one way to recognize or identify a cell nucleus by focusing on whether it has a full set of chromosomal DNA or not, because you can't see it. And that agrees with this. Now you remember with their maps of they just slice and they slice the cells. So they say for most of their cells, we don't say all we disagree with all of them, but for most of the cells they lose chromosomal DNA. Now, nevertheless, in their product instructions, what they tell people when they're looking for signal within their cells, they say, count the cells where nuclear morphology must be attacked when about a minute. Nuclear morphology must be intact when about a minute. And disregard cells with poor nuclear morphology. So what they're saying is regardless of whether you can see the chromosomal DNA or not, they can't. They're recognizing that the cells in their system are, in fact, morphologically identified with cell nucleus. And this is completely consistent with the patent record. Here's what the examiner said. We disagree with you on the summary just, but the non-acglidment patent for is 1334s denial of a preliminary junction. Luke, aside from perhaps claim construction issue? It's not Luke, because there's no final judgment, therefore the PI remains alive issue. But I think you're on the way, the proper way to proceed here is the district court rule out. But if you move the virus, the PI is concerned. Oh, I'm sorry, I'm sorry. So it continues. Would the case continue? I think there are kind of constructulations. If you affirm the summary judgment of non-increasing, non-increasing, on both patents, I believe the actual would be at that moment. I take that back. Yeah, I take that back. There's, they have multiple products. Only two of the products have been finally duicated on some rejection. 20 other products have not, so it would not move the PI around. I'm sorry. I'm sorry. Well, right now it's easy. Two claim construction issues and a fast issue. That's what we really are here to get the resolution on. Now, in addition to claim being a morphologically recognizable identifiable cell, Luke, this favorite nest, we look at the patent records completely consistent. What the examiner said, when talking about this very term, is identify the cell loop Leon, or identify by observation of a nuclear membrane in a sample. That's what we say. Not that about chromosome DNA being a closer bit. We also said during prosecution that we wanted the target DNA in some natural biological structure, but we said this structure may be partially destroyed to allow good hybridization. So it doesn't have to be a fully intact cell. We go on to say in our specification that when you treat the cells, in short, there's no unacceptable loss of morphological detail. So throughout the patent record recognizes you don't have to have a fully intact cell. But here's what's really, really despositive. Common 10 lines 30, 31, 4, 7, 9, and packs. Has a section entitled, in situ hybridization. And it says this. In talking about the methods that are contemplated by this patent, it says, several excellent guides to the technique are available. Where are you from Common 10? Common 10, what line was that? Common 10, 30, 9, 30. Okay. You see what says here? We'll talk. Yes. Okay, several excellent guides to the technique are available. And then we cite two articles. Gal and Pardew and we also cite Andrew. A and G E R is the line 37. Andrew is all about tissue sectioning exactly what Daco does. It's talking about cells slicing where you're clearly going to lose from the DNA for a large percentage of the cells. Here's what Andrew says in page 47 of its article. By the way, this article is incorporated by reference into the specification. So it's as if it's set for fully, here's what the article says. It's talking about tissue section. Sections are usually cut 5 to 10 microns thick. That's what Daco does. In our experience, paraphim in venom provides relatively good morphology. Relatively good morphology. I don't know what you're going to get for. I appreciate how that in the four minutes per to get to 25. Moreover, there's another reference to the site, which is the, we talked about these in our brief, the the gradi article. It also talks about slicing cells, 5 microns, where you're going to lose some chromosol DNA. And what it says is that these are conditions where significant morphological details retain. So the patent record is completely consistent with what your gut tells you about the plain meaning of morphologically identified with cell nucleus. We didn't set it morphologically intact cell nucleus. We said identify them, recognizable. And doctors own product literature, recognize that it's some nuclei of recognizable. Now, when you're talking about this morphologically identifiable and great, really part of the argument about back matter, the effects still be at the end of the issue. Is that on the principle of that? What is that? And the construction of the test. Clearly, the construction of the term amazing dispute. We got the data in fact. There is actually a factual dispute as well. Because at the PI stage, we lost them at district court all. No, but the court, this court has said it's a patch. It's not a real patch, your own manners, your own, the claim is rough. Clearly, the legal matter. You're absolutely right, Toronto. And I understand that completely. You would say what are you saying? All I'm saying is what are you concerned about our, our, our, our region? Because of the patch, I think. What is it that's concerning you? Judge Prost asked with the whole case be over if this court agreed with the district judge's legal interpretation and morphologically identifiable cell nucleus. And I said the answer you know, the case wouldn't be over. Because there would remain factual issues to resolve down the level, not for this court. If you agree with my interpretation and morphologically identifiable cell nucleus, there is no longer any issue at all on infringement with respect to that. The court's case is not a certified issue. No, it wasn't a final charge. True, right. And that's what would be remained once the plaintiff's truck's issues was up. Final, the best issue, let me take a couple of minutes into my revolve. Here's the issue. There's no literal infringement of the H-41 patent because we require, do you mind talking about time, so I can plan properly? You got to have a patent on your 25th. Thank you. Well, you're on your own. The case that the wasn't that your place has it was your issue. That's the blocking aspect. Well, that's a natural issue. There's no literal infringement, not because of the blocking aspect of the news. You remember, there's no dispute at all that DACO uses the same blocking method that are patent-sucks. They just replace DNA with PNA. That's all they do. Look, two things. One is fast-zoved, the fast-zovere presumption is supposed to be identified, looked at on a limitation by the limitation basis. So that means you should be focusing on whether the limitation at issue was narrowed. Here, there's no dispute that they use the blocking method, the only dispute is whether PNA is equivalent to DNA. We say it is, I can play a cast that wasn't narrowed. It wasn't narrowed. It was in there from the beginning. Every claim from the beginning of time had new Cliac acid in it. And we never narrowed it. We could, for instance, we could have used the term blocking component and narrowed it to new Cliac acid. But we never ever did that. So we never narrowed new Cliac acid. Because we never narrowed new Cliac acid, there is no fast-zovere presumption to overcome. The second issue in tangentiality, just very briefly, the reality here is there was never any issue in the prosecution history, which remotely signaled to anyone and put an ambulance radar screen that we were dealing with the distinction between natural DNA and synthetic DNA. It just never happened. The only issue before the examiner at the time was distinguishing prior art methods of selection, unique fragment only mixers, versus blocking. There was never any issue about what you blocked with. So it's a completely different aspect of the invention that is an issue here with respect to equivalents. And I'll reserve the remainder of my time for a bottle. I did under the desk too. Yeah. What about? It's still 0. Sorry. I can do it. I can do it. I don't usually have this one. May I please support you? Let me begin by recommending one statement that my adversary made during his argument. And that question was asked if the summary judgment is firm, would that move the PI? And the answer is it wouldn't move the PI. It is true that there are a couple of or several minor products that were not encompassed by the summary judgment as it related to the E4-1 patent. But those products were not an issue in the PI. There was only one product that was an issue after the PI. The same with the P2 product. The P2 I as far as it goes. Yes. Yes. The PI was only directed to the P2 product and the summary judgment rulings found no infringement for the expected of the P2 product. Both asked for the P4-7 patent and asked to the E4-1 patent. But the other question that we would to inform the PI in the claim construction of the P2-1 patent. First, on the patent, do you use the stock to remove the patent? That leaves us with probably the court having to address our motion for summary judgment on more philosophies than a Bible cell nucleus. What did the district court? We did raise that as a basis for our summary judgment motion. That claim language does appear in both patents. The court did not reach that issue. Okay. And that there's some flag of this question that we expected infringement asked about. So that we couldn't disclose. Yes. The appellants did raise argue that there were dispute issues in fact there. We don't agree that there are, but they certainly were raised along. Tell us for a unique sequence is not 10 miles to the world. It's free of repetitive sequence in the claim of patents. Why? Why it's free of code? Well, your comment says it doesn't exclude. Well, it excludes them of your honor because when that claim language was added, it's extremely important to look at the context in which that claim language was added. The claim at that point in time just claimed that he had a genius mixture of labeled and labeled as patents. And it did not have any limitation to block. And the examiner properly pointed out that that claim as written had no procedure, no structure, no composition to disable the repetitive sequences. And so they added the unique sequence to overcome had a naval interjection. And the only way that that would deal with the repetitive sequence problem is if you meet means only unique. It means no repetitive sequences. The invention here really is directed to the problem of if you have a DNA probe that you want to buy to a target. How do you make sure that it just binds to the target and not to all the other DNA which has all the repetitive sequences? Yeah, let's just do methods. And you're prevailing on this is dependent on ours are construing a 4.7-9-1-1-1-2-3-9. Correct. Correct. And I mean, it's difficult. Because of the dependent claim. It's because I mean, why do dependent claims? And I think I, one thing I want to be responsive to is your colleagues' reference to this need not being your typical claim differentiation case. That here, I mean, I see what you said. And I want to know if you disagree. That here it's not just a matter of differentiation. Here to constru the patent otherwise, to constru the independent claim to just consist of unique sequences would completely initiate the dependent claim. It would have put the patient claim that you know of them. Well, I don't know if we've allowed that to happen. I can't say that there's a case that has addressed that in so many words. But in many claim differentiation cases, what you are effectively doing is reading out claim language and saying that claim really doesn't matter. Or when you have any type of disclaimer case, you can have clear claim language. And then during the course of prosecution history, you can display in subject matter. So this case is no different than those types of cases where something that appears to be claimed. In fact, it's not because it's been disclosed during the course of prosecution. This claim... Climb 12 was added after claim 1 was admitted. Two and a half years after claim 1 was admitted. As I said, as you pointed out as a proce, there are three methods claimed here of getting rid of the repetitive sequences. Two of them really remove the repetitive sequences from the probe mixture. One of them deals with blockage. And so I look at those as really as two different methods. One of them is to get rid of the repetitive sequences. The other is to block the repetitive sequences. The 841 pattern deals with blockage. The 479 pattern, the pattern with the heterogeneous mixture of labeled unique sequences, gets rid of the repetitive sequences. Either by in the way you make them or actually pulling them out onto the mixture once you make the mixture. But you have a pro-mixer of just unique sequences, no repetitive sequences, so it then won't bind to everything else. You don't need the blockage. But if you don't have that, if you don't have a unique mixture, then you're going to get not specific binding. And you're not going to achieve the objects of the invention. That's what the invention is all about. But there's a terminal to slay and we're having a bit of cloud. There wasn't a terminal to slay for a while. They have the same specification. They do have the same specification. Well, here as you just slide it, the two are entirely different. One does one thing, and the other does the other thing. That's correct, Your Honor. And that's how we read it. I mean, the one application, the blocky-declare asset pattern, is you. And then at that point, a divisional application was filed. And it's been... The 191 application disposes two inventions that the claim is separate from. Yes. The claim is separate. It was a divisional case, not by virtue of a restriction requirement by the examiner, but simply by virtue of the applicant deciding that they were going to claim the blocking method in one pattern. And then they were going to claim the other method of disabling the unique repetitive sequences in the other pattern. And that is to use a mixture of unique sequences. As I said, if you don't get repetitive sequences out of the mix, and you don't have blocking, it won't work. And that the examiner recognized that, issued the enablement projection. They came back then and amended the claim, said, okay, we put in unique sequences, and, you know, that was the way they overcame the enablement projection. The examiner came back later and said, well, I've got a problem with unique sequences and exactly what it means. It's a definite. And then at that point, they came back and they said, unique means free of repetitive sequences. And then they refer, when they said that, they cited back to the specification. And they cited to the part of the specification, which said that preferably the heterogeneous mixture is substantially free of repetitive sequences. So it's morphological to shape or having the same type of it to be unique. We think it believes it relates to not just shape, but also having an intact nucleus in the sense that you have all the chromosome, the chromosome, the uncut nucleus. It's the same both. Yes. But it has to, if you look at prosecution history in some of the statements that were made, in connection with this terminology, they argue that the target DNA is in some biological structure and the features of the structure relative to the desired measurement or not destroyed. In our case, we slice the... Here's a paraphernal bed tissue sample, slice it and get very thin, slanted sand hole. And then when you look at it, after you're standing, you don't know what you've got there. If you're looking through the microscope, you can't tell whether you're looking at a partial cell or a whole cell. I mean, almost all of the partial cells. But if it looks the same, you're concluding the eventual conclusion to the business sentence, right? More from logical and general. But the invention is about being able to play a fantastic sequence. Well, with respect to the morphological identifiable, the invention is about being able to look at a cell and being able to determine whether or not you have extra chromosome or missing chromosome. Or some other deep-back. And you can only do that if you have an intact cell. To be able to do this in hybrid, this same situational... The same way you use the wrong word. I'm not sure what's where you're referring to. Well... But depends upon what's inside the cell rather than this external appearance. In our view, it depends on both. The morphologically means you have to have a cell that includes the decronosome inside. Now, they do talk about, mention the fact that the patent talks about some loss of structure. But the kinds of loss of structure that we think they're talking about with an education is simply some damage to the membrane. Certainly, they're not talking about loss of structure as far as removing chromosome of DNA. The only way you can evaluate a cell where you have a loss of chromosome of DNA is to use multiple probes and then to look at a large section of cells. And then count how many probes you have in a certain area and to do a ratio of the ones that are binding to the target sequence and the ones that are binding to another sequence and then see if you've got an application. But you can't do it on a cell by cell basis, which is what they are during the course of their constitution, that their method would allow them to do it. Additional questions? I would say you're morphologically different from your opponent. What can you have from the 99.99% of the same DNA? I hope it's at least that one. So, any additional questions or we'll rely on a break shot? Just a very brief example of a point. It's a clear and unmistakable disclaimer-during prosecution. The council talked about the extremes that occurred in October of 1995, these three rejections, these three amendments to the claims and there was no discussion of mashing and wanting to another. We have a reasonable interpretation of that exchange and therefore that alone should say there's no clear and unmistakable disclaimer, but more importantly, you have to look at the entire patent record as it exists when the claims are issued, which would include the exam or summary where he recognized that getting our dependent claims, the heterogeneous mixture could in fact include repetitive sequences. We've asked about that. It's clear to you that a clear and unmistakable, disavowable is necessary. Assume for a second that we've got clear claim language that says unique sequences. Assume we don't buy your interpretation of the word all. You've got clear independent claim language that's saying unique sequences. Why does there have to be an expressed subalong with prosecution history even with claims? Well, I think if you actually look at the claims as a whole including how the dependent claims help you analyze claim one, I don't know how the claim language of the claims could mean anything other than what I say it means because we use the word of in claim one interchangeably with comprises in claim 12. They mean the same thing in a context of these claims. So the claim language plainly allows for repetitive sequences, which is why the other side is relying on what they turned to clear non-instakable disclaimer and argument that can't be reconciled with the fact that patent was plain and recognized that we could in fact have repetitive sequences and repetitive genus mixture. Last but not the point on the morphologically identified as cell nucleus. The notion that losing some chromosome DNA somehow takes the cells outside the scope of our claims can't be reconciled with the final. Even when you work with whole cells, okay, you're not slicing them up like Docoducts, you're still going to lose chromosome DNA. Why? You have to open the cell to get access to it for hydrization. You've got to take proteins out. It's in the record SA 9650 slide 15. No matter what method you use, you're going to lose some chromosome DNA. So that interpretation of the claims, acquiring a full set of chromosome DNA really can't be reconciled with reality. If there are no further questions, that's all I have. Thank you, Mark. All rise