I'll get asked. Next case is data research and development versus Abbott GM VH. Consolidated that's case 15, 16, 62. And we've consolidated for purposes of oral argument today, that case with Abbott GM VH versus me at a research and development. Mr. Nelson, we've given you 20 minutes due to the consolidation. I understand that you reserve in five minutes of the 20 minutes for rebuttal, is that correct? That's correct, Ron. The other side has 20 minutes and total time. Okay. You may. Thank you, Your Honor. Good morning. May it please the court. This case is unlike any of the inherency cases. Okay. Before you get to the merits, and I don't want to take up too much time because this is complicated, but I really don't understand why you have appealed separately from the 2008 order. It's an interlocutor order and you're either out of time or it was an interlocutor order
. It seems like you could have raised those arguments to judge call your and then appealed from that decision and included them all together, but I don't see how it's possible as a separate appeal. There were two, there were obviously two district court decisions and these proceedings, Your Honor, so the separate judgment from Judge Urbina and then the separate. There's not a judgment from Judge Urbina that ever became final. You tried to appeal from that once and we said no. Correct. It went back to the board. The board adopted his reasoning with regard to the 089 application. You put that in your claim or your complaint when you went up to Judge Collier. I think there's references to that, but then you never argued anything about the 089 application to her. And so you didn't seem to me to preserve any arguments with regard to the 089. You can't appeal separately from a 2008 interlocutor order. Well, we were dismissed for lack of finality when we appealed the 2008 decision. Right. And so it went back to the board. The board issued a new decision and a new action was instituted that involved that decision. And you actually went up to the district court again, but you didn't renew those arguments
. There wasn't an opportunity to renew those arguments. The board, the district court had already ruled on the 089 application. He still had to preserve them. All that remained to be decided was the 072 application. But it's still part of that case. It's not a separate case. So even if you hadn't waved it by not arguing at Judge Collier, it is part of the 062 action. It's not a separate appeal. Well, it was a separate district court action, which we had already. It's not the way that you'll for work. I'm sorry, Your Honor. I mean, basically you double your briefing pages by filing a separate appeal when it's all part of the same action. Let me ask you one more question. I'll let you go because I know you want to get to the merits and this is all kind of subsidiary. What doesn't matter to you about the 89 application and whether that makes their patent invalid if you don't win the 72? If Judge Collier is right, that the 72 as sufficient written description and an abelment and therefore gives them priority, does the 89 application matter at all? It should there would have to be a chain of priority in order for Abbott to get in order for Abbott to get the benefit of the 072 application in order for the 915 patent to get the benefit of the 072 application. On paper, there would need to be a chain of priority
. So let's assume she's right about the 072 application providing written support and enablement and therefore gives them priority for the 915 application or the 915 patent. I'm not saying that that's all I'm deciding, but just for purposes of trying to sort out these procedural issues, if she's right, then why would we need to reach whether Engelman invalidates the 915 patent? Isn't the only reason to have the 89 application in there to address that, but the 72 would supersede that as well. My understanding is that there would still need to be a chain of priority in order for Abbott, and it's 915 patent to get the benefit all the way back to the 072 application. The 089 application is intervening and they would have to get the benefit of that as well. I might be able to help the court. We'd like to focus today on the 072 application and Judge Collier's decision. I'm happy to answer more questions about Judge Urbina's decision in the 089 application. No, I think you've waved that. I don't think we have jurisdiction. My colleague might disagree, but when I get to the merits. Okay. This case is unlike any of the inherency cases that Abbott relies on. Let me ask you, of course, is so Abbott's patent has expired correct correct. And so you're pursuing an interference in the end as a result of that you're looking to get your own patent. Correct. Basically and you want that grant you 17 years of protection on a protein that's already in the public domain hasn't society already paid the price to keep that protein in the public domain
. So the way I've responded that question, your honor is that it's not Yadah's fault that were here in 2016 arguing about this. Yadah tried to resolve this case a long time ago. Tried to appeal directly to the federal circuit in 2008. If it's unfortunate that the delay happened, the interference was declared in 1996. The board decided the interference fairly expeditiously in 2000. It wasn't Yadah that appealed to a 146 action. So again, there's been some delay. We regret that, but it's been it hasn't been of the AIDA's making and Yadah shouldn't be prejudiced. That's fine. You've got to see the question. Well, you have improperly tried to appeal interlocking Tory orders that delayed the proceedings. I mean, there's no doubt that 2008 order was interlocking Tory. I don't know why you ever filed an appeal on that. Well, in an abundance of caution, we were concerned that we might be deemed as having waived our right to appeal that decision at that point. So that's why we appeal. The federal circuit disagreed with us, obviously, and here we are
. What I'd like to direct the Court's attention to if possible is on the merits. This case is unlike any of the inherency cases that Abbott relies on. Unlike the least because in your reply, brief, in 1662, you use the term mischaracterized at pages 10, 12, 14, and 16 to describe what Abbott says. And I, when somebody says something like that, I read it really carefully. I'd be really careful of using that kind of language. Okay. It's clear you disagree and you're raising the disagree with their interpretation of the euphonious wallet case. But despite that, I don't think it character constitutes mischaracterization. Okay. Your Honor. Well, we felt that the test that we had been articulating wasn't being stated fairly by the other side. But so be it. If I could direct the Court again, though, to the merit, to the merits of the case, you are particularly on this case. You are using this in-rate wallet favors your position. I'm sorry, Your Honor. You argue that in-rate wallet favors your position
. That's right. Explain them. If the Court had, if the Court had granted, I'm sorry, if the fundamental holding in wallet was that because the wallet inventors, and those were YADA inventors, by the way, those were the same inventors in wallet. And that was dealt with a similar application or a related application to YADA's application issue. In this case, the Court held essentially that because YADA had only disclosed so much of the amino acid sequence of the protein, that it wasn't in possession of the entire amino acid sequence of the protein. Even though the claim certainly was directed to DNA, but the argument that we made there, which the Court rejected, was that simply because you have possession of the protein, doesn't mean you have possession of the protein's amino acid. So, in wallet, was there evidence that the full amino acid sequence was could be deduced from the partial sequence that was present? I don't think that that was the evidence, Your Honor. I don't think that that was the evidence in wallet, and it's certainly not the evidence in this case, that based on what was disclosed in the 072 application. Well, I'm quoting from that case at 1335. But anyway, go ahead. Okay. Okay. So, wallet does favor our position, but I'd like to focus on the facts in connection with the 072 application. And like I said, and this goes to the core of Abbott's Inherency arguments. This case isn't like any of the Inherency cases Abbott relies on. Unlike in all of those cases, no one could have gone back to any of the samples that Abbott had when they filed the 072 application and have identified any of the contiguous complete sequences of account
. No one could have done that. What Abbott had when they filed the 072 application wasn't enough. They hadn't finished inventing. Later on, they finished inventing. They came close to it in the 089 application, for example. But when they filed the 072 application, they hadn't finished inventing. They actually had to develop an additional protocol that would yield a sample from which you could actually identify those sequences. You couldn't get to those sequences of account from anything Abbott had when they filed the 072 application. Of course, disclosed an initial application wouldn't have necessitated the existence of what we call what we have here as a missing amino acid sequence. I'm sorry, I don't follow the question. Wasn't the sequence, the amino acid sequence that you say was not present in the original application, wasn't that inherent in that? No, it was not inherent. And it was not inherent because the sample wasn't purified and isolated. The test here, it's not, was the TBP2 protein in there. Did they have it in their sample? For example, they also had it in the urine that they started off with. But no one saying that the complete sequence of the account was inherent in that urine. No, what they had to do was they had to purify and isolate the protein to a point where one of ordinary skilling the art, and this is inherent, one of ordinary skilling the art would necessarily see those sequences
. And they didn't get to that when they filed the 072 application. And the only way that they did get to it, the only way that they got from point A to point B, from the 072 application to any of the sequences of the count, was they had to do further inventing. They weren't done inventing when they filed the 072 application. They completely changed their protocol. What was the further inventing? The further inventing was that they changed their protocol. The protocol of the 072 application. But the invention is not a method for purifying and isolating. It's the protein. It's the purified and isolated protein. And they hadn't gotten to that yet when they filed the 072 application. The court found that the seven characteristics of the amino acid that were disclosed in the specification identified that TBP2 protein is being present. It's being subject to this 072 and 082 specifications. That was wrong, especially in the sense that the court seemed to think that what was in the 072 application was sufficient to distinguish the prior art. It wasn't sufficient to distinguish the prior art, especially the second-year reference that we've discussed in our briefs. In prosecution, when it came right down to it and when Abbott had to overcome the second-year reference, they relied on one thing and one thing only. And it was a sequence that was found in the count
. It wasn't a sequence from the 072 application. It wasn't anything else in the 072 application. They didn't, when they had the chance to tell the examiner and put it all on the line and say, here are all these characteristics that distinguish our protein from the protein of second-year, they relied on only one thing. Is the protein they discovered and described in the 072 application any different than the protein and they discovered and described in the 915 patent? Yes, it is. They actually relied on a different form of a protein to get to the count. It's very odd. But when they changed their protocol, they used different chromatography columns. They even changed their source. They started working with a different source that they didn't report in the 072 application. And when they did all that, one of the sources... Work for that. I'm sorry. What's your support for that? Because that seems contrary to what the district report is. Oh, oh, there's no dispute
. There's no dispute about this year on or even Abbott doesn't dispute it. We've discussed it extensively. The evidence was unrebutted on this. Some support can be found at A. They are two entirely different proteins. The protein that was the basis for the count was a different form of the protein. They actually started working with urine from people without fever. The 072 application says use urine from patients with fever. They started using a sitee's fluid later. This is all part of the additional inventing that they did. They weren't done inventing when they filed the 072 application. And they actually... So you're talking about different methods to reach this protein? Correct. But it was a different form of the protein. You're going to disagree that they claimed a different protein. There are some similarities, but the fact remains. And it's undisputed and it's unrebutted that they relied on a different protocol from different sources. And even this different form of the protein and ultimately to get to the count. And you say different form of the protein. So in this discussion about different protocol and different methods seems not particularly relevant when they're not talking about a method claim. But you're saying it's a different form? I don't know what that means. It doesn't meet their version of their parts of the count. Parts B and C of the count say a 42-kilodolton protein. That's what they say that they invented by the time they filed the 072 application. Well, to get to the count, they were relying on among other things. A 30-kilodolton form of the protein. It wasn't the same form of the protein. And it doesn't matter that that parts B of the count, for example, is directed to a protein. This is unlike any other case in order for Abbott to get from point A to point B, to get from the 072 application in order to the count. They had to do all this other stuff
. You're going to disagree that they claimed a different protein. There are some similarities, but the fact remains. And it's undisputed and it's unrebutted that they relied on a different protocol from different sources. And even this different form of the protein and ultimately to get to the count. And you say different form of the protein. So in this discussion about different protocol and different methods seems not particularly relevant when they're not talking about a method claim. But you're saying it's a different form? I don't know what that means. It doesn't meet their version of their parts of the count. Parts B and C of the count say a 42-kilodolton protein. That's what they say that they invented by the time they filed the 072 application. Well, to get to the count, they were relying on among other things. A 30-kilodolton form of the protein. It wasn't the same form of the protein. And it doesn't matter that that parts B of the count, for example, is directed to a protein. This is unlike any other case in order for Abbott to get from point A to point B, to get from the 072 application in order to the count. They had to do all this other stuff. It weren't done in venting. But you seem to place some emphasis on this difference between the 42, whatever, and the 30, whatever. If the 072 application had 42, whatever that means, and had the complete amino acid sequence that was in the patent, would that be the same protein, even if it had a 30 count, whatever, and the application? I'm sorry. If the 072 application said 42-kilodolton. I'm trying to figure out what the relevance of this difference between this 42 and 30 referring to is. The relevance is that they weren't done in venting when they filed the 072 application. If you take a look at any of the inherency cases they rely on, and I would submit, even if you take a look at this. Before I ask you, can you answer my hypothetical? Maybe I'm sorry, maybe you don't get it, but because I don't quite, I'm not up, you know, I don't do this kind of stuff as my day job. But it's both application, the 72 application and 915 say it's this protein, this characteristics, both have the entire amino acid sequence. And the only difference is the 72 uses a 42 number, and the patent uses a 30 number. Are those the same protein? For purposes of the interference, they would, the answer would be yes, and it's because Yadah's part of the count is to a 30-kilodolton form of the protein. But if you think they're from molecular weights, I'm sorry. Well, so that's what it is. You're talking about the 42-entery molecular weights. So if you think that's different, though, then why would the 40, the protein in the, the earlier application be the same protein? If you think there's some relevance to the difference in molecular weights? The protein that they reported in the 072 application, I mean, was a contaminated sample, but the protein that was in there, it's not the same protein. They didn't stick with just that in order to get to the count
. It weren't done in venting. But you seem to place some emphasis on this difference between the 42, whatever, and the 30, whatever. If the 072 application had 42, whatever that means, and had the complete amino acid sequence that was in the patent, would that be the same protein, even if it had a 30 count, whatever, and the application? I'm sorry. If the 072 application said 42-kilodolton. I'm trying to figure out what the relevance of this difference between this 42 and 30 referring to is. The relevance is that they weren't done in venting when they filed the 072 application. If you take a look at any of the inherency cases they rely on, and I would submit, even if you take a look at this. Before I ask you, can you answer my hypothetical? Maybe I'm sorry, maybe you don't get it, but because I don't quite, I'm not up, you know, I don't do this kind of stuff as my day job. But it's both application, the 72 application and 915 say it's this protein, this characteristics, both have the entire amino acid sequence. And the only difference is the 72 uses a 42 number, and the patent uses a 30 number. Are those the same protein? For purposes of the interference, they would, the answer would be yes, and it's because Yadah's part of the count is to a 30-kilodolton form of the protein. But if you think they're from molecular weights, I'm sorry. Well, so that's what it is. You're talking about the 42-entery molecular weights. So if you think that's different, though, then why would the 40, the protein in the, the earlier application be the same protein? If you think there's some relevance to the difference in molecular weights? The protein that they reported in the 072 application, I mean, was a contaminated sample, but the protein that was in there, it's not the same protein. They didn't stick with just that in order to get to the count. They had to rely, like I said, on all this different stuff. They weren't done inventing. They had to, they had to develop a new protocol where they, where they substantially changed their chromatography in order to, in order to get to a product. They also changed the sources that they worked with. Is it enough for the specification to identify the process by which to that a protein can be obtained? You don't have to list all the proteins. Not if your specification has described the process that you go to obtain a particular protein. No, not across the board, Your Honor. That's a fact-specific scenario here. And I believe in NRA Edwards where the court reached such a result. The court was, was very particular in clarifying. This isn't a bright line rule here. But the evidence in this case shows that to one of ordinary skill in the art viewing the 072 application, they hadn't gotten there yet. They had only identified a, I'm sorry, a significantly contaminated sample. I think one of the issues with this case- Here is the bottle time. You can continue if you want. Okay
. They had to rely, like I said, on all this different stuff. They weren't done inventing. They had to, they had to develop a new protocol where they, where they substantially changed their chromatography in order to, in order to get to a product. They also changed the sources that they worked with. Is it enough for the specification to identify the process by which to that a protein can be obtained? You don't have to list all the proteins. Not if your specification has described the process that you go to obtain a particular protein. No, not across the board, Your Honor. That's a fact-specific scenario here. And I believe in NRA Edwards where the court reached such a result. The court was, was very particular in clarifying. This isn't a bright line rule here. But the evidence in this case shows that to one of ordinary skill in the art viewing the 072 application, they hadn't gotten there yet. They had only identified a, I'm sorry, a significantly contaminated sample. I think one of the issues with this case- Here is the bottle time. You can continue if you want. Okay. If I could just finish this point. One of the issues with this case is that, is that for, for lawyers looking at these documents and comparing the 072 application to the 915 patent, it's, it's very tempting just to, to see the, see some of the consistencies that there are between the, between the two and say, well, it looks like, it looks like that was close enough. But that's not the test. The test of written description is, is how the application would have been viewed by one of ordinary skill in the art. At the time the application was filed and there's extensive evidence in this case that one of ordinary skill in the art viewing the 072 application would not have viewed it as demonstrating a purified, isolated protein or a definitively identified protein. But instead would have considered it as evidence of considerable contamination that no single protein had been purified and isolated. Okay. Thank you. All right. Thank you, Mr. Nelson. We'll, we storm Mr. Nelson's rebuttal time back to three minutes, okay? Mr. Ferguson? Morning, Your Honor. May I please the Court? James Ferguson on behalf of Abbott GMBH. I agree with counsel that this is a very unusual case
. If I could just finish this point. One of the issues with this case is that, is that for, for lawyers looking at these documents and comparing the 072 application to the 915 patent, it's, it's very tempting just to, to see the, see some of the consistencies that there are between the, between the two and say, well, it looks like, it looks like that was close enough. But that's not the test. The test of written description is, is how the application would have been viewed by one of ordinary skill in the art. At the time the application was filed and there's extensive evidence in this case that one of ordinary skill in the art viewing the 072 application would not have viewed it as demonstrating a purified, isolated protein or a definitively identified protein. But instead would have considered it as evidence of considerable contamination that no single protein had been purified and isolated. Okay. Thank you. All right. Thank you, Mr. Nelson. We'll, we storm Mr. Nelson's rebuttal time back to three minutes, okay? Mr. Ferguson? Morning, Your Honor. May I please the Court? James Ferguson on behalf of Abbott GMBH. I agree with counsel that this is a very unusual case. The Court has already noted that in this case, Yeda is seeking in 2016 a patent to protect a protein that was discovered in 1989, a protein that has already been the subject of 17 years of patent exclusivity. Your patent is expired, right? Correct. Do you have any pending litigation asserting that patent? No. Do you have any other patents that rely on that patent? No. So there's nothing going to be from you ongoing on this. You're asking the question my client has been asking me. You're on it. We will gain absolutely or lose absolutely no patent protection as a result of the outcome of this litigation. We're in this litigation as a very reluctant defendant. The only reason we can't even settle the case because Yeda is not seeking money damages or injunction. They're looking for a new acclaim relating to patent validity, and obviously even if my client were willing to walk away from all the representations that's made to the people. Well, can I ask you this? I shouldn't, but I'm going to. Since you have no financial interest in this whatsoever, I know at the time you filed this patent, there may have been some question about patentability. I mean, is a purified protein even patentable any longer after the recent Supreme Court precedent? Very good question, Your Honor, and. I don't, you don't have to commit, but it seems to me that it, that some of the recent Supreme Court cases make this highly suspect, highly suspect patent altogether. I wouldn't want to be quoted, Your Honor, so I'll simply say I agree that there are some questions about patentability in light of recent Supreme Court
. The Court has already noted that in this case, Yeda is seeking in 2016 a patent to protect a protein that was discovered in 1989, a protein that has already been the subject of 17 years of patent exclusivity. Your patent is expired, right? Correct. Do you have any pending litigation asserting that patent? No. Do you have any other patents that rely on that patent? No. So there's nothing going to be from you ongoing on this. You're asking the question my client has been asking me. You're on it. We will gain absolutely or lose absolutely no patent protection as a result of the outcome of this litigation. We're in this litigation as a very reluctant defendant. The only reason we can't even settle the case because Yeda is not seeking money damages or injunction. They're looking for a new acclaim relating to patent validity, and obviously even if my client were willing to walk away from all the representations that's made to the people. Well, can I ask you this? I shouldn't, but I'm going to. Since you have no financial interest in this whatsoever, I know at the time you filed this patent, there may have been some question about patentability. I mean, is a purified protein even patentable any longer after the recent Supreme Court precedent? Very good question, Your Honor, and. I don't, you don't have to commit, but it seems to me that it, that some of the recent Supreme Court cases make this highly suspect, highly suspect patent altogether. I wouldn't want to be quoted, Your Honor, so I'll simply say I agree that there are some questions about patentability in light of recent Supreme Court. So could you address, I think I understand your, your friend's argument that because you claimed a purified and isolated protein in the 915 patent that the 072 application has to provide written description and enablement for the purified and isolated protein. And because it didn't describe the whole amino acid sequence, a person of an ordinary skill wouldn't see that application is showing the purified version of the protein, but some other version of the protein. Why isn't he right about that? I understood his argument, Your Honor, to be focusing on Abbott's laboratory notebooks and what they revealed as opposed to the disclosure in the 072 application and 915 application. I was very surprised by some of the statements that I understood Council to make in light of concessions that Abbott, I'm sorry, the yeta made before the district court and the district court resides at page 25 on her opinion. Those concessions include the following. Number one, an amino acid is unique and inherent characteristic of a protein. Number two, the full amino acid sequence is not necessary to identify unequivocally a protein. And number three, the nine amino acids that Abbott identified in its disclosure document, together with all the other biological data, including the 42 kilo dole molecular weight, unequivocally identified that protein as TBB2. What follows from that, the fourth conclusion also an undisputed fact is that the protein that was disclosed by the first filed application is the same protein as is recited in the count. You will search yeta's briefs and bane for any statement that denies that what's the protein that's disclosed in the 072 application is not the same protein or is the same protein that's recited in the count. What they're saying is notwithstanding that there's not sufficient written disclosure because it doesn't contain these other amino acids. And as we lay out in greater detail in our brief, those amino acids are inherently disclosed. They meet the requirements of inherent disclosure cases because number one, the amino acids are inherent to the protein, no dispute. And number two, they're not material to patent ability because they're not necessary to identify the protein. Again, yeta conceded as recited in page 25 of the district court's opinion that only one protein has the amino acids that are disclosed in the 072 application. So your opponent argues that we should reject the inherently arguments on the basis of our decision in RALIC
. So could you address, I think I understand your, your friend's argument that because you claimed a purified and isolated protein in the 915 patent that the 072 application has to provide written description and enablement for the purified and isolated protein. And because it didn't describe the whole amino acid sequence, a person of an ordinary skill wouldn't see that application is showing the purified version of the protein, but some other version of the protein. Why isn't he right about that? I understood his argument, Your Honor, to be focusing on Abbott's laboratory notebooks and what they revealed as opposed to the disclosure in the 072 application and 915 application. I was very surprised by some of the statements that I understood Council to make in light of concessions that Abbott, I'm sorry, the yeta made before the district court and the district court resides at page 25 on her opinion. Those concessions include the following. Number one, an amino acid is unique and inherent characteristic of a protein. Number two, the full amino acid sequence is not necessary to identify unequivocally a protein. And number three, the nine amino acids that Abbott identified in its disclosure document, together with all the other biological data, including the 42 kilo dole molecular weight, unequivocally identified that protein as TBB2. What follows from that, the fourth conclusion also an undisputed fact is that the protein that was disclosed by the first filed application is the same protein as is recited in the count. You will search yeta's briefs and bane for any statement that denies that what's the protein that's disclosed in the 072 application is not the same protein or is the same protein that's recited in the count. What they're saying is notwithstanding that there's not sufficient written disclosure because it doesn't contain these other amino acids. And as we lay out in greater detail in our brief, those amino acids are inherently disclosed. They meet the requirements of inherent disclosure cases because number one, the amino acids are inherent to the protein, no dispute. And number two, they're not material to patent ability because they're not necessary to identify the protein. Again, yeta conceded as recited in page 25 of the district court's opinion that only one protein has the amino acids that are disclosed in the 072 application. So your opponent argues that we should reject the inherently arguments on the basis of our decision in RALIC. What's your response to that? I think my response is that my opponent most respectfully is mistaken that both RALIC and Sonofi squarely hold that a partial amino acid sequence together with other biological data is sufficient to identify a protein. That's almost an exact quote from Sonofi and Sonofi sites RALIC for that proposition. And your honor, as we argue, to great lengthen our brief, that's exactly what we have here. A partial amino acid sequence together with other biological data that unequivocally establish the protein that the Abbott inventors in 1989 had possession of the same protein that's now recited in the count. There are two other grounds that I just want to briefly touch on for sustaining the district court's opinion, a decision rather, and the first is judicial stop-al. Because yeta's current argument is directly contrary to representations that yeta successfully made to the patent office in the prosecution of the patent and in the interference. You may recall that yeta relied on the Englman reference and persuaded the patent office that the Englman reference, which contained only five amino acids, invalidated the Abbott patent on grounds of anticipation. Now, if the five amino acids in the Englman reference are sufficient to invalidate on anticipation grounds, Abbott's patent containing 22 amino acids, that's pretty inconsistent in the district court so found with their current claim that our 072 application with nine amino acids is insufficient from a written description perspective. The last thing point I want to make is to remind the court, particularly in light of the challenge to the methodology that Abbott used in 1989 in identifying the protein. In 2003, we replicated every step of the same methodology that's disclosed in the 072 application and we did it in the presence of experts from yeta. That's not something you see all the time in patent law because it's high risk. If you make a mistake, the patent's gone. But we did it. There are experts were there and it resulted in TBB2 and so this was a compelling real world demonstration that the method of purifying and isolating the protein that was disclosed in the 072 patent results in the protein. So, the second question is, is there a separate ground for sustaining the district court's decision on written description? Unless the court has any questions, we'll rely on our briefs. I just want to say the same thing I said in your opposing counsel and that is you've got stuck with a recovery which accused you as far as I'm concerned, accused you of misconduct
. What's your response to that? I think my response is that my opponent most respectfully is mistaken that both RALIC and Sonofi squarely hold that a partial amino acid sequence together with other biological data is sufficient to identify a protein. That's almost an exact quote from Sonofi and Sonofi sites RALIC for that proposition. And your honor, as we argue, to great lengthen our brief, that's exactly what we have here. A partial amino acid sequence together with other biological data that unequivocally establish the protein that the Abbott inventors in 1989 had possession of the same protein that's now recited in the count. There are two other grounds that I just want to briefly touch on for sustaining the district court's opinion, a decision rather, and the first is judicial stop-al. Because yeta's current argument is directly contrary to representations that yeta successfully made to the patent office in the prosecution of the patent and in the interference. You may recall that yeta relied on the Englman reference and persuaded the patent office that the Englman reference, which contained only five amino acids, invalidated the Abbott patent on grounds of anticipation. Now, if the five amino acids in the Englman reference are sufficient to invalidate on anticipation grounds, Abbott's patent containing 22 amino acids, that's pretty inconsistent in the district court so found with their current claim that our 072 application with nine amino acids is insufficient from a written description perspective. The last thing point I want to make is to remind the court, particularly in light of the challenge to the methodology that Abbott used in 1989 in identifying the protein. In 2003, we replicated every step of the same methodology that's disclosed in the 072 application and we did it in the presence of experts from yeta. That's not something you see all the time in patent law because it's high risk. If you make a mistake, the patent's gone. But we did it. There are experts were there and it resulted in TBB2 and so this was a compelling real world demonstration that the method of purifying and isolating the protein that was disclosed in the 072 patent results in the protein. So, the second question is, is there a separate ground for sustaining the district court's decision on written description? Unless the court has any questions, we'll rely on our briefs. I just want to say the same thing I said in your opposing counsel and that is you've got stuck with a recovery which accused you as far as I'm concerned, accused you of misconduct. And I couldn't find any and I'll invite you to say anything else if you want to, but you don't have to. I appreciate your comments, Your Honor. Council for Abbott said that as of the filing of the 072 application that Abbott had possession of the protein, we're not disputing that. We're not disputing that a protein satisfying the limitations of the count was in their sample, but that's not the test. The test isn't was it in there. It was also in the urine and that's not patentable. You had to purify and isolate the protein to the point where one of ordinary skilling art would necessarily see the sequences. And that's why this case is different from all of this court's other cases that Abbott has cited, including recent cases like Cubist, which was decided after the briefs where you couldn't necessarily identify the sequences of the count from the sample that Abbott had, any of the samples that Abbott had when they filed the 072 application. Again, it's different from all of the all the in herancy cases that Abbott has relied on as well as this court's case, this court's decision in Sonofi. Council for Abbott referred to 2003 as well. The results of the 2003 experiments were disputed. Yadah's experts took a look at the results and said they don't look any better to us than the 1989 results did. There's a genuine issue of material fact there that should have precluded summary judgment being entered in favor of Abbott. And no matter what the results of the 2003 experiments were, they don't negate the fact that in 1989, the one and only time that Abbott tried to practice the 072 protocol, it resulted in a complete failure. It didn't even result in the sequences that are disclosed in the 072 application. Did the experiments result in TBP2? It's not clear whether they had it, whether they had it in that sample, your honor, they may have
. And I couldn't find any and I'll invite you to say anything else if you want to, but you don't have to. I appreciate your comments, Your Honor. Council for Abbott said that as of the filing of the 072 application that Abbott had possession of the protein, we're not disputing that. We're not disputing that a protein satisfying the limitations of the count was in their sample, but that's not the test. The test isn't was it in there. It was also in the urine and that's not patentable. You had to purify and isolate the protein to the point where one of ordinary skilling art would necessarily see the sequences. And that's why this case is different from all of this court's other cases that Abbott has cited, including recent cases like Cubist, which was decided after the briefs where you couldn't necessarily identify the sequences of the count from the sample that Abbott had, any of the samples that Abbott had when they filed the 072 application. Again, it's different from all of the all the in herancy cases that Abbott has relied on as well as this court's case, this court's decision in Sonofi. Council for Abbott referred to 2003 as well. The results of the 2003 experiments were disputed. Yadah's experts took a look at the results and said they don't look any better to us than the 1989 results did. There's a genuine issue of material fact there that should have precluded summary judgment being entered in favor of Abbott. And no matter what the results of the 2003 experiments were, they don't negate the fact that in 1989, the one and only time that Abbott tried to practice the 072 protocol, it resulted in a complete failure. It didn't even result in the sequences that are disclosed in the 072 application. Did the experiments result in TBP2? It's not clear whether they had it, whether they had it in that sample, your honor, they may have. In the sample that's reported in the 072 application, there was some TBP2 in there, but again, that's not enough because the sequences weren't inherent in that sample. You had to do something more unlike all the squirts other inherancy cases. You had to do more inventing in order to get to those sequences. This is inherancy. It can't be established by probabilities or possibilities. The same comment is applicable to the 2003 experiments when you compare those to what happened in 1989. They say they got it to work in 2003. They clearly didn't in 1989. They got something that was so bad, they didn't even report it in the 072 application itself. They said it had very weak activity. Judge Collier noted that in her opinion. That's not sufficient for written description, and it doesn't satisfy this court's test for inherancy either. One last comment I would make is that on material to patent, on material to patent ability, that was a burden that Abbott bore in this case. They had to show in order to establish inherancy that the sequences of the account weren't material to patent ability. There is no dispute that when it counted, when it actually mattered that they relied on a sequence not in the 072 application to distinguish the prior art. And there's no evidence, including no evidence from their experts that specifically addressed that second-year reference and said anything different
. There's no evidence from their experts saying that second-year could be distinguished on any other basis. We just have to go back to the objective record of the prosecution history, and you see from that that they absolutely relied on a sequence of the account in order to get their claims issued. Do you have any concluding sentences or thoughts? Only that because the sequences of the account were material to patent ability as a matter of law under this court's binding precedent, such as in hitsamen, Abbott hasn't established inherent written description. Thank you, Your Honours. Thank you very much