Legal Case Summary

1,2,3,4,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5 5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5 5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5 disk, that shouldsell here, that would be better. 254A, 14150, Trestes of Columbia University vs. Luminon. Mr. Wilson, 24 minutes to start, whenever you're ready. Thank you, Your Honor, and may please record. These appeals arise from future part-age review of three related patents on aspects of DNA sequencing technology invented by Dr. Jane Wei-Jue, a Columbia University. Dr. Jue invented novel nucleotides for use in a method of DNA sequencing known as sequencing by synthesis. Now, the general concept of sequencing by synthesis was proposed in the late 1980s, but for 10 years after the idea was first proposed, researchers had made no progress in developing a nucleotide that would actually work. What researchers found was this was a highly unpredictable part, and each feature of the nucleotide potentially affected whether the nucleotide could be incorporated successfully by the polymerase. What Dr. Jue recognized was all of the elements that the incombination were necessary for high throughput commercially viable sequencing by synthesis that would actually work. Let me just throw you a little housekeeping question to start. In the red breath at 48, alumina says Columbia weighed its argument between 11 and 12 because it's seen non-arriousness in the interpolice review. Did you argue on obvious? We did, Your Honor. Yes, we argued non-obviousness for 11 and 12. Where would that be in the rest of the... I'll need to check the record. Okay. Yeah, let me know on that. To return, it was the complete combination of features that were necessary for a sequencing by synthesis would actually work. A removable cap on the 3-Primo-Age group and a label on the base and a cleavable linker, and using a diapyrrine to connect the linker to the curing. What do you say? I'm sure I'm mispronouncing it. You know a pet in the scene or sign. Dr. Chem. Okay, I had it wrong all the way. But what do you say that reference does not teach? That, well, two things

. That reference does not teach a nucleotide that has a combination of base labeling, cap on the 3-Primo-Age and cleavable linker. So although Dr. Chem certainly does propose three different possibilities for sequencing by synthesis. You know, and his main focus is certainly on the 3-Primo-Age, not on the base labeling. He does mention the combination. He does, but he never puts those three elements in combination. And he certainly does not teach himself a diapyrrine. So the question is that I think we're the board fundamentally went wrong. The diapyrrine from Prober, correct? Well, he did not say it's saying it. He did not get the diapyrrine from Prober. Exactly. He's certainly site prober. And he also sites another reference, sarfety, we're saying, you know, it's possible to put fluorescent, it's possible to put labels on base in, you know, ways that might be useful. But the thing is you have to keep reading. And when you turn the page, you see he's getting what he's citing Prober for is labeling primitives. Well, he's not citing Prober at all for labeling purines. And in fact, when he talks about labeling purines, he says, oh, the, you know, the place, the best place to label a purine would be on the eight position, not the seven position, which is what Prober had proposed. And Prober of course had proposed that for a different technology, which is sangr sequencing. Now, you have to think about what was the reason why Prober was interested in the diapyrrine. And the reason why he was interested is very different from the reason why Dr. Jew found that the azopurine to be very useful. Fundamentally, Dr. Jew found that the azopurine to be very useful for a spatial reason. That is, he, the researchers who had tried and failed during the 1990s to solve the problem of sequencing by synthesis, had all, there was a recognition that there was a spatial problem. That is, where were you going to put the label physically so that it wouldn't interfere with other reactions, either the, pull the right on the sugar. Pull the right, some people had tried putting on the sugar. And that, if those efforts to put it on the sugar had continued well into the 1990s, and a few researchers had said, it's very strange, you know, this seems like it ought to work. But for some reason, it's not working. Notably, they did not say, since it's not working, let's try putting the label on the base, even though they were well aware of Dr. Chen's paper. So they weren't drawing the lesson from those experiments that they, that illuminates says they ought to have drawn from putting Chen and Prober together

. What they were saying is, let's try something else. Let's fiddle with the polymerase or let's do something else to the molecule, not putting the label on the base. What Dr. Chu recognized? In sort of a post-KSR world, if you will, doesn't the combination, at least in terms of the 698 head of Chen? That's how I bring out the technology. That's how I bring out to anyway. Doesn't that combination, that reference with Prober, gets you pretty far in terms of... I don't think that's right, Your Honor, because this is not a mechanical pattern. In other words, we're dealing here with a very unpredictable heart. This is very advanced synthetic nucleotide chemistry. And as Columbia's expert pointed out, anytime you change any aspect of a nucleotide, you change, I'll put the label here, I'll put the cap here, I'll change which cap I use, I'll change which is cleavable. Linker I use and Prober doesn't have a cleavable linger at all. That could alter the reactions. That could make the reactions... I appreciate what you're doing. I appreciate your rescuers. Very good background, helpful background. Thanks to me, though, the reality we're living under is you've got a very, very, very detailed forward opinion. And you're left, so, I mean, is there anything here that you're arguing that doesn't get substantial evidence difference for the forward in terms of its finding? And can you identify there what, what, what wrong? Because they go through, I mean, meeting the opinions, they're very detailed, they go through all of the expert testimony. And they draw a very clear picture, which just to be frank, very candid with you, strikes me as very complete and thorough. So, I would say there were three fundamental errors that the board made. The first fundamental error is, I think, and this is most manifest in its treatment of the objective evidence, the board fundamentally is suffering from a kind of hindsight bias. And the board did not really treat the objective evidence in the case as, you know, sort of an independent, an independent way of looking at the evidence, obvious in a sense, sort of really seeing was there, you know, was, you know, you might see looking back on what had happened. You might say, oh, it was all laid out in a path by the technology, but the objective evidence tells a very different story. I mean, in particular, the licensing evidence. That tells us that when there was a report of Dr. Jou having solved the reversible terminator cleavable die issue, illuminate immediately spraying into actions and we'd really like to license this. You know, we don't have a play in sequencing by synthesis

. How can we talk to Dr. Jou? You know, we trust what Dr. Jou says, and he says that he's solved this. And there were extensive negotiations with Columbia about licensing. Eventually, those negotiations didn't fare fruit because Columbia chose a different licensee. But there certainly no indication that they didn't fare fruit because, you know, the parties value the technology very differently. And there's no question that aluminum is effort to license this technology. It was about this technology. I mean, the parent patent to this is in the list of technology that Columbia provided aluminum under the, they had a confidential disclosure. Do we know at the time of licensing whether aluminum knew about the GNPAT? Well, I mean, the gen, of course, the gen is a patent application, not a gen patent. I mean, there's no indication. I mean, they certainly don't say in their email traffic, oh, you know, this is, you know, what we really understood is the gen technology. I mean, I think to the contrary, since it was praised that Dr. Jou has solved the reversible terminator cleavable die issue. There was a recognition that the technology had, that advances in the technology have stopped. And there was a problem to be solved. And that problem was solved by Dr. Jou's, Dr. Jou's insight, fundamentally his, his spatial insight. So you have the, you know, aluminum is e-curned to license the technology. You know, you have the, the aluminum, sorry, aluminum is commercial success. And here the board did make a fundamental legal error, which is the board did not apply the presumption of nexus that this court has stated in several opinions comes from when you have commercial success from a product that embodies the invention. There's a presumption that the commercial success is due to that, that invention. And the burden then shifts to aluminum or then is, I should say, is on aluminum to show. And what did the board say here about the commercial success? Well, the board says that the commercial success, the board says that Columbia has not shown that the commercial success was due to, you know, only to the diaspuring and not to, you know, not to the technology that was on the board. And the board didn't say it was due to, you know, extraneous factors like customer service or something like that. But that is another, I think, basic error in the board scope of its decision because you have to look at the invention as a whole. Yes, there were elements of the technology that had been discussed in different places. But who's burden is that? I mean, if there's some elements that were in the prior, our elements of the whole and there's one additional one. And the board concludes that you have, aren't you, isn't your obligation to show that for purchase of commercial success, that it was the inventive portion of that that led to the commercial success? Well, I think if we, I think if we, you know, we are entitled to a presumption that it is if we produce evidence, I mean, we certainly have a burden of production. And we satisfied that burden of production by showing, you know, aluminum products embody the invention

. And there's not really a dispute. The board didn't really doubt that. Aluminum has had commercial success with that invention. The board didn't really dispute that. And, you know, you have to really look at the invention as a whole because it's not like the three pieces together were working. And then it's not like the aluminum had a car and Columbia proposed to put an equipment on the car. You know, the three pieces together either separately or together, that aluminum says were in the prior art, the space label, free primal wage cap, and Cleveland linker, those three pieces together were never working together. There was no, there wasn't any commercial embodiment that together had been used, what certainly was successful. It was with the addition of the de-azapurine that the whole end de-azapurine attached to the base by the Cleveland linker that the whole thing really works and works dramatically well. So that I think is, I think, you know, the board said, well, you have to sort of see what sort of what the prior art was readily, you know, what was readily available in the prior art. But I think you can't just look to sort of see a radical possibility that there might have been things available in the prior art because nothing was on the market, nothing was actually working. So it's really only again with the, it's really again only sort of like putting together all the pieces, but not just putting together actually synthesizing them from scratch. I mean, this isn't a mechanical art. We were just a question of taking a, you know, a rotor off one place and putting it off another. I mean, as, as aluminum, sorry, as Columbia's expert explained, starting from the prior art and developing the chemistry that it would be necessary to get you from point A to point E was enormously complicated. And one thing that the board didn't really resolve or appreciate was, you know, who is competent to testify about how complicated it would be to get from point A to point E. Columbia had a chemistry was able to explain all that. I mean, my sense was that both Dr. Trainer and Dr. Weinstock, essentially, were both very qualified. And is this sort of a downward issue is to, that you're saying Dr. Weinstock wasn't qualified? Well, it's, Dr. Weinstock disclaimed the ability to talk to the chemistry that would be necessary to either synthesize, to synthesize the nucleotide, the brand new nucleotide. So he really was not able to talk to the question of how complex the chemistry would be. Now, aluminum is response to that is, well, if he had chemistry, you know, a higher level of skill would have only meant, it was more obvious. But I think what that argument really doesn't appreciate is really it's a person with the advanced chemistry who can really appreciate how unpredictable the chemistry is in synthesizing nucleotides and in synthesizing nucleotides that are not natural so that they're, you know, they don't, they're not analogous to the natural. That's right. Is your argument was basically that that somehow the aluminum case is weaker because Dr. Weinstock didn't have, while he's a competent gentleman, didn't have, in your view, the particular expertise background that was necessary for the subtle issues in this case. He did not have the background or and he disclaimed the expertise to testify about issues that I think are the core of this case in particular, reasonable expectation of success in synthesizing the nucleotide and a reasonable expectation of success that the nucleotide would actually work, that it would actually be incorporated by a polymerase. And I think that the defect in the luminous argument is actually shown by the board's decision on those two very points because the board's decision on reasonable expectation of success of the polymerase doesn't rely on Dr

. Weinstock at all. I mean, the board really relies on what I might call its own expertise, which is really a kind of a burden shifting where they say, well, you know, Columbia hasn't persuaded us that there are these two sort of, these two technologies that seem to be working separately, three primo-age cap and labeling base. We just speed the premise of that, but even putting that aside, Columbia hasn't persuaded us that it wouldn't be perfectly sensible to put the two together and that they would work perfectly well. We seem to see at least some from time to time as the argument that the board has gone too far in its in relying on what I think you just described or referred to as its own expertise. Do you see that as an issue? I see that as a very significant issue here. I think that's a kind of a fundamental issue. In what particular area do you say the board overstep that then? I think you see it most is most salient in reasonable expectation of success because in reasonable expectation. I think around cages, I've got, sorry, I'm looking at, I mean, it's appealed on the 1547, which is the 698. And I've got, I'm also sick that the page 834. So, the first thing I would say is when you look at sort of the page 826 and 27. So page 826, if you see there's an italicizer, was there a basis for reasonably expecting that a nucleophile with a removable three primo-age cap, etc. I mean, one problem with this is the board actually doesn't even answer that question. If you read the second paragraph, it's talking about an argument that Columbia is making. And they say opening line with second paragraph, this argument is not persuasive indicating to me that essentially they're placing the burden on Columbia to show why it's not obvious. But then if you look at the last paragraph, the last sentence, secondly, a preponderance of evidence establishes a reasonable expectation of success as it's rest above. It isn't the rest above. There's just no analysis of reasonable expectation of success, of incorporation by the polymerase. I'm not going to. I mean, I realize that, you know, the other place where I think this... I mean, before the quote that you had the question, it says in some, the ponderance of evidence establishes there was a reasonable expectation of success. So what precedes it, the analysis, the preceded, the support of that? Well, and they're talking about... If that's what the board means, you see, Your Honor, then all that they're talking about here is arguments by Columbia that they've rejected. And they don't rely on any arguments. They don't rely on any evidence by Dr. Weinstock. And on the previous page, there's a.

.. On A24 and A25, which is I think where you have principally the discussion of reasonable expectation of success, of actually... of incorporation by a polymerase. You know, they do... There's a lot of discussion about how Dr. Trainer didn't explain or Dr. Trainer didn't... Dr. Trainer didn't persuade us. There's no discussion at all of what Dr. Weinstock did, what Dr. Weinstock said. So I think these pages are examples of where the board's decision literally lacks substantial evidence because it doesn't rely on any evidence presented by Illumina. And we infer that it only could have been relying on its own expertise, which under decisions like, you know, Brandy Miller, is not for miscible under... It can't be upheld on the agenda. Excuse me. You start off by saying there were three specific problems in the board's decision. It was hindsight. Right. And the second one is... So the second one are the kind of burden shifting

... What you just described. A burden shifting... What I just described, and I also think burden shifting, you also see that in the... in the hindsight. And then the third I think is fundamentally the board's failure to really appreciate that the question here was about the... the invention as a whole. And I mean, that point sort of overlaps on some other points I mentioned, but the board sort of points to, you know, individual features in the prior art... without appreciating the challenges of combining those features. You know, even no prior art, even Dr. Chen suggested combining even the three features, based on labeling the free primoage capping and Cleveland Linger into a single embodiment, excuse me. And certainly no prior art suggested combining the fourth feature of a de-adapurine, which was what made it very useful to attach the label bi-ethleivable Linger. And then the board sort of dismiss a lot of those difficulties by saying, well, it would have been obvious. I mean, for example, you see in the board's discussion of Stemple and Anazawa, which is in the 1548 field. The board says, well, Anazawa's flawed, you know, his chemical processes are actually don't work. And the board says, well, you know, some skilled in the art would have figured that out. You know, they would have figured out how to use prober to fix Anazawa. You know, there's no evidence of that. You know, that's first of all a burden shifting, and there's not any evidence of that in the record either. But fundamentally, I think going back to maybe an objective point, the board also sort of lost sight of the fact that Chen and prober are from 1990 and 1991. And there's a 10-year gap where researchers are persistently trying the path that Chen laid out, which is put the label on the free primoage cap. That is no question he's preferred embodiment

. Researchers tried that, and researchers failed. And they couldn't figure out what was wrong. They couldn't figure out what the solution to that was. I think the board, this loops back into hindsight bias, but the board fundamentally fails to sort of appreciate this is long period of time where it just doesn't seem to be the right answer. And that I think is, what are you saying? This is kind of a quasi-secondary consideration in the passage of time. It's kind of a long-felt needs type argument, but it's also, I think, a response to aluminum. I mean, one thing that aluminum has said is, you know, really the free primoage cap label approach was, I think they used a term fading alternative. And everybody knew that everybody had recognized that the base labeling was really the more promising thing. But that's when you look at the evidence aluminum points to it, when you look at the researchers who are working in this field in the 1990s, they're trying to put, they're not all put side on his out. But the others, Welch, Netscher, they are trying to put the label on the free primoage cap well into the 1990s. They're trying and they're failing. And they don't, they don't draw from their failure. The answer that Dr. Jew drew, which is, put the label on the base with a cleavable linker attached to the purine through a deacetyrene. When we hear from the thank you. Evera Rhine, on behalf of Alumina, may I please the court first to address the housekeeping issue. There was no defense of claims 11 and 12 in the patent owner's response, which is an A2167. Moving to the more fundamental question, what the board found and didn't have substantial evidence, the board started, because I think where we should start today and is on a substance to right place to start, which is what would the interest level in the art in capping the sugar and labeling the base? Because that's really what they're claiming is the event of doing sequencing by synthesis, where you cap the sugar, which you put the base, not on the sugar. I mean, no, not on the sugar, but on the base. And we've heard here nobody showed it. We've heard all kinds of arguments about how this was disfavored and so forth. And the board said, we hear you. You're articulate, but that's not what the evidence shows. What the evidence shows in Dauer, Stample, and Shen is that that combination was taught. And in fact, once the last thing that council stated was that clearly in Shen, it was a disfavored version of the invention. You'll find nothing in there that says that it's any last favorite. In fact, if you read the invention, you can just take a fresh document and read Shen, some of the invention. He says, we want to move away from electro free, so we're going to do sequencing by synthesis, and there's a number of ways you can do it. I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was the act of pureing with the combination of the cap on the sugar and the bass label. The bass label. Because in Chen, Chen, Chen, Chen, Chen, Chen, Chen, Chen, Chen, Chen said, use the eight position use the eight position to attach the cleavable label when you use the cleavable label when you use it on the bass and the claim requires the adipurinate to set

. Okay, there is a avalanche of reasons that, behind that, I can start with this. I mean, I, would you like to want to, I'll bring a few more. Yeah, let me just, let me just one question. Thank you. Well, just to go back to the point you were making about the discussion, I mean, the board recognized that Columbia may be right that Jen didn't say that the base labeling was the most favored, but what it said, which I think is the correct statement of law, is that that didn't constitute it teaching away, and just because there was a preference for one thing in Jen, does not mean that the other disclosures in Jen weren't useful or necessary. Spot on. And I think, but it's even just, the way I think of it is, real commonsense level, it's part of his invention. He's saying, I made an invention, and one way you can use my invention is to cap the sugar and label the base. So why would that be something you wouldn't want to do if someone's, why would I, I mean, not about the licenses. I mean, that's good evidence, is it not? I don't, I don't think, I don't think it's much evidence at all. I mean, first of all, it's unconsumated. I don't think there's ever been a case by this court where an unconsumated, I mean, respect for the patent is your licensing it. I think having prevailed in a, in a reexam after refusing to act, we asked to a charge of infringement is the opposite of respect. And we're sort of here because we didn't license it. So it's sort of back, we're not, say that we're respecting the patent by our conduct. What happened was there was initial license discussions. Importantly, we ended up licensing this technology from selector, which invented, there's a simultaneous invention, the evidence is in the record, there's no real contest about that. So we got the technology that we used. We did, these claims didn't exist when they began. And then what you see is after 2007, 2008, this Columbia's approaching a little bit about patent, saying, look, we have patent, do you want a license? And we basically said we found a better solution. I mean, it's an unconsumated license. It hardly shows respect. It's not tied to any of the patents. It's not tied to any of the claims. And it's not tied to the feature that they say is inventive. I mean, the reality is, by the time you get through this record, they can't say that capping the sugar and labeling the base is theirs, because the hour, sample, and Shen all show it, and they don't even really contest that. Now, one thing they do say, I mean, the most they can say about Shen and this embodiment is, you have to cobble together. It's sort of a little bit of a one from Colomay, one from Comvey, and you'd be befuddled. Their own expert at page A3794 states that Shen discloses an alternative nucleotide analog which includes a label attached to the base and the possibility of the label being attached to the nucleotide analog by means of a cleavable feather. That's paragraph 28, A3794. And the board pointed that out and said, your own die acknowledges that Shen teaches it as his invention

. And there was no arguments about the hour, and there was no arguments about the sample. So any idea that there's this fundamental teaching that they have that you can cap the sugar and label the base just doesn't go anywhere because it's fully disclosed in the art. And that part of the combination with provost. Okay, so let's talk about the DIAZE addition. So the reality is that everyone agrees that during the course of the 90s, DIAZE purines were ubiquitous. That's the word their own attorney used in before the board. That's what the board doesn't title to rely on, they're ubiquitous. The ASE purines were so ubiquitous, you could buy them from a manufacturer made a resin. And why you need a chemical degree to do that. Applied bio systems is mentioned in the record, others are mentioned in the record. On top of that, R.A.R.S.P.R.R. Dr. Weinstock explained that the databases were used in the context of sequencing by synthesis. In the context of a cleavable linker. That's a paragraph 44 at A3177. So if you could just buy them off the shelves and attach them, it just makes it stronger. I can, it's chemistry but we can explain it relatively simply. It says instead of using on the base the nitrogen, which has three bonds, replace it with a carbon with four bonds, it's stronger. And it's not like that's a discovery. It was ubiquitous. Everybody was moving to Diaz's because when you put the label on the base, it would be stronger. One of the things that Mr. Wilson focused on in his argument was this 10-year gap that you heard him describing that. What do you have to say? That's an interesting point. What do you have to say about that? I was surprised. It sure has been said. I must admit that when I looked at this record, that's the question that comes to me, because I actually think of all the things that kind of long felt neat can sometimes be a helpful tool. So what will I, I think people do it? The answer is A, people did do it because what that ignores is that's treating Shen in isolation, not the record that's here, which is a sample endower that's at least two others that did everything. Keep in mind, in these PTA proceedings, they're still looking at like reference by reference. We had numerous, numerous references and you just have to narrow it down at some point. So there's three places where they have that combination, but even more to the point, and the one that just sort of said, all right, there's nothing to this argument in my mind, is the commercial success that they're claiming, really started in 2008, which is almost 10 years after they came up with their so-called invention. It's sort of, let's go back to first principles, right? That's always the useful thing to do. We start getting caught into who's burdened and burdened persuasion and proof and going forward and all that legal ease. When you ask yourself the common sense question of what's commercial success supposed to show? It says, well, if there's this big golden ring that you can grab, why wouldn't anyone have done it? Wouldn't have people been motivated to grab their ring, right? Well, if the ring was grabbed in 1999 or 2000 when you came up with what's that, what's a paper patent? How come it took 10 more years to make it something that was worthwhile in commercial? And the answer to the question is, experimentally, people knew that this was something you could do. They knew that you could demonstrate it, but to scale it up, there's so much more. And this goes to why all commercial success, the argument doesn't work. You need the arrays, you need a lot about the prep. There's actually a ton of technology and how you prepare these arrays with so many different parallel nuclear times. So there's so much to that and the optics and everything else that you have to get right for it. Everyone wasn't sitting around waiting for June to resolve this in 2000 to get this done. And, Amar Shem, what did you say? Are you saying, starting with, there were a lot of issues not related to this invention that were impeding the process, if you will? Of making it a high-food put commercial gold mine. That didn't happen until the record will show, there's some claim that 2007 or something like that. It's really 2008 before they have actual evidence of any large scale sales bias. But the other point is, you would think if it was a long-felt need and this person broke through, because they had the stroke of genius, which is sort of the implication they're trying to give you. Then why would Amar Shem did it at the same time, selects it at the same time, the hour did it, stemples did it around the stemples 1999, it's prior art, but it's right beforehand. So other people did it. And there's just no base, and interestingly, some of the things invention, everyone used the ashes. So when you look at the Amar Shem technology, you look at the Alexa, which is what we licensed in. Everyone used the ashes, because that makes the stronger bond. But one thing I want to give back to was the motivation to use the ashes, because it became pretty clear from the Ford's initial institution decision that they're a central invention. And if you read the patent, what they say the invention is, I mean, if you read the patent, what the invention is, is the cap in the sugar and labeling base. That's what they're saying, the invention is. And then we came back with this avalanche of evidence, like three different anticipatory references, more, but at least three, and they just said, all right, well. And they dropped back, and they said, well, it's the addition of the DIAZ and had a dependent claim. That's not what the summary of the invention is telling you they invented. But that's why there's a little bit of, when you hear dissonance from the other side, argument that's what it is

. It sure has been said. I must admit that when I looked at this record, that's the question that comes to me, because I actually think of all the things that kind of long felt neat can sometimes be a helpful tool. So what will I, I think people do it? The answer is A, people did do it because what that ignores is that's treating Shen in isolation, not the record that's here, which is a sample endower that's at least two others that did everything. Keep in mind, in these PTA proceedings, they're still looking at like reference by reference. We had numerous, numerous references and you just have to narrow it down at some point. So there's three places where they have that combination, but even more to the point, and the one that just sort of said, all right, there's nothing to this argument in my mind, is the commercial success that they're claiming, really started in 2008, which is almost 10 years after they came up with their so-called invention. It's sort of, let's go back to first principles, right? That's always the useful thing to do. We start getting caught into who's burdened and burdened persuasion and proof and going forward and all that legal ease. When you ask yourself the common sense question of what's commercial success supposed to show? It says, well, if there's this big golden ring that you can grab, why wouldn't anyone have done it? Wouldn't have people been motivated to grab their ring, right? Well, if the ring was grabbed in 1999 or 2000 when you came up with what's that, what's a paper patent? How come it took 10 more years to make it something that was worthwhile in commercial? And the answer to the question is, experimentally, people knew that this was something you could do. They knew that you could demonstrate it, but to scale it up, there's so much more. And this goes to why all commercial success, the argument doesn't work. You need the arrays, you need a lot about the prep. There's actually a ton of technology and how you prepare these arrays with so many different parallel nuclear times. So there's so much to that and the optics and everything else that you have to get right for it. Everyone wasn't sitting around waiting for June to resolve this in 2000 to get this done. And, Amar Shem, what did you say? Are you saying, starting with, there were a lot of issues not related to this invention that were impeding the process, if you will? Of making it a high-food put commercial gold mine. That didn't happen until the record will show, there's some claim that 2007 or something like that. It's really 2008 before they have actual evidence of any large scale sales bias. But the other point is, you would think if it was a long-felt need and this person broke through, because they had the stroke of genius, which is sort of the implication they're trying to give you. Then why would Amar Shem did it at the same time, selects it at the same time, the hour did it, stemples did it around the stemples 1999, it's prior art, but it's right beforehand. So other people did it. And there's just no base, and interestingly, some of the things invention, everyone used the ashes. So when you look at the Amar Shem technology, you look at the Alexa, which is what we licensed in. Everyone used the ashes, because that makes the stronger bond. But one thing I want to give back to was the motivation to use the ashes, because it became pretty clear from the Ford's initial institution decision that they're a central invention. And if you read the patent, what they say the invention is, I mean, if you read the patent, what the invention is, is the cap in the sugar and labeling base. That's what they're saying, the invention is. And then we came back with this avalanche of evidence, like three different anticipatory references, more, but at least three, and they just said, all right, well. And they dropped back, and they said, well, it's the addition of the DIAZ and had a dependent claim. That's not what the summary of the invention is telling you they invented. But that's why there's a little bit of, when you hear dissonance from the other side, argument that's what it is. So they're now trying to say it's the DIAZ and we put in pages of evidence, I think about it, 20 paragraphs from WinesDoc, nailing this issue. That it's GC, that the DIAZ avoids GC rich problems, that the DIAZ just makes some more stable linker that you'd want, and all, and that you could buy it on the street, all that stuff's just a record. So now what's happened is on appeal, and they lost on that attempt to rely on the DIAZ as the real true nature of the invention, they're shifting back to other things. And none of the three arguments that they've made is at all persuasive. I can go through the three errors that they're saying, and won't repeat myself, because I know how important everyone's time is. But starting with the objective evidence, there is no more, the commercial success, play I think about it, the commercial success of Illumina, is no more of a story of greatness for the Jew invention, add it is for dour or sample or shan. Because all of them have the combination of capy, the sugar, and labeling the base. So what the board says is, well, if you're addition of the DIAZ, which is what distinguishes you from those references, look, there's anticipation references here. We didn't hear anything about that, and there's really what like a paragraph of argument, where they make the argument like in Shen that you have to cobble it together. They don't really contest the dour, sample, and Shen disclose everything but the DIAZ. You wouldn't get that from the argument, but if you look at the anticipation rejections, that's what you get, because they don't have an argument. That's how you get that. The DIAZ spring comes from prober. Well, there's multiple combinations, and I'm glad you asked that question. The DIAZ comes from prober, but it also comes from the level of skill in the art. The fact that you could buy one on the street, the fact that it was ubiquitous, the fact that Ciela, which is another combination, so this is one of the references before the board, with the combination of Shen and Ciela. The name of it is the 7 DIAZ appearing patent from the 80s, and in there they say, this is great. It makes a stronger label, and it prevents secondary structures, this GC-Rage problem. Go on. I mean, the whole patent is about using DIAZ in your DNA. And then they say, use it for anything where you're having a DNA sequencing reaction, not limited to Sanger. They will tell you that it's limited to Sanger. They're arguing it depends on them, and how can they win if they otherwise? Well, it was focused on Sanger in the program. That was the focus. But I'm not so much Ciela. Ciela, okay. Old Ciela says, forget, old Ciela says, prober is a landmark reference that taught determinators and had a whole bunch of technology. The reason they cited it, it's such a fundamental reference. Everyone goes back to prober. But Ciela in many ways is a more interesting combination, because Ciela said, use 7 DIAZ is their great for base labeling. And what they, I think what's important to understand in Ciela is that in Ciela, they do not limit themselves to Sanger

. So they're now trying to say it's the DIAZ and we put in pages of evidence, I think about it, 20 paragraphs from WinesDoc, nailing this issue. That it's GC, that the DIAZ avoids GC rich problems, that the DIAZ just makes some more stable linker that you'd want, and all, and that you could buy it on the street, all that stuff's just a record. So now what's happened is on appeal, and they lost on that attempt to rely on the DIAZ as the real true nature of the invention, they're shifting back to other things. And none of the three arguments that they've made is at all persuasive. I can go through the three errors that they're saying, and won't repeat myself, because I know how important everyone's time is. But starting with the objective evidence, there is no more, the commercial success, play I think about it, the commercial success of Illumina, is no more of a story of greatness for the Jew invention, add it is for dour or sample or shan. Because all of them have the combination of capy, the sugar, and labeling the base. So what the board says is, well, if you're addition of the DIAZ, which is what distinguishes you from those references, look, there's anticipation references here. We didn't hear anything about that, and there's really what like a paragraph of argument, where they make the argument like in Shen that you have to cobble it together. They don't really contest the dour, sample, and Shen disclose everything but the DIAZ. You wouldn't get that from the argument, but if you look at the anticipation rejections, that's what you get, because they don't have an argument. That's how you get that. The DIAZ spring comes from prober. Well, there's multiple combinations, and I'm glad you asked that question. The DIAZ comes from prober, but it also comes from the level of skill in the art. The fact that you could buy one on the street, the fact that it was ubiquitous, the fact that Ciela, which is another combination, so this is one of the references before the board, with the combination of Shen and Ciela. The name of it is the 7 DIAZ appearing patent from the 80s, and in there they say, this is great. It makes a stronger label, and it prevents secondary structures, this GC-Rage problem. Go on. I mean, the whole patent is about using DIAZ in your DNA. And then they say, use it for anything where you're having a DNA sequencing reaction, not limited to Sanger. They will tell you that it's limited to Sanger. They're arguing it depends on them, and how can they win if they otherwise? Well, it was focused on Sanger in the program. That was the focus. But I'm not so much Ciela. Ciela, okay. Old Ciela says, forget, old Ciela says, prober is a landmark reference that taught determinators and had a whole bunch of technology. The reason they cited it, it's such a fundamental reference. Everyone goes back to prober. But Ciela in many ways is a more interesting combination, because Ciela said, use 7 DIAZ is their great for base labeling. And what they, I think what's important to understand in Ciela is that in Ciela, they do not limit themselves to Sanger. They say anything with the DNA sequencing reaction. Well, this is the DNA sequencing reaction, and it's no different. In Sanger, you had a cap that was not removable on the sugar. Here you have removable, and that technology's trivial, making it cleavable for Sanger. I don't know if people, they don't even argue about that. So, that already had the adjustment here and said, use the 7 DIAZ here for a former base. It's what's the difference? Removal, undownruval. And it says, if you're using a polymerase and endime to incorporate the nucleotide, where a good option for you. And that's in the 80s. That's the Ciela reference. That is one of the combinations. Now, in prober, let me go through, I think it's worth discussing going through prober, and how that's referred to in Shen. In Shen, at page 28, on this occasion, it's kind of easier to use the internal paging rather than the panics. But for a reference in the Pio 1547, this is a A3O29. It states at page 28, prober shows at line 17. Prober shows enzymatic incorporation of fluorescent GDNTPs by reverse trans-5Dase and sequenase. You talked about your reasonable expectation of success. In Shen, he's saying, when you label the base. Look at prober, because prober was labeling the base, and it was incorporating just fine. And he also had a cap on the shoulder. And they say, this works fine. So what would one skill in the art would look at prober to understand what worked, and that would be the DIAZI design. And again, they did really develop this argument in front of the panel, but I mean, you know, it's sort of the best thing they got on DIAZI. I just say, to accept this argument, you have to ignore that as ubiquitous, ignore all the wine stock evidence that's more than sufficient evidence alone, ignore the seal of combination, and ignore the seal of teaching, and ignore a lot of the things that are documented in our briefs about why someone would use it DIAZI. But they argue on page 29, which is the very next page, that the C8 position of the purine structure presents an ideal position. So that's what Shen like. But that doesn't nullify the idea of using a DIAZI, especially since everyone points out the written. I know there's a difference, but what is the significance in the science between you're being on a C7 or C8 position, generally? I just don't have a sense as to whether that makes a lot of difference or not. I don't know if it makes a lot of difference, but the C7 position is where you can substitute the nitrogen for the carbon, and therefore get a stronger bond, which you can't do it at the C8. I don't know if you can. I don't know that people explored that

. They say anything with the DNA sequencing reaction. Well, this is the DNA sequencing reaction, and it's no different. In Sanger, you had a cap that was not removable on the sugar. Here you have removable, and that technology's trivial, making it cleavable for Sanger. I don't know if people, they don't even argue about that. So, that already had the adjustment here and said, use the 7 DIAZ here for a former base. It's what's the difference? Removal, undownruval. And it says, if you're using a polymerase and endime to incorporate the nucleotide, where a good option for you. And that's in the 80s. That's the Ciela reference. That is one of the combinations. Now, in prober, let me go through, I think it's worth discussing going through prober, and how that's referred to in Shen. In Shen, at page 28, on this occasion, it's kind of easier to use the internal paging rather than the panics. But for a reference in the Pio 1547, this is a A3O29. It states at page 28, prober shows at line 17. Prober shows enzymatic incorporation of fluorescent GDNTPs by reverse trans-5Dase and sequenase. You talked about your reasonable expectation of success. In Shen, he's saying, when you label the base. Look at prober, because prober was labeling the base, and it was incorporating just fine. And he also had a cap on the shoulder. And they say, this works fine. So what would one skill in the art would look at prober to understand what worked, and that would be the DIAZI design. And again, they did really develop this argument in front of the panel, but I mean, you know, it's sort of the best thing they got on DIAZI. I just say, to accept this argument, you have to ignore that as ubiquitous, ignore all the wine stock evidence that's more than sufficient evidence alone, ignore the seal of combination, and ignore the seal of teaching, and ignore a lot of the things that are documented in our briefs about why someone would use it DIAZI. But they argue on page 29, which is the very next page, that the C8 position of the purine structure presents an ideal position. So that's what Shen like. But that doesn't nullify the idea of using a DIAZI, especially since everyone points out the written. I know there's a difference, but what is the significance in the science between you're being on a C7 or C8 position, generally? I just don't have a sense as to whether that makes a lot of difference or not. I don't know if it makes a lot of difference, but the C7 position is where you can substitute the nitrogen for the carbon, and therefore get a stronger bond, which you can't do it at the C8. I don't know if you can. I don't know that people explored that. But like I said, the real point is over the course of the 90s, everyone moves to DIAZI. So, as I said, their argument isn't that DIAZI is working ubiquitous, and their argument isn't that when you base label everyone was using DIAZI as you can buy them commercially. They're on expert trainer, it acknowledges that, and he has to. Their argument is somehow if it was grave and standard for sangress sequencing to get a really strong label of the base to the label in sangress, that wouldn't translate over to sequencing by synthesis. That's the best form of the argument. But the problem with that among other problems is in the fact that they've never explained the reason why anyone would care about that difference. You hear it's all unpredictable, it's chemistry unpredictable. This panel, too, is very into the flow of that kind of, all chemistry isn't unpredictable. In fact, we've established here that they, I mean, maybe the most important fact on this, and maybe this is where I should start it and maybe I'll regret it when I relish into this, is that Jew himself, when he wants to describe the use of the adipurine, says this is just well established and refers to prober and refers to Lee and refers to Hobbes. And doesn't explain how to do it. This is this unpredictable science, he just says, well, so well established. You know what it is. Your people say, that's blinding, as this court knows, but it's also just common sense. If he doesn't want to have to describe how to do it, how unpredictable is it? And if he's just saying, and this is, he says, describes this as well established and then cite three different references. Now they make arguments, and I thought some of them did border on more week than you'd like to see, was that, well, because there's three different references cited for how well established it is to use Dias'as and how easy the chemistry is, that it's some combination of the three, which is complicated. I actually argued that, I think in the reply brief, it's like, come on. They're giving you three references from a long time ago that all show its well established. So their invention is the addition of the Dias'as, in which their own inventor describes it, not his invention, but well established. But beyond that, in case that wasn't enough, at paragraph 59, a 317A, and this is Weinstock, Weinstock specifically says, he didn't nail for the idea of the issue, but he says, their argument is what I just described, because it's the only thing that I can say. I mentioned Dr. Weinstock who we had, at least I had a little bit of a colloquial Mr. Wolson about this issue, about the credentials. Well, it's not really the credentials. I mean, I think both sides would agree that Dr. Trainer and Dr. Weinstock are very educated and competent and so forth. But this argument, I think, Mr. Wolson is making, that there's at least for purposes of this case, there's a little bit of a gap in Dr. Weinstock's expertise. And it's true that Dr. Weinstock did candidly make some admissions

. But like I said, the real point is over the course of the 90s, everyone moves to DIAZI. So, as I said, their argument isn't that DIAZI is working ubiquitous, and their argument isn't that when you base label everyone was using DIAZI as you can buy them commercially. They're on expert trainer, it acknowledges that, and he has to. Their argument is somehow if it was grave and standard for sangress sequencing to get a really strong label of the base to the label in sangress, that wouldn't translate over to sequencing by synthesis. That's the best form of the argument. But the problem with that among other problems is in the fact that they've never explained the reason why anyone would care about that difference. You hear it's all unpredictable, it's chemistry unpredictable. This panel, too, is very into the flow of that kind of, all chemistry isn't unpredictable. In fact, we've established here that they, I mean, maybe the most important fact on this, and maybe this is where I should start it and maybe I'll regret it when I relish into this, is that Jew himself, when he wants to describe the use of the adipurine, says this is just well established and refers to prober and refers to Lee and refers to Hobbes. And doesn't explain how to do it. This is this unpredictable science, he just says, well, so well established. You know what it is. Your people say, that's blinding, as this court knows, but it's also just common sense. If he doesn't want to have to describe how to do it, how unpredictable is it? And if he's just saying, and this is, he says, describes this as well established and then cite three different references. Now they make arguments, and I thought some of them did border on more week than you'd like to see, was that, well, because there's three different references cited for how well established it is to use Dias'as and how easy the chemistry is, that it's some combination of the three, which is complicated. I actually argued that, I think in the reply brief, it's like, come on. They're giving you three references from a long time ago that all show its well established. So their invention is the addition of the Dias'as, in which their own inventor describes it, not his invention, but well established. But beyond that, in case that wasn't enough, at paragraph 59, a 317A, and this is Weinstock, Weinstock specifically says, he didn't nail for the idea of the issue, but he says, their argument is what I just described, because it's the only thing that I can say. I mentioned Dr. Weinstock who we had, at least I had a little bit of a colloquial Mr. Wolson about this issue, about the credentials. Well, it's not really the credentials. I mean, I think both sides would agree that Dr. Trainer and Dr. Weinstock are very educated and competent and so forth. But this argument, I think, Mr. Wolson is making, that there's at least for purposes of this case, there's a little bit of a gap in Dr. Weinstock's expertise. And it's true that Dr. Weinstock did candidly make some admissions. What's your response to that? Very, very fair question. I want to first say again, are the echoing observations made previously, that the board was starled in this matter. They looked at the qualifications and that's at A3 and concluded them qualified as I think you're honored to, but let me get directly to the question. His job, he was at, there's three main genome centers in the United States. There's a quite Harvard, one at George Washington, one at Baylor. He worked at two of them as director. The job at those genome centers, I got a large scale, this is a human genome project and follow on work. His job was to go around, and he continued his declaration, to go around and evaluate, advanced DNA sequencing technologies to know what was out there, what was new, what was going to work, and be a beta site and interact with. I can't think of a better position person. On remaining Mr. Wolfson would say, I don't want to put words in his argument, maybe he would say, well, that's fine, he's very, obviously has an important position, he's very accomplished, but it's not a hands-on type of thing in the chemistry like Dr. Trainer or maybe other people are. Maybe on this interpreter, sorry. My point is if you're looking at what the new sequencing technologies are, you need to have an interdisciplinary, obvious, you need to have a knowledge of physics, biochem. He was a biophysics degree, he was supposed to work with Stanford and biochemistry, he would not unsophisticated on what was needed to know. The point, really, the point getting directly what the concern is, which is almost... Well, the board had the opportunity to test the expertise of both of these women. They were brought to the dam for hundreds and hundreds of pages, and that was all briefed and argued for long periods. But the underlying concern, I don't think really, is a qualification of Dr. Weinstock. No, it's not a downward issue. The question is, is the organic chemistry the tough stuff here that's really the invention? I think that's what it is, as compared to the incorporated, if you put that into capital sugar, label the base, which you want to use in the as and what it will work. That's not over-complicated, thanks. And the answer is, we respect the addition of the diase of, which is where they're saying the invention is, their own patent doesn't say that it's any chemistry. It says, go look at these old references, 10 years plus old, you can pour some, and you can find this chemistry. So it wasn't a synthetic chemistry problem because it was so old and the patent doesn't add it. On the linker, I think this is interesting. On the linker, and this comes up in the 869, it's not so important to what's being questioned here directly, but secondarily it is, there's claims where they refer to three different ways to cleave the label when you move into the next base. So that's actually just claim more than that

. What's your response to that? Very, very fair question. I want to first say again, are the echoing observations made previously, that the board was starled in this matter. They looked at the qualifications and that's at A3 and concluded them qualified as I think you're honored to, but let me get directly to the question. His job, he was at, there's three main genome centers in the United States. There's a quite Harvard, one at George Washington, one at Baylor. He worked at two of them as director. The job at those genome centers, I got a large scale, this is a human genome project and follow on work. His job was to go around, and he continued his declaration, to go around and evaluate, advanced DNA sequencing technologies to know what was out there, what was new, what was going to work, and be a beta site and interact with. I can't think of a better position person. On remaining Mr. Wolfson would say, I don't want to put words in his argument, maybe he would say, well, that's fine, he's very, obviously has an important position, he's very accomplished, but it's not a hands-on type of thing in the chemistry like Dr. Trainer or maybe other people are. Maybe on this interpreter, sorry. My point is if you're looking at what the new sequencing technologies are, you need to have an interdisciplinary, obvious, you need to have a knowledge of physics, biochem. He was a biophysics degree, he was supposed to work with Stanford and biochemistry, he would not unsophisticated on what was needed to know. The point, really, the point getting directly what the concern is, which is almost... Well, the board had the opportunity to test the expertise of both of these women. They were brought to the dam for hundreds and hundreds of pages, and that was all briefed and argued for long periods. But the underlying concern, I don't think really, is a qualification of Dr. Weinstock. No, it's not a downward issue. The question is, is the organic chemistry the tough stuff here that's really the invention? I think that's what it is, as compared to the incorporated, if you put that into capital sugar, label the base, which you want to use in the as and what it will work. That's not over-complicated, thanks. And the answer is, we respect the addition of the diase of, which is where they're saying the invention is, their own patent doesn't say that it's any chemistry. It says, go look at these old references, 10 years plus old, you can pour some, and you can find this chemistry. So it wasn't a synthetic chemistry problem because it was so old and the patent doesn't add it. On the linker, I think this is interesting. On the linker, and this comes up in the 869, it's not so important to what's being questioned here directly, but secondarily it is, there's claims where they refer to three different ways to cleave the label when you move into the next base. So that's actually just claim more than that. They claim using photo-topography, using heat, using physical means, and using chemical means. The only thing they disclose in their expert admitted in deposition is photo, using light to dissociate it. They don't explain, they claim it, but they don't explain how you use a linker for chemical cleaving. They don't describe how you do it physically to get rid of the label when you need to get it. But they claimed it all, and claimed 12. And all they showed was the use of photo-topography, light to eliminate it. So the linker can't be the fancy chemistry because they don't give you any embodiment, but they claim it four different or five different ways. They don't have any embodiment in there. The capping the sugar, you would have heard arguments from counsel, formidable as he is, that while capping the sugar, that's hard. How do you do that? You didn't hear any argument that there's a challenge there. So there's no challenge in organic chemistry. I mean, there's, and I don't like sense, but there's hand waving there, because that's the only place left to go when you understand that the diseases are every day. And the rest of it's in reference after reference undisputed based on anticipation rejections with not much of any kind of contest. So if there's not real chemistry to do, what you really want is someone say, well, can you put these pieces together and then we'll incorporate with an end-time in biophysics and biochemistry and microbiology to do. What you're making the argument is, I understand it, it's the right answer is that even if Dr. Weinstock, maybe at the point in time that we're dealing with your wasn't as hands-on in terms of the laboratory, what's relevant to this case he had more than enough expertise? Absolutely. And the board's self-founded. And there's more than, it's Judge Wallace, but there's more than sufficient evidence of that. I mean, this appeal is turning into sort of an argument on a Zindovolo level, because we didn't really get legal arguments, and so I'm contesting them. I think everything I say has got to be through the lens of sufficient evidence. I'm not particularly worried about that, because it's overwhelming. I hope I've laid out where the law starts and the minor addition that they're claiming, and how weak that is as we've described. Now, I want to make sure that I've covered his three arguments. The Weinstock unqualified, I addressed the objective evidence. I don't know if there's anything more on that. It was such a great invention, and he turned the key that opened the door, how come it took so many years for someone else to do it based on different license technology? I think I addressed the licensing, and then the final thing with this invention is a hole. I think the invention is a hole. Yes, of course you have to look at the invention as a hole, but what the reality is, and we've learned this from Graham, is that you have to look at the difference between the art and what's claimed, at least at the art for the obvious decisions. Really, this comes about because they want to ignore that feature, and the board just wasn't due. The board, I think, safely concluded that the disclosure of the cap on the sugar and the label on the base was well known on multiple references. Are there any questions or anything else I can help with? Thank you very much

. They claim using photo-topography, using heat, using physical means, and using chemical means. The only thing they disclose in their expert admitted in deposition is photo, using light to dissociate it. They don't explain, they claim it, but they don't explain how you use a linker for chemical cleaving. They don't describe how you do it physically to get rid of the label when you need to get it. But they claimed it all, and claimed 12. And all they showed was the use of photo-topography, light to eliminate it. So the linker can't be the fancy chemistry because they don't give you any embodiment, but they claim it four different or five different ways. They don't have any embodiment in there. The capping the sugar, you would have heard arguments from counsel, formidable as he is, that while capping the sugar, that's hard. How do you do that? You didn't hear any argument that there's a challenge there. So there's no challenge in organic chemistry. I mean, there's, and I don't like sense, but there's hand waving there, because that's the only place left to go when you understand that the diseases are every day. And the rest of it's in reference after reference undisputed based on anticipation rejections with not much of any kind of contest. So if there's not real chemistry to do, what you really want is someone say, well, can you put these pieces together and then we'll incorporate with an end-time in biophysics and biochemistry and microbiology to do. What you're making the argument is, I understand it, it's the right answer is that even if Dr. Weinstock, maybe at the point in time that we're dealing with your wasn't as hands-on in terms of the laboratory, what's relevant to this case he had more than enough expertise? Absolutely. And the board's self-founded. And there's more than, it's Judge Wallace, but there's more than sufficient evidence of that. I mean, this appeal is turning into sort of an argument on a Zindovolo level, because we didn't really get legal arguments, and so I'm contesting them. I think everything I say has got to be through the lens of sufficient evidence. I'm not particularly worried about that, because it's overwhelming. I hope I've laid out where the law starts and the minor addition that they're claiming, and how weak that is as we've described. Now, I want to make sure that I've covered his three arguments. The Weinstock unqualified, I addressed the objective evidence. I don't know if there's anything more on that. It was such a great invention, and he turned the key that opened the door, how come it took so many years for someone else to do it based on different license technology? I think I addressed the licensing, and then the final thing with this invention is a hole. I think the invention is a hole. Yes, of course you have to look at the invention as a hole, but what the reality is, and we've learned this from Graham, is that you have to look at the difference between the art and what's claimed, at least at the art for the obvious decisions. Really, this comes about because they want to ignore that feature, and the board just wasn't due. The board, I think, safely concluded that the disclosure of the cap on the sugar and the label on the base was well known on multiple references. Are there any questions or anything else I can help with? Thank you very much. Thank you, Your Honor. I want to start by addressing Judge Wallach's question about claims 11 and 12. As you recall, we proposed substitute claims in our motion to amend. We argued the non-obviousness of proposed claims in 25 and 26. They were substitutes for claims 11 and 12. The argument appears on page 8-8-191 of the 698 appendix. Dr. Trainers' relevant testimony is a page 8-191. Dr. Trainers' relevant testimony is a page 8-385. This also is treated in page 22-23 of our reply rates. Let me just throw one more question. I'd like you to answer. We're in the licensing negotiations. Is there a tie to any of the features or inventions on what you've listed? I think you start with the first email that starts us, which is an email from between two of Illuminous Chiefsigners, which is Dr. Jiu has solved the problem that has signed us all. He has solved the problem. You get a back and forth between Illuminous and Columbia. There's an agreement to this. The key email is at page 3993 of the 698 appendix. This is a PIL 1547. Later on, you see, or farther down in the email chain, it's earlier somebody from Illuminous says we don't have a specific project or initiative to do sequencing by synthesis. Then somebody else says currently Illuminous doesn't have a play in this area. Mr. Ryan said, well, this is unsuccessful licensing. This is a tempted licensing. Not consummated licensing. That's true. But there's certainly no doubt that this is a respect for the invention. The whole theme of this is, if you continue reading a couple of pages later, if Dr. Jiu says he solved it, I would believe him is the back and forth between the folks in Illuminous

. Thank you, Your Honor. I want to start by addressing Judge Wallach's question about claims 11 and 12. As you recall, we proposed substitute claims in our motion to amend. We argued the non-obviousness of proposed claims in 25 and 26. They were substitutes for claims 11 and 12. The argument appears on page 8-8-191 of the 698 appendix. Dr. Trainers' relevant testimony is a page 8-191. Dr. Trainers' relevant testimony is a page 8-385. This also is treated in page 22-23 of our reply rates. Let me just throw one more question. I'd like you to answer. We're in the licensing negotiations. Is there a tie to any of the features or inventions on what you've listed? I think you start with the first email that starts us, which is an email from between two of Illuminous Chiefsigners, which is Dr. Jiu has solved the problem that has signed us all. He has solved the problem. You get a back and forth between Illuminous and Columbia. There's an agreement to this. The key email is at page 3993 of the 698 appendix. This is a PIL 1547. Later on, you see, or farther down in the email chain, it's earlier somebody from Illuminous says we don't have a specific project or initiative to do sequencing by synthesis. Then somebody else says currently Illuminous doesn't have a play in this area. Mr. Ryan said, well, this is unsuccessful licensing. This is a tempted licensing. Not consummated licensing. That's true. But there's certainly no doubt that this is a respect for the invention. The whole theme of this is, if you continue reading a couple of pages later, if Dr. Jiu says he solved it, I would believe him is the back and forth between the folks in Illuminous. This is not just in 2005, 2006. 2006, the negotiations break down. Columbia licensed somebody else. Illuminous jumps into the market by acquiring another company and immediately has success with the products of the body of this invention. Interestingly, well, in 2008, 2009, 2011, there were still discussions. Illuminous still saying, we would have really liked to license the Columbia patent. But we have a problem with the fact that you licensed somebody else. There's some more discussions. I'd love to come and see your lab. Let me fly from San Diego to Boston. I'll be there as soon as I can. This is definitely respect for the invention. I mean, no question. I think if I could answer just one technical point about the purines and the pyrimidines and the C7 and the CA. So there are four bases, of course, in DNA. Two of them are purines. Two of them are pyrimidines. The two purines are larger. They're double rings. And so that creates part of the problem about putting the, you know, where to put the label by the cleavable linker so it doesn't get in the way. What Dr. Chen thought was mistakenly was that the eight position was the right one, but the eight position is not the right one because of spatial consideration. So you, in order to make it work best, you have to put it at a 7. The problem is the 7 in a natural purine is a nitrogen. And that's not good for the bond holding the cleavable linker. So you have to change the nitrogen to carbon. You have to make one, I should say, that has a carbon rather than an nitrogen. And that helps with the bond. Now, Mr. Ryan said, well, like everybody knew the azopurines were great. The azopurines were used in sangive sequencing

. This is not just in 2005, 2006. 2006, the negotiations break down. Columbia licensed somebody else. Illuminous jumps into the market by acquiring another company and immediately has success with the products of the body of this invention. Interestingly, well, in 2008, 2009, 2011, there were still discussions. Illuminous still saying, we would have really liked to license the Columbia patent. But we have a problem with the fact that you licensed somebody else. There's some more discussions. I'd love to come and see your lab. Let me fly from San Diego to Boston. I'll be there as soon as I can. This is definitely respect for the invention. I mean, no question. I think if I could answer just one technical point about the purines and the pyrimidines and the C7 and the CA. So there are four bases, of course, in DNA. Two of them are purines. Two of them are pyrimidines. The two purines are larger. They're double rings. And so that creates part of the problem about putting the, you know, where to put the label by the cleavable linker so it doesn't get in the way. What Dr. Chen thought was mistakenly was that the eight position was the right one, but the eight position is not the right one because of spatial consideration. So you, in order to make it work best, you have to put it at a 7. The problem is the 7 in a natural purine is a nitrogen. And that's not good for the bond holding the cleavable linker. So you have to change the nitrogen to carbon. You have to make one, I should say, that has a carbon rather than an nitrogen. And that helps with the bond. Now, Mr. Ryan said, well, like everybody knew the azopurines were great. The azopurines were used in sangive sequencing. I mean, they were used for two different reasons that are completely irrelevant to sequencing by synthesis. The first reason they were used, and this is CLA, had to do with the fact that when you're, when you're sequencing, you know, bases that have a lot of GC, GC, GC. They tended to kind of clump together. And for some reason, you know, people were trying to fix that. And CLA figured out that the azopurines switching into a diazopurine from a regulatory would solve that problem. That is nothing to do with the problem that Dr. G was facing. That has solely to do with the process of electrophoresis, which is, under sangour sequencing, which wasn't satisfying the people, because it takes a really long time, and it can't be automated the way that sequencing by synthesis can be. The other was a separate problem that Dr. Prober figured out, and you know, this was a significant advance, no question in sangour sequencing, which was, you have to keep a, he figured out you put the label on the base. The problem with his electrophoresis is a very kind of harsh process. And what he figured out was when you were sort of playing out all the strands, if you use a diazopurine instead of a natural purine, the label will stay on. And his label is an uncleavable linker. So it's totally different from the whole, you know, there's no question. You know, Prober made an advance in sangour sequencing. But the whole problem of the problems that they're trying to solve are totally different from the ones that Dr. G was solving, which is where would the label fit so that it could, so that it could not get in the way of everything else. And it has to be cleavable because when you detect the label, you know, there's a cap, you detect the label, and then the cap and the label have to fall off so that you can then repeat the process. All of those put together that fundamentally are what may SDS work as well as it has, and those fundamentally, all those put together are what Dr. G can see. Thank you. Thank you. I'll look at both counsel and the cases. Thank you.

1,2,3,4,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5 5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5 5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5,5 disk, that shouldsell here, that would be better. 254A, 14150, Trestes of Columbia University vs. Luminon. Mr. Wilson, 24 minutes to start, whenever you're ready. Thank you, Your Honor, and may please record. These appeals arise from future part-age review of three related patents on aspects of DNA sequencing technology invented by Dr. Jane Wei-Jue, a Columbia University. Dr. Jue invented novel nucleotides for use in a method of DNA sequencing known as sequencing by synthesis. Now, the general concept of sequencing by synthesis was proposed in the late 1980s, but for 10 years after the idea was first proposed, researchers had made no progress in developing a nucleotide that would actually work. What researchers found was this was a highly unpredictable part, and each feature of the nucleotide potentially affected whether the nucleotide could be incorporated successfully by the polymerase. What Dr. Jue recognized was all of the elements that the incombination were necessary for high throughput commercially viable sequencing by synthesis that would actually work. Let me just throw you a little housekeeping question to start. In the red breath at 48, alumina says Columbia weighed its argument between 11 and 12 because it's seen non-arriousness in the interpolice review. Did you argue on obvious? We did, Your Honor. Yes, we argued non-obviousness for 11 and 12. Where would that be in the rest of the... I'll need to check the record. Okay. Yeah, let me know on that. To return, it was the complete combination of features that were necessary for a sequencing by synthesis would actually work. A removable cap on the 3-Primo-Age group and a label on the base and a cleavable linker, and using a diapyrrine to connect the linker to the curing. What do you say? I'm sure I'm mispronouncing it. You know a pet in the scene or sign. Dr. Chem. Okay, I had it wrong all the way. But what do you say that reference does not teach? That, well, two things. That reference does not teach a nucleotide that has a combination of base labeling, cap on the 3-Primo-Age and cleavable linker. So although Dr. Chem certainly does propose three different possibilities for sequencing by synthesis. You know, and his main focus is certainly on the 3-Primo-Age, not on the base labeling. He does mention the combination. He does, but he never puts those three elements in combination. And he certainly does not teach himself a diapyrrine. So the question is that I think we're the board fundamentally went wrong. The diapyrrine from Prober, correct? Well, he did not say it's saying it. He did not get the diapyrrine from Prober. Exactly. He's certainly site prober. And he also sites another reference, sarfety, we're saying, you know, it's possible to put fluorescent, it's possible to put labels on base in, you know, ways that might be useful. But the thing is you have to keep reading. And when you turn the page, you see he's getting what he's citing Prober for is labeling primitives. Well, he's not citing Prober at all for labeling purines. And in fact, when he talks about labeling purines, he says, oh, the, you know, the place, the best place to label a purine would be on the eight position, not the seven position, which is what Prober had proposed. And Prober of course had proposed that for a different technology, which is sangr sequencing. Now, you have to think about what was the reason why Prober was interested in the diapyrrine. And the reason why he was interested is very different from the reason why Dr. Jew found that the azopurine to be very useful. Fundamentally, Dr. Jew found that the azopurine to be very useful for a spatial reason. That is, he, the researchers who had tried and failed during the 1990s to solve the problem of sequencing by synthesis, had all, there was a recognition that there was a spatial problem. That is, where were you going to put the label physically so that it wouldn't interfere with other reactions, either the, pull the right on the sugar. Pull the right, some people had tried putting on the sugar. And that, if those efforts to put it on the sugar had continued well into the 1990s, and a few researchers had said, it's very strange, you know, this seems like it ought to work. But for some reason, it's not working. Notably, they did not say, since it's not working, let's try putting the label on the base, even though they were well aware of Dr. Chen's paper. So they weren't drawing the lesson from those experiments that they, that illuminates says they ought to have drawn from putting Chen and Prober together. What they were saying is, let's try something else. Let's fiddle with the polymerase or let's do something else to the molecule, not putting the label on the base. What Dr. Chu recognized? In sort of a post-KSR world, if you will, doesn't the combination, at least in terms of the 698 head of Chen? That's how I bring out the technology. That's how I bring out to anyway. Doesn't that combination, that reference with Prober, gets you pretty far in terms of... I don't think that's right, Your Honor, because this is not a mechanical pattern. In other words, we're dealing here with a very unpredictable heart. This is very advanced synthetic nucleotide chemistry. And as Columbia's expert pointed out, anytime you change any aspect of a nucleotide, you change, I'll put the label here, I'll put the cap here, I'll change which cap I use, I'll change which is cleavable. Linker I use and Prober doesn't have a cleavable linger at all. That could alter the reactions. That could make the reactions... I appreciate what you're doing. I appreciate your rescuers. Very good background, helpful background. Thanks to me, though, the reality we're living under is you've got a very, very, very detailed forward opinion. And you're left, so, I mean, is there anything here that you're arguing that doesn't get substantial evidence difference for the forward in terms of its finding? And can you identify there what, what, what wrong? Because they go through, I mean, meeting the opinions, they're very detailed, they go through all of the expert testimony. And they draw a very clear picture, which just to be frank, very candid with you, strikes me as very complete and thorough. So, I would say there were three fundamental errors that the board made. The first fundamental error is, I think, and this is most manifest in its treatment of the objective evidence, the board fundamentally is suffering from a kind of hindsight bias. And the board did not really treat the objective evidence in the case as, you know, sort of an independent, an independent way of looking at the evidence, obvious in a sense, sort of really seeing was there, you know, was, you know, you might see looking back on what had happened. You might say, oh, it was all laid out in a path by the technology, but the objective evidence tells a very different story. I mean, in particular, the licensing evidence. That tells us that when there was a report of Dr. Jou having solved the reversible terminator cleavable die issue, illuminate immediately spraying into actions and we'd really like to license this. You know, we don't have a play in sequencing by synthesis. How can we talk to Dr. Jou? You know, we trust what Dr. Jou says, and he says that he's solved this. And there were extensive negotiations with Columbia about licensing. Eventually, those negotiations didn't fare fruit because Columbia chose a different licensee. But there certainly no indication that they didn't fare fruit because, you know, the parties value the technology very differently. And there's no question that aluminum is effort to license this technology. It was about this technology. I mean, the parent patent to this is in the list of technology that Columbia provided aluminum under the, they had a confidential disclosure. Do we know at the time of licensing whether aluminum knew about the GNPAT? Well, I mean, the gen, of course, the gen is a patent application, not a gen patent. I mean, there's no indication. I mean, they certainly don't say in their email traffic, oh, you know, this is, you know, what we really understood is the gen technology. I mean, I think to the contrary, since it was praised that Dr. Jou has solved the reversible terminator cleavable die issue. There was a recognition that the technology had, that advances in the technology have stopped. And there was a problem to be solved. And that problem was solved by Dr. Jou's, Dr. Jou's insight, fundamentally his, his spatial insight. So you have the, you know, aluminum is e-curned to license the technology. You know, you have the, the aluminum, sorry, aluminum is commercial success. And here the board did make a fundamental legal error, which is the board did not apply the presumption of nexus that this court has stated in several opinions comes from when you have commercial success from a product that embodies the invention. There's a presumption that the commercial success is due to that, that invention. And the burden then shifts to aluminum or then is, I should say, is on aluminum to show. And what did the board say here about the commercial success? Well, the board says that the commercial success, the board says that Columbia has not shown that the commercial success was due to, you know, only to the diaspuring and not to, you know, not to the technology that was on the board. And the board didn't say it was due to, you know, extraneous factors like customer service or something like that. But that is another, I think, basic error in the board scope of its decision because you have to look at the invention as a whole. Yes, there were elements of the technology that had been discussed in different places. But who's burden is that? I mean, if there's some elements that were in the prior, our elements of the whole and there's one additional one. And the board concludes that you have, aren't you, isn't your obligation to show that for purchase of commercial success, that it was the inventive portion of that that led to the commercial success? Well, I think if we, I think if we, you know, we are entitled to a presumption that it is if we produce evidence, I mean, we certainly have a burden of production. And we satisfied that burden of production by showing, you know, aluminum products embody the invention. And there's not really a dispute. The board didn't really doubt that. Aluminum has had commercial success with that invention. The board didn't really dispute that. And, you know, you have to really look at the invention as a whole because it's not like the three pieces together were working. And then it's not like the aluminum had a car and Columbia proposed to put an equipment on the car. You know, the three pieces together either separately or together, that aluminum says were in the prior art, the space label, free primal wage cap, and Cleveland linker, those three pieces together were never working together. There was no, there wasn't any commercial embodiment that together had been used, what certainly was successful. It was with the addition of the de-azapurine that the whole end de-azapurine attached to the base by the Cleveland linker that the whole thing really works and works dramatically well. So that I think is, I think, you know, the board said, well, you have to sort of see what sort of what the prior art was readily, you know, what was readily available in the prior art. But I think you can't just look to sort of see a radical possibility that there might have been things available in the prior art because nothing was on the market, nothing was actually working. So it's really only again with the, it's really again only sort of like putting together all the pieces, but not just putting together actually synthesizing them from scratch. I mean, this isn't a mechanical art. We were just a question of taking a, you know, a rotor off one place and putting it off another. I mean, as, as aluminum, sorry, as Columbia's expert explained, starting from the prior art and developing the chemistry that it would be necessary to get you from point A to point E was enormously complicated. And one thing that the board didn't really resolve or appreciate was, you know, who is competent to testify about how complicated it would be to get from point A to point E. Columbia had a chemistry was able to explain all that. I mean, my sense was that both Dr. Trainer and Dr. Weinstock, essentially, were both very qualified. And is this sort of a downward issue is to, that you're saying Dr. Weinstock wasn't qualified? Well, it's, Dr. Weinstock disclaimed the ability to talk to the chemistry that would be necessary to either synthesize, to synthesize the nucleotide, the brand new nucleotide. So he really was not able to talk to the question of how complex the chemistry would be. Now, aluminum is response to that is, well, if he had chemistry, you know, a higher level of skill would have only meant, it was more obvious. But I think what that argument really doesn't appreciate is really it's a person with the advanced chemistry who can really appreciate how unpredictable the chemistry is in synthesizing nucleotides and in synthesizing nucleotides that are not natural so that they're, you know, they don't, they're not analogous to the natural. That's right. Is your argument was basically that that somehow the aluminum case is weaker because Dr. Weinstock didn't have, while he's a competent gentleman, didn't have, in your view, the particular expertise background that was necessary for the subtle issues in this case. He did not have the background or and he disclaimed the expertise to testify about issues that I think are the core of this case in particular, reasonable expectation of success in synthesizing the nucleotide and a reasonable expectation of success that the nucleotide would actually work, that it would actually be incorporated by a polymerase. And I think that the defect in the luminous argument is actually shown by the board's decision on those two very points because the board's decision on reasonable expectation of success of the polymerase doesn't rely on Dr. Weinstock at all. I mean, the board really relies on what I might call its own expertise, which is really a kind of a burden shifting where they say, well, you know, Columbia hasn't persuaded us that there are these two sort of, these two technologies that seem to be working separately, three primo-age cap and labeling base. We just speed the premise of that, but even putting that aside, Columbia hasn't persuaded us that it wouldn't be perfectly sensible to put the two together and that they would work perfectly well. We seem to see at least some from time to time as the argument that the board has gone too far in its in relying on what I think you just described or referred to as its own expertise. Do you see that as an issue? I see that as a very significant issue here. I think that's a kind of a fundamental issue. In what particular area do you say the board overstep that then? I think you see it most is most salient in reasonable expectation of success because in reasonable expectation. I think around cages, I've got, sorry, I'm looking at, I mean, it's appealed on the 1547, which is the 698. And I've got, I'm also sick that the page 834. So, the first thing I would say is when you look at sort of the page 826 and 27. So page 826, if you see there's an italicizer, was there a basis for reasonably expecting that a nucleophile with a removable three primo-age cap, etc. I mean, one problem with this is the board actually doesn't even answer that question. If you read the second paragraph, it's talking about an argument that Columbia is making. And they say opening line with second paragraph, this argument is not persuasive indicating to me that essentially they're placing the burden on Columbia to show why it's not obvious. But then if you look at the last paragraph, the last sentence, secondly, a preponderance of evidence establishes a reasonable expectation of success as it's rest above. It isn't the rest above. There's just no analysis of reasonable expectation of success, of incorporation by the polymerase. I'm not going to. I mean, I realize that, you know, the other place where I think this... I mean, before the quote that you had the question, it says in some, the ponderance of evidence establishes there was a reasonable expectation of success. So what precedes it, the analysis, the preceded, the support of that? Well, and they're talking about... If that's what the board means, you see, Your Honor, then all that they're talking about here is arguments by Columbia that they've rejected. And they don't rely on any arguments. They don't rely on any evidence by Dr. Weinstock. And on the previous page, there's a... On A24 and A25, which is I think where you have principally the discussion of reasonable expectation of success, of actually... of incorporation by a polymerase. You know, they do... There's a lot of discussion about how Dr. Trainer didn't explain or Dr. Trainer didn't... Dr. Trainer didn't persuade us. There's no discussion at all of what Dr. Weinstock did, what Dr. Weinstock said. So I think these pages are examples of where the board's decision literally lacks substantial evidence because it doesn't rely on any evidence presented by Illumina. And we infer that it only could have been relying on its own expertise, which under decisions like, you know, Brandy Miller, is not for miscible under... It can't be upheld on the agenda. Excuse me. You start off by saying there were three specific problems in the board's decision. It was hindsight. Right. And the second one is... So the second one are the kind of burden shifting... What you just described. A burden shifting... What I just described, and I also think burden shifting, you also see that in the... in the hindsight. And then the third I think is fundamentally the board's failure to really appreciate that the question here was about the... the invention as a whole. And I mean, that point sort of overlaps on some other points I mentioned, but the board sort of points to, you know, individual features in the prior art... without appreciating the challenges of combining those features. You know, even no prior art, even Dr. Chen suggested combining even the three features, based on labeling the free primoage capping and Cleveland Linger into a single embodiment, excuse me. And certainly no prior art suggested combining the fourth feature of a de-adapurine, which was what made it very useful to attach the label bi-ethleivable Linger. And then the board sort of dismiss a lot of those difficulties by saying, well, it would have been obvious. I mean, for example, you see in the board's discussion of Stemple and Anazawa, which is in the 1548 field. The board says, well, Anazawa's flawed, you know, his chemical processes are actually don't work. And the board says, well, you know, some skilled in the art would have figured that out. You know, they would have figured out how to use prober to fix Anazawa. You know, there's no evidence of that. You know, that's first of all a burden shifting, and there's not any evidence of that in the record either. But fundamentally, I think going back to maybe an objective point, the board also sort of lost sight of the fact that Chen and prober are from 1990 and 1991. And there's a 10-year gap where researchers are persistently trying the path that Chen laid out, which is put the label on the free primoage cap. That is no question he's preferred embodiment. Researchers tried that, and researchers failed. And they couldn't figure out what was wrong. They couldn't figure out what the solution to that was. I think the board, this loops back into hindsight bias, but the board fundamentally fails to sort of appreciate this is long period of time where it just doesn't seem to be the right answer. And that I think is, what are you saying? This is kind of a quasi-secondary consideration in the passage of time. It's kind of a long-felt needs type argument, but it's also, I think, a response to aluminum. I mean, one thing that aluminum has said is, you know, really the free primoage cap label approach was, I think they used a term fading alternative. And everybody knew that everybody had recognized that the base labeling was really the more promising thing. But that's when you look at the evidence aluminum points to it, when you look at the researchers who are working in this field in the 1990s, they're trying to put, they're not all put side on his out. But the others, Welch, Netscher, they are trying to put the label on the free primoage cap well into the 1990s. They're trying and they're failing. And they don't, they don't draw from their failure. The answer that Dr. Jew drew, which is, put the label on the base with a cleavable linker attached to the purine through a deacetyrene. When we hear from the thank you. Evera Rhine, on behalf of Alumina, may I please the court first to address the housekeeping issue. There was no defense of claims 11 and 12 in the patent owner's response, which is an A2167. Moving to the more fundamental question, what the board found and didn't have substantial evidence, the board started, because I think where we should start today and is on a substance to right place to start, which is what would the interest level in the art in capping the sugar and labeling the base? Because that's really what they're claiming is the event of doing sequencing by synthesis, where you cap the sugar, which you put the base, not on the sugar. I mean, no, not on the sugar, but on the base. And we've heard here nobody showed it. We've heard all kinds of arguments about how this was disfavored and so forth. And the board said, we hear you. You're articulate, but that's not what the evidence shows. What the evidence shows in Dauer, Stample, and Shen is that that combination was taught. And in fact, once the last thing that council stated was that clearly in Shen, it was a disfavored version of the invention. You'll find nothing in there that says that it's any last favorite. In fact, if you read the invention, you can just take a fresh document and read Shen, some of the invention. He says, we want to move away from electro free, so we're going to do sequencing by synthesis, and there's a number of ways you can do it. I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was, I was the act of pureing with the combination of the cap on the sugar and the bass label. The bass label. Because in Chen, Chen, Chen, Chen, Chen, Chen, Chen, Chen, Chen, Chen said, use the eight position use the eight position to attach the cleavable label when you use the cleavable label when you use it on the bass and the claim requires the adipurinate to set. Okay, there is a avalanche of reasons that, behind that, I can start with this. I mean, I, would you like to want to, I'll bring a few more. Yeah, let me just, let me just one question. Thank you. Well, just to go back to the point you were making about the discussion, I mean, the board recognized that Columbia may be right that Jen didn't say that the base labeling was the most favored, but what it said, which I think is the correct statement of law, is that that didn't constitute it teaching away, and just because there was a preference for one thing in Jen, does not mean that the other disclosures in Jen weren't useful or necessary. Spot on. And I think, but it's even just, the way I think of it is, real commonsense level, it's part of his invention. He's saying, I made an invention, and one way you can use my invention is to cap the sugar and label the base. So why would that be something you wouldn't want to do if someone's, why would I, I mean, not about the licenses. I mean, that's good evidence, is it not? I don't, I don't think, I don't think it's much evidence at all. I mean, first of all, it's unconsumated. I don't think there's ever been a case by this court where an unconsumated, I mean, respect for the patent is your licensing it. I think having prevailed in a, in a reexam after refusing to act, we asked to a charge of infringement is the opposite of respect. And we're sort of here because we didn't license it. So it's sort of back, we're not, say that we're respecting the patent by our conduct. What happened was there was initial license discussions. Importantly, we ended up licensing this technology from selector, which invented, there's a simultaneous invention, the evidence is in the record, there's no real contest about that. So we got the technology that we used. We did, these claims didn't exist when they began. And then what you see is after 2007, 2008, this Columbia's approaching a little bit about patent, saying, look, we have patent, do you want a license? And we basically said we found a better solution. I mean, it's an unconsumated license. It hardly shows respect. It's not tied to any of the patents. It's not tied to any of the claims. And it's not tied to the feature that they say is inventive. I mean, the reality is, by the time you get through this record, they can't say that capping the sugar and labeling the base is theirs, because the hour, sample, and Shen all show it, and they don't even really contest that. Now, one thing they do say, I mean, the most they can say about Shen and this embodiment is, you have to cobble together. It's sort of a little bit of a one from Colomay, one from Comvey, and you'd be befuddled. Their own expert at page A3794 states that Shen discloses an alternative nucleotide analog which includes a label attached to the base and the possibility of the label being attached to the nucleotide analog by means of a cleavable feather. That's paragraph 28, A3794. And the board pointed that out and said, your own die acknowledges that Shen teaches it as his invention. And there was no arguments about the hour, and there was no arguments about the sample. So any idea that there's this fundamental teaching that they have that you can cap the sugar and label the base just doesn't go anywhere because it's fully disclosed in the art. And that part of the combination with provost. Okay, so let's talk about the DIAZE addition. So the reality is that everyone agrees that during the course of the 90s, DIAZE purines were ubiquitous. That's the word their own attorney used in before the board. That's what the board doesn't title to rely on, they're ubiquitous. The ASE purines were so ubiquitous, you could buy them from a manufacturer made a resin. And why you need a chemical degree to do that. Applied bio systems is mentioned in the record, others are mentioned in the record. On top of that, R.A.R.S.P.R.R. Dr. Weinstock explained that the databases were used in the context of sequencing by synthesis. In the context of a cleavable linker. That's a paragraph 44 at A3177. So if you could just buy them off the shelves and attach them, it just makes it stronger. I can, it's chemistry but we can explain it relatively simply. It says instead of using on the base the nitrogen, which has three bonds, replace it with a carbon with four bonds, it's stronger. And it's not like that's a discovery. It was ubiquitous. Everybody was moving to Diaz's because when you put the label on the base, it would be stronger. One of the things that Mr. Wilson focused on in his argument was this 10-year gap that you heard him describing that. What do you have to say? That's an interesting point. What do you have to say about that? I was surprised. It sure has been said. I must admit that when I looked at this record, that's the question that comes to me, because I actually think of all the things that kind of long felt neat can sometimes be a helpful tool. So what will I, I think people do it? The answer is A, people did do it because what that ignores is that's treating Shen in isolation, not the record that's here, which is a sample endower that's at least two others that did everything. Keep in mind, in these PTA proceedings, they're still looking at like reference by reference. We had numerous, numerous references and you just have to narrow it down at some point. So there's three places where they have that combination, but even more to the point, and the one that just sort of said, all right, there's nothing to this argument in my mind, is the commercial success that they're claiming, really started in 2008, which is almost 10 years after they came up with their so-called invention. It's sort of, let's go back to first principles, right? That's always the useful thing to do. We start getting caught into who's burdened and burdened persuasion and proof and going forward and all that legal ease. When you ask yourself the common sense question of what's commercial success supposed to show? It says, well, if there's this big golden ring that you can grab, why wouldn't anyone have done it? Wouldn't have people been motivated to grab their ring, right? Well, if the ring was grabbed in 1999 or 2000 when you came up with what's that, what's a paper patent? How come it took 10 more years to make it something that was worthwhile in commercial? And the answer to the question is, experimentally, people knew that this was something you could do. They knew that you could demonstrate it, but to scale it up, there's so much more. And this goes to why all commercial success, the argument doesn't work. You need the arrays, you need a lot about the prep. There's actually a ton of technology and how you prepare these arrays with so many different parallel nuclear times. So there's so much to that and the optics and everything else that you have to get right for it. Everyone wasn't sitting around waiting for June to resolve this in 2000 to get this done. And, Amar Shem, what did you say? Are you saying, starting with, there were a lot of issues not related to this invention that were impeding the process, if you will? Of making it a high-food put commercial gold mine. That didn't happen until the record will show, there's some claim that 2007 or something like that. It's really 2008 before they have actual evidence of any large scale sales bias. But the other point is, you would think if it was a long-felt need and this person broke through, because they had the stroke of genius, which is sort of the implication they're trying to give you. Then why would Amar Shem did it at the same time, selects it at the same time, the hour did it, stemples did it around the stemples 1999, it's prior art, but it's right beforehand. So other people did it. And there's just no base, and interestingly, some of the things invention, everyone used the ashes. So when you look at the Amar Shem technology, you look at the Alexa, which is what we licensed in. Everyone used the ashes, because that makes the stronger bond. But one thing I want to give back to was the motivation to use the ashes, because it became pretty clear from the Ford's initial institution decision that they're a central invention. And if you read the patent, what they say the invention is, I mean, if you read the patent, what the invention is, is the cap in the sugar and labeling base. That's what they're saying, the invention is. And then we came back with this avalanche of evidence, like three different anticipatory references, more, but at least three, and they just said, all right, well. And they dropped back, and they said, well, it's the addition of the DIAZ and had a dependent claim. That's not what the summary of the invention is telling you they invented. But that's why there's a little bit of, when you hear dissonance from the other side, argument that's what it is. So they're now trying to say it's the DIAZ and we put in pages of evidence, I think about it, 20 paragraphs from WinesDoc, nailing this issue. That it's GC, that the DIAZ avoids GC rich problems, that the DIAZ just makes some more stable linker that you'd want, and all, and that you could buy it on the street, all that stuff's just a record. So now what's happened is on appeal, and they lost on that attempt to rely on the DIAZ as the real true nature of the invention, they're shifting back to other things. And none of the three arguments that they've made is at all persuasive. I can go through the three errors that they're saying, and won't repeat myself, because I know how important everyone's time is. But starting with the objective evidence, there is no more, the commercial success, play I think about it, the commercial success of Illumina, is no more of a story of greatness for the Jew invention, add it is for dour or sample or shan. Because all of them have the combination of capy, the sugar, and labeling the base. So what the board says is, well, if you're addition of the DIAZ, which is what distinguishes you from those references, look, there's anticipation references here. We didn't hear anything about that, and there's really what like a paragraph of argument, where they make the argument like in Shen that you have to cobble it together. They don't really contest the dour, sample, and Shen disclose everything but the DIAZ. You wouldn't get that from the argument, but if you look at the anticipation rejections, that's what you get, because they don't have an argument. That's how you get that. The DIAZ spring comes from prober. Well, there's multiple combinations, and I'm glad you asked that question. The DIAZ comes from prober, but it also comes from the level of skill in the art. The fact that you could buy one on the street, the fact that it was ubiquitous, the fact that Ciela, which is another combination, so this is one of the references before the board, with the combination of Shen and Ciela. The name of it is the 7 DIAZ appearing patent from the 80s, and in there they say, this is great. It makes a stronger label, and it prevents secondary structures, this GC-Rage problem. Go on. I mean, the whole patent is about using DIAZ in your DNA. And then they say, use it for anything where you're having a DNA sequencing reaction, not limited to Sanger. They will tell you that it's limited to Sanger. They're arguing it depends on them, and how can they win if they otherwise? Well, it was focused on Sanger in the program. That was the focus. But I'm not so much Ciela. Ciela, okay. Old Ciela says, forget, old Ciela says, prober is a landmark reference that taught determinators and had a whole bunch of technology. The reason they cited it, it's such a fundamental reference. Everyone goes back to prober. But Ciela in many ways is a more interesting combination, because Ciela said, use 7 DIAZ is their great for base labeling. And what they, I think what's important to understand in Ciela is that in Ciela, they do not limit themselves to Sanger. They say anything with the DNA sequencing reaction. Well, this is the DNA sequencing reaction, and it's no different. In Sanger, you had a cap that was not removable on the sugar. Here you have removable, and that technology's trivial, making it cleavable for Sanger. I don't know if people, they don't even argue about that. So, that already had the adjustment here and said, use the 7 DIAZ here for a former base. It's what's the difference? Removal, undownruval. And it says, if you're using a polymerase and endime to incorporate the nucleotide, where a good option for you. And that's in the 80s. That's the Ciela reference. That is one of the combinations. Now, in prober, let me go through, I think it's worth discussing going through prober, and how that's referred to in Shen. In Shen, at page 28, on this occasion, it's kind of easier to use the internal paging rather than the panics. But for a reference in the Pio 1547, this is a A3O29. It states at page 28, prober shows at line 17. Prober shows enzymatic incorporation of fluorescent GDNTPs by reverse trans-5Dase and sequenase. You talked about your reasonable expectation of success. In Shen, he's saying, when you label the base. Look at prober, because prober was labeling the base, and it was incorporating just fine. And he also had a cap on the shoulder. And they say, this works fine. So what would one skill in the art would look at prober to understand what worked, and that would be the DIAZI design. And again, they did really develop this argument in front of the panel, but I mean, you know, it's sort of the best thing they got on DIAZI. I just say, to accept this argument, you have to ignore that as ubiquitous, ignore all the wine stock evidence that's more than sufficient evidence alone, ignore the seal of combination, and ignore the seal of teaching, and ignore a lot of the things that are documented in our briefs about why someone would use it DIAZI. But they argue on page 29, which is the very next page, that the C8 position of the purine structure presents an ideal position. So that's what Shen like. But that doesn't nullify the idea of using a DIAZI, especially since everyone points out the written. I know there's a difference, but what is the significance in the science between you're being on a C7 or C8 position, generally? I just don't have a sense as to whether that makes a lot of difference or not. I don't know if it makes a lot of difference, but the C7 position is where you can substitute the nitrogen for the carbon, and therefore get a stronger bond, which you can't do it at the C8. I don't know if you can. I don't know that people explored that. But like I said, the real point is over the course of the 90s, everyone moves to DIAZI. So, as I said, their argument isn't that DIAZI is working ubiquitous, and their argument isn't that when you base label everyone was using DIAZI as you can buy them commercially. They're on expert trainer, it acknowledges that, and he has to. Their argument is somehow if it was grave and standard for sangress sequencing to get a really strong label of the base to the label in sangress, that wouldn't translate over to sequencing by synthesis. That's the best form of the argument. But the problem with that among other problems is in the fact that they've never explained the reason why anyone would care about that difference. You hear it's all unpredictable, it's chemistry unpredictable. This panel, too, is very into the flow of that kind of, all chemistry isn't unpredictable. In fact, we've established here that they, I mean, maybe the most important fact on this, and maybe this is where I should start it and maybe I'll regret it when I relish into this, is that Jew himself, when he wants to describe the use of the adipurine, says this is just well established and refers to prober and refers to Lee and refers to Hobbes. And doesn't explain how to do it. This is this unpredictable science, he just says, well, so well established. You know what it is. Your people say, that's blinding, as this court knows, but it's also just common sense. If he doesn't want to have to describe how to do it, how unpredictable is it? And if he's just saying, and this is, he says, describes this as well established and then cite three different references. Now they make arguments, and I thought some of them did border on more week than you'd like to see, was that, well, because there's three different references cited for how well established it is to use Dias'as and how easy the chemistry is, that it's some combination of the three, which is complicated. I actually argued that, I think in the reply brief, it's like, come on. They're giving you three references from a long time ago that all show its well established. So their invention is the addition of the Dias'as, in which their own inventor describes it, not his invention, but well established. But beyond that, in case that wasn't enough, at paragraph 59, a 317A, and this is Weinstock, Weinstock specifically says, he didn't nail for the idea of the issue, but he says, their argument is what I just described, because it's the only thing that I can say. I mentioned Dr. Weinstock who we had, at least I had a little bit of a colloquial Mr. Wolson about this issue, about the credentials. Well, it's not really the credentials. I mean, I think both sides would agree that Dr. Trainer and Dr. Weinstock are very educated and competent and so forth. But this argument, I think, Mr. Wolson is making, that there's at least for purposes of this case, there's a little bit of a gap in Dr. Weinstock's expertise. And it's true that Dr. Weinstock did candidly make some admissions. What's your response to that? Very, very fair question. I want to first say again, are the echoing observations made previously, that the board was starled in this matter. They looked at the qualifications and that's at A3 and concluded them qualified as I think you're honored to, but let me get directly to the question. His job, he was at, there's three main genome centers in the United States. There's a quite Harvard, one at George Washington, one at Baylor. He worked at two of them as director. The job at those genome centers, I got a large scale, this is a human genome project and follow on work. His job was to go around, and he continued his declaration, to go around and evaluate, advanced DNA sequencing technologies to know what was out there, what was new, what was going to work, and be a beta site and interact with. I can't think of a better position person. On remaining Mr. Wolfson would say, I don't want to put words in his argument, maybe he would say, well, that's fine, he's very, obviously has an important position, he's very accomplished, but it's not a hands-on type of thing in the chemistry like Dr. Trainer or maybe other people are. Maybe on this interpreter, sorry. My point is if you're looking at what the new sequencing technologies are, you need to have an interdisciplinary, obvious, you need to have a knowledge of physics, biochem. He was a biophysics degree, he was supposed to work with Stanford and biochemistry, he would not unsophisticated on what was needed to know. The point, really, the point getting directly what the concern is, which is almost... Well, the board had the opportunity to test the expertise of both of these women. They were brought to the dam for hundreds and hundreds of pages, and that was all briefed and argued for long periods. But the underlying concern, I don't think really, is a qualification of Dr. Weinstock. No, it's not a downward issue. The question is, is the organic chemistry the tough stuff here that's really the invention? I think that's what it is, as compared to the incorporated, if you put that into capital sugar, label the base, which you want to use in the as and what it will work. That's not over-complicated, thanks. And the answer is, we respect the addition of the diase of, which is where they're saying the invention is, their own patent doesn't say that it's any chemistry. It says, go look at these old references, 10 years plus old, you can pour some, and you can find this chemistry. So it wasn't a synthetic chemistry problem because it was so old and the patent doesn't add it. On the linker, I think this is interesting. On the linker, and this comes up in the 869, it's not so important to what's being questioned here directly, but secondarily it is, there's claims where they refer to three different ways to cleave the label when you move into the next base. So that's actually just claim more than that. They claim using photo-topography, using heat, using physical means, and using chemical means. The only thing they disclose in their expert admitted in deposition is photo, using light to dissociate it. They don't explain, they claim it, but they don't explain how you use a linker for chemical cleaving. They don't describe how you do it physically to get rid of the label when you need to get it. But they claimed it all, and claimed 12. And all they showed was the use of photo-topography, light to eliminate it. So the linker can't be the fancy chemistry because they don't give you any embodiment, but they claim it four different or five different ways. They don't have any embodiment in there. The capping the sugar, you would have heard arguments from counsel, formidable as he is, that while capping the sugar, that's hard. How do you do that? You didn't hear any argument that there's a challenge there. So there's no challenge in organic chemistry. I mean, there's, and I don't like sense, but there's hand waving there, because that's the only place left to go when you understand that the diseases are every day. And the rest of it's in reference after reference undisputed based on anticipation rejections with not much of any kind of contest. So if there's not real chemistry to do, what you really want is someone say, well, can you put these pieces together and then we'll incorporate with an end-time in biophysics and biochemistry and microbiology to do. What you're making the argument is, I understand it, it's the right answer is that even if Dr. Weinstock, maybe at the point in time that we're dealing with your wasn't as hands-on in terms of the laboratory, what's relevant to this case he had more than enough expertise? Absolutely. And the board's self-founded. And there's more than, it's Judge Wallace, but there's more than sufficient evidence of that. I mean, this appeal is turning into sort of an argument on a Zindovolo level, because we didn't really get legal arguments, and so I'm contesting them. I think everything I say has got to be through the lens of sufficient evidence. I'm not particularly worried about that, because it's overwhelming. I hope I've laid out where the law starts and the minor addition that they're claiming, and how weak that is as we've described. Now, I want to make sure that I've covered his three arguments. The Weinstock unqualified, I addressed the objective evidence. I don't know if there's anything more on that. It was such a great invention, and he turned the key that opened the door, how come it took so many years for someone else to do it based on different license technology? I think I addressed the licensing, and then the final thing with this invention is a hole. I think the invention is a hole. Yes, of course you have to look at the invention as a hole, but what the reality is, and we've learned this from Graham, is that you have to look at the difference between the art and what's claimed, at least at the art for the obvious decisions. Really, this comes about because they want to ignore that feature, and the board just wasn't due. The board, I think, safely concluded that the disclosure of the cap on the sugar and the label on the base was well known on multiple references. Are there any questions or anything else I can help with? Thank you very much. Thank you, Your Honor. I want to start by addressing Judge Wallach's question about claims 11 and 12. As you recall, we proposed substitute claims in our motion to amend. We argued the non-obviousness of proposed claims in 25 and 26. They were substitutes for claims 11 and 12. The argument appears on page 8-8-191 of the 698 appendix. Dr. Trainers' relevant testimony is a page 8-191. Dr. Trainers' relevant testimony is a page 8-385. This also is treated in page 22-23 of our reply rates. Let me just throw one more question. I'd like you to answer. We're in the licensing negotiations. Is there a tie to any of the features or inventions on what you've listed? I think you start with the first email that starts us, which is an email from between two of Illuminous Chiefsigners, which is Dr. Jiu has solved the problem that has signed us all. He has solved the problem. You get a back and forth between Illuminous and Columbia. There's an agreement to this. The key email is at page 3993 of the 698 appendix. This is a PIL 1547. Later on, you see, or farther down in the email chain, it's earlier somebody from Illuminous says we don't have a specific project or initiative to do sequencing by synthesis. Then somebody else says currently Illuminous doesn't have a play in this area. Mr. Ryan said, well, this is unsuccessful licensing. This is a tempted licensing. Not consummated licensing. That's true. But there's certainly no doubt that this is a respect for the invention. The whole theme of this is, if you continue reading a couple of pages later, if Dr. Jiu says he solved it, I would believe him is the back and forth between the folks in Illuminous. This is not just in 2005, 2006. 2006, the negotiations break down. Columbia licensed somebody else. Illuminous jumps into the market by acquiring another company and immediately has success with the products of the body of this invention. Interestingly, well, in 2008, 2009, 2011, there were still discussions. Illuminous still saying, we would have really liked to license the Columbia patent. But we have a problem with the fact that you licensed somebody else. There's some more discussions. I'd love to come and see your lab. Let me fly from San Diego to Boston. I'll be there as soon as I can. This is definitely respect for the invention. I mean, no question. I think if I could answer just one technical point about the purines and the pyrimidines and the C7 and the CA. So there are four bases, of course, in DNA. Two of them are purines. Two of them are pyrimidines. The two purines are larger. They're double rings. And so that creates part of the problem about putting the, you know, where to put the label by the cleavable linker so it doesn't get in the way. What Dr. Chen thought was mistakenly was that the eight position was the right one, but the eight position is not the right one because of spatial consideration. So you, in order to make it work best, you have to put it at a 7. The problem is the 7 in a natural purine is a nitrogen. And that's not good for the bond holding the cleavable linker. So you have to change the nitrogen to carbon. You have to make one, I should say, that has a carbon rather than an nitrogen. And that helps with the bond. Now, Mr. Ryan said, well, like everybody knew the azopurines were great. The azopurines were used in sangive sequencing. I mean, they were used for two different reasons that are completely irrelevant to sequencing by synthesis. The first reason they were used, and this is CLA, had to do with the fact that when you're, when you're sequencing, you know, bases that have a lot of GC, GC, GC. They tended to kind of clump together. And for some reason, you know, people were trying to fix that. And CLA figured out that the azopurines switching into a diazopurine from a regulatory would solve that problem. That is nothing to do with the problem that Dr. G was facing. That has solely to do with the process of electrophoresis, which is, under sangour sequencing, which wasn't satisfying the people, because it takes a really long time, and it can't be automated the way that sequencing by synthesis can be. The other was a separate problem that Dr. Prober figured out, and you know, this was a significant advance, no question in sangour sequencing, which was, you have to keep a, he figured out you put the label on the base. The problem with his electrophoresis is a very kind of harsh process. And what he figured out was when you were sort of playing out all the strands, if you use a diazopurine instead of a natural purine, the label will stay on. And his label is an uncleavable linker. So it's totally different from the whole, you know, there's no question. You know, Prober made an advance in sangour sequencing. But the whole problem of the problems that they're trying to solve are totally different from the ones that Dr. G was solving, which is where would the label fit so that it could, so that it could not get in the way of everything else. And it has to be cleavable because when you detect the label, you know, there's a cap, you detect the label, and then the cap and the label have to fall off so that you can then repeat the process. All of those put together that fundamentally are what may SDS work as well as it has, and those fundamentally, all those put together are what Dr. G can see. Thank you. Thank you. I'll look at both counsel and the cases. Thank you