[00:00:00] Speaker 02:
We'll hear argument next in number 20-1064, Medicanova, Inc.

[00:00:05] Speaker 02:
versus Genzyme Corporation, Mr. Chapman.

[00:00:09] Speaker 03:
Thank you, Your Honor.

[00:00:09] Speaker 03:
May it please the Court.

[00:00:11] Speaker 03:
This is a contract case whose resolution depends entirely on patent claim construction.

[00:00:16] Speaker 03:
The only claim term construed was stocked of recombinant adeno-associated virus, and that appears in four independent claims.

[00:00:24] Speaker 03:
Through a complex logical chain, the district court construed virus to mean virions

[00:00:29] Speaker 03:
and then construed virions to require a negative process limitation that virions not be made using herpes simplex virus one or HSV one.

[00:00:40] Speaker 03:
Rather than simply construing the claim term at issue, the district court appears to have poured all of what it believed the invention to be into that term.

[00:00:49] Speaker 03:
In doing so, it brought limitations not present in some of the independent claims into those claims by construction of the near six words.

[00:00:58] Speaker 03:
But I believe the logical chain has flaws, which I will address, starting with the packaged issue.

[00:01:08] Speaker 04:
The real problem you have is that negative limitation, because that's where the non-infringement position really turns.

[00:01:24] Speaker 03:
That's correct, your honor.

[00:01:25] Speaker 03:
And it is only through the construction of virus to be virion that that negative limitation comes in.

[00:01:33] Speaker 03:
But perhaps I should start with a negative limitation.

[00:01:36] Speaker 04:
Well, I'm just wondering, if we were to assume that virions, that the virions construction is the correct one, does that end the inquiry for you?

[00:01:46] Speaker 04:
Or is there anything you could argue as it relates to the negative

[00:01:53] Speaker 04:
limitation that would still let you survive here?

[00:01:59] Speaker 03:
Yes, I do believe that there are things about the negative limitation that do survive.

[00:02:06] Speaker 03:
As a matter of fact, the district court characterized it as an exclusion.

[00:02:12] Speaker 03:
And I believe that that is overstating the issue considerably.

[00:02:22] Speaker 03:
The summary of the invention, and this is at Column 4, Lines 35 to 38, says that the accessory function, which is the source of the so-called exclusion, may be expressed in several ways, and it cites, as an example, all herpes virus generally.

[00:02:42] Speaker 03:
So that's in the summary of the invention.

[00:02:44] Speaker 05:
Well, this is Judge Brighton.

[00:02:46] Speaker 05:
It cites to herpes viruses, but you added the word all.

[00:02:51] Speaker 05:
And I don't see that in the specification.

[00:02:56] Speaker 05:
It seems to me that it is one thing to say that herpesviruses generally can be used, but where there's an express exclusion of one type of herpesvirus, HSV1, it seems to me that that's not inconsistent with saying that herpesviruses generally can be subject to the exclusion of one type.

[00:03:18] Speaker 03:
You're correct, Your Honor.

[00:03:20] Speaker 03:
The Summary of the Invention does not use the word all, it just is herpes virus generally.

[00:03:24] Speaker 03:
But I do think it's significant where that appears in the Summary of the Invention compared to the statement in the Preferred Embodiment.

[00:03:35] Speaker 03:
At page 54, I believe, of Genzy's brief, they state their belief that the inventor gained HSV1-derived accessory functions as less efficient.

[00:03:48] Speaker 03:
accepting that is true then in the preferred embodiment the inventor indeed should have specified what uh... it what he considered the most efficient way of doing that and and clearly he's given guidance that you should use herpes virus other than hsv-1 there's no doubt about it but the statement in the specification of preferred embodiment does not say that hsv-1 would fail to work it simply says

[00:04:17] Speaker 03:
that there are other things you should use.

[00:04:20] Speaker 04:
And that's in part the reason why I think that... Does it matter if it doesn't say it'll fail to work?

[00:04:27] Speaker 04:
I mean, as long as the patent says don't use it, it's a required negative limitation whether there was a good reason for saying it or not, right?

[00:04:39] Speaker 03:
Well, I think that if the patent, in my view, Your Honor, doesn't say don't use it, it says use these other things.

[00:04:47] Speaker 03:
And I believe there's a difference, and that difference is important because of the best-mode requirement.

[00:04:53] Speaker 03:
If the inventor thought that HSV-1 was not an optimal way of practicing the invention, then he was required to say that.

[00:05:06] Speaker 03:
But that is different from saying that HSV-1 wouldn't work.

[00:05:10] Speaker 03:
As a matter of fact, it could be extrinsic evidence.

[00:05:14] Speaker 03:
speak entirely to the fact that it was understood that it would work.

[00:05:18] Speaker 05:
So now the statement in the place in which the exception for herpes HSV1 shows up is in a definitional section.

[00:05:33] Speaker 05:
And that's the definition of accessory functions.

[00:05:37] Speaker 05:
So as I read it, the definition itself is excluding herpes.

[00:05:43] Speaker 05:
simplex virus type 1 rather than it being simply a statement that somewhere along the line in the specification that it doesn't work as well or should be avoided.

[00:05:57] Speaker 05:
Doesn't that create a further problem for you in that it's definitional in nature?

[00:06:01] Speaker 03:
It would if it were definitional, but I would like to take issue with that.

[00:06:06] Speaker 03:
It certainly appears in the section labeled definitions.

[00:06:10] Speaker 03:
But the paragraph where the term accessory function is defined, the first sentence gives you the definition of accessory function, and the second sentence clarifies what falls within it, and then I believe the third sentence provides the inventor's best mode or preferred way of achieving or driving the accessory function, and that's consistent with

[00:06:39] Speaker 03:
the way these other definitional paragraphs work.

[00:06:41] Speaker 03:
For example, the paragraph above it defines the AAV helper construct, and it has a definition, and then it's followed by examples that can be used.

[00:06:54] Speaker 03:
And I don't think looking at that paragraph that it would be fair to say that the examples are the sole way of

[00:07:05] Speaker 03:
of developing a helper construct.

[00:07:07] Speaker 02:
Similarly, I don't think... I'm not understanding what you're saying.

[00:07:10] Speaker 02:
I mean, the first paragraph in the accessory functions definition is where the exclusion takes place.

[00:07:17] Speaker 02:
That's not an example, is it?

[00:07:20] Speaker 03:
Well, what I'm saying is the first sentence is the definition, and the second sentence in that paragraph clarifies the definition, and then the third

[00:07:31] Speaker 03:
says how accessory functions can be derived.

[00:07:36] Speaker 03:
And I'm saying that that's similar to other paragraphs where there's a definition followed by examples.

[00:07:44] Speaker 05:
But isn't that inconsistent with the position you took in the prosecution history?

[00:07:50] Speaker 05:
As I read the prosecution history, there was a statement that the definition of accessory functions, this is by your prosecuting counsel,

[00:08:01] Speaker 05:
The definition of accessory functions includes viral-based accessory functions derived from any of the known viruses, such as adenovirus, herpesvirus, other than HSV1 and vaccinia virus.

[00:08:14] Speaker 05:
That sounds like it's confirming that this is definitional.

[00:08:20] Speaker 03:
Again, I think that if the word includes, that distinguishes that.

[00:08:26] Speaker 03:
And I believe you're referring to Phoenix 2152, which is what I'm looking at.

[00:08:32] Speaker 03:
If it said only includes or excludes, certainly it does include those things.

[00:08:40] Speaker 05:
Well, in order for that argument to be logically consistent, it would seem to me you have to be saying it includes x, y, but not

[00:08:51] Speaker 05:
but not Z, but then you would have to be arguing that includes does not exclude Z. And yet the very language of includes X and Y but not Z seems to me to foreclose the argument that includes allows you to bring Z back, if you understand the point.

[00:09:13] Speaker 03:
I do understand the point.

[00:09:15] Speaker 03:
And I think, and that is one way to read this, however,

[00:09:20] Speaker 03:
Your Honor, I would go back to the actual patent language, which is what's being quoted there.

[00:09:27] Speaker 03:
And I believe that the definitional part of that paragraph comes in the first two sentences.

[00:09:35] Speaker 03:
And so it's really just quoting from that paragraph, not changing the meaning of it.

[00:09:44] Speaker 04:
Hi.

[00:09:45] Speaker 04:
Do you want to go back to your predicate argument, which is that you never even get

[00:09:49] Speaker 04:
there because it's not a virion?

[00:09:53] Speaker 03:
Yes, I would like to.

[00:09:54] Speaker 03:
Thank you, Your Honor.

[00:09:55] Speaker 03:
And I'd like to start with packaged.

[00:09:58] Speaker 03:
The claim one and eight require a stock of recumbent adeno-associated virus include a packaged adeno-associated virus vector.

[00:10:14] Speaker 03:
The district court construed that as requiring

[00:10:19] Speaker 03:
a virion.

[00:10:22] Speaker 03:
But it's redefining and taking all of the limitations of the claim and putting it into the term in the preamble that I believe in error.

[00:10:34] Speaker 03:
Essentially the district court ends up describing claim one as a stock of virions that comprise virions.

[00:10:47] Speaker 03:
It doesn't make sense.

[00:10:49] Speaker 03:
There's redundancy.

[00:10:50] Speaker 04:
And in addition, it imposes... Well, isn't the whole point of the patent to send packaged product to the cells?

[00:10:59] Speaker 04:
I mean, the whole point is to deliver the DNA, right?

[00:11:03] Speaker 03:
That's correct, Your Honor.

[00:11:04] Speaker 03:
And it's delivered through a vector.

[00:11:07] Speaker 03:
And the vector is defined in the patent as rather broadly

[00:11:12] Speaker 03:
including virions, but including other things, including plasmids.

[00:11:16] Speaker 03:
And there is an example in the patent of using a plasmid as a vector for RAAV.

[00:11:29] Speaker 02:
Okay, are there further questions?

[00:11:31] Speaker 02:
Because I think we're out of time here.

[00:11:33] Speaker 03:
Yes, I think I'd like to reserve whatever time I have left for rebuttal.

[00:11:39] Speaker 02:
It will either give you two minutes or the greater of what time you have left.

[00:11:44] Speaker 01:
Thank you, your honor.

[00:11:45] Speaker 02:
Thank you.

[00:11:46] Speaker 02:
Mr. D. Giovanni.

[00:11:49] Speaker 01:
Thank you, your honor.

[00:11:51] Speaker 01:
And may it please the court, that's Frank D. Giovanni for Genzyme Corporation.

[00:11:56] Speaker 01:
The district court correctly construed the claim term a stock of recombinant adeno associated virus to mean a stock of recombinant adeno associated virus virions.

[00:12:08] Speaker 01:
and then correctly apply the patent's express definition to that term to arrive at the correct claim construction.

[00:12:16] Speaker 04:
What are we to make of the fact that while the patent does start out referring fairly regularly to virions, the word sort of just disappears as time goes on and it really doesn't make sense that it doesn't even show up in the claims.

[00:12:37] Speaker 01:
You know, in terms of the concept that virions disappear, I think the virions phrase appears throughout the specification, throughout the prosecution history.

[00:12:53] Speaker 04:
It doesn't appear much after the first half of the specification, does it?

[00:13:00] Speaker 01:
Well, I think the second half is scientific in terms of it's showing some experiments that are undertaken, but then it does appear again back in the column 18, the very last column, it actually appears twice.

[00:13:16] Speaker 01:
So I think it does appear throughout the patent, and I don't think there's any reason why that would override the eight or nine independent ways that the intrinsic evidence shows, as found by the district court, that the term stock of RAAV means stock of RAAV virions.

[00:13:39] Speaker 05:
So your position, I take it, is that any time the expression RAAV appears,

[00:13:46] Speaker 05:
that it means RAAV variants, right?

[00:13:51] Speaker 01:
Well, Your Honor, I would say this.

[00:13:52] Speaker 05:
We don't need to decide that because... Well, is that what you think is the correct interpretation of that term is used in the patent?

[00:14:05] Speaker 01:
Your Honor, I know that a stock of recombinant adeno-associated virus means a stock of recombinant adeno-associated virus variants.

[00:14:12] Speaker 01:
That was the issue that the court addressed.

[00:14:15] Speaker 01:
That was the issue that the parties addressed.

[00:14:18] Speaker 05:
In terms of whether AAV itself... RAAV, not just AAV.

[00:14:24] Speaker 01:
Got it.

[00:14:25] Speaker 01:
Your Honor, I would say yes.

[00:14:28] Speaker 01:
I do believe that when RAAV is used, it is referring to virions.

[00:14:33] Speaker 01:
I mean, it is context specific, but I believe that was the intent of the patent.

[00:14:39] Speaker 05:
Now, in the paragraph that follows table one, you were just reciting column 18.

[00:14:46] Speaker 05:
The in summary paragraph refers to the two controls there, the PAAV slash AD and the PW 1909 as compared to the PHLP 19.

[00:14:59] Speaker 05:
And there, the conclusion is that the two

[00:15:09] Speaker 05:
controls produce these AAV virions.

[00:15:14] Speaker 05:
And then it says that the AAV helper in this case, the PHLP-19, produces RAAV.

[00:15:26] Speaker 05:
Now, is it your understanding from that example that was summarized in Table 1

[00:15:34] Speaker 05:
that the RAAV referred to there necessarily has to be virions because they're referring to the production of virions in those three different experiments?

[00:15:49] Speaker 01:
Yes, Your Honor.

[00:15:50] Speaker 01:
That is the position, and I think that's supported by specification.

[00:15:53] Speaker 01:
And I think when AAV is used by itself in referring to helper constructs, that's a different concept.

[00:16:00] Speaker 01:
That's talking about AAV, the source of the material.

[00:16:03] Speaker 01:
But in terms of RAAV and especially a stock of RAAV, that is a stock of combatant adeno-associated virus virions.

[00:16:14] Speaker 01:
Okay.

[00:16:16] Speaker 01:
So, Your Honor, I would then want to talk a little bit about the Edwards case and the advanced fiber case because what I've heard from, what I've seen in the briefing from Medicine Nova and Mr. Chapman's argument.

[00:16:29] Speaker 01:
You mean Anderson Fiber, is that what you were talking about?

[00:16:32] Speaker 01:
No, Your Honor, the case I was referring to is advanced fiber technologies versus J&L fiber.

[00:16:45] Speaker 01:
One of the chief arguments that is repeated by Medicine Nova is that the definition of RAAV virion shouldn't be used because that phrase is not used in the claim.

[00:17:01] Speaker 01:
Well, that theory or that argument is clearly rebutted by both the Edwards case, that's the Edwards Life Sciences versus Cook case, and the Advanced Fiber case, Advanced Fiber versus J&L Fiber.

[00:17:17] Speaker 01:
In both of those cases, the court conducted a claim construction using the Phillips standards, and in doing so,

[00:17:28] Speaker 01:
began the construction of one term and that term under Phillips naturally included another term.

[00:17:38] Speaker 01:
And then when the court addressed that secondary term,

[00:17:42] Speaker 01:
The court in Edwards went right to the definition.

[00:17:47] Speaker 01:
So, you know, Edwards is directly on point in terms of using an express definition to define a term that wasn't actually used in the client.

[00:17:55] Speaker 01:
And advanced fiber is very similar.

[00:17:57] Speaker 01:
In fact, in the Edwards case, there were several steps.

[00:18:02] Speaker 01:
The court there was looking at the term graft in the claim language, which the court under Phillips said required inter-illuminal as a descriptor.

[00:18:13] Speaker 01:
and then intraluminal required wires and then the wires must be malleable.

[00:18:18] Speaker 01:
And then the court said there's an express definition of malleable.

[00:18:21] Speaker 01:
So why, uh, while medicine Nova talks about logical leaps that the district court took here, there was no, there was no improper logical leaps whatsoever.

[00:18:31] Speaker 01:
In fact, it was just a one step, uh, I can call it a derivative claim construction because that's the term that this court used in advanced fiber.

[00:18:40] Speaker 01:
Um, so both those cases show that the term that's being, uh, construed under Phillips or being, and being construed using express definitions does not have to, uh, actually appear in the, in the term.

[00:18:53] Speaker 01:
So that, that is a situation we have in our case.

[00:18:56] Speaker 04:
Um, can I go back though?

[00:18:58] Speaker 04:
Can I go back to, um, I'm sorry.

[00:19:03] Speaker 04:
Is there any other way in the art to package, um,

[00:19:09] Speaker 04:
RAAV other than invariant?

[00:19:15] Speaker 04:
Because it just strikes me as odd that the word packaged would be used as opposed to variance, or packaged into variance.

[00:19:25] Speaker 01:
Sure, Your Honor.

[00:19:27] Speaker 01:
And I'll refer back to what the district court found.

[00:19:30] Speaker 01:
And this was a factual finding after addressing the extrinsic evidence, including expert testimony from both parties.

[00:19:39] Speaker 01:
And the court found that the use of packaged means that genetic material, the RAAV, is packaged into a virion.

[00:19:48] Speaker 01:
So the answer to your question has already been answered by the district court, and that's reviewed only by clear error.

[00:19:56] Speaker 01:
So both experts stated, Dr. Byrne, who was Genzyme's expert, said that absolutely packaged means the final assembly step and thus that packaged being used in the prior art means that the genetic material is a virion.

[00:20:16] Speaker 01:
Dr. Byrne repeated that.

[00:20:18] Speaker 01:
I'm sorry, Dr. Berger, who was Medicine Nova's expert, confirmed that on cross-examination at his first deposition.

[00:20:26] Speaker 01:
We have a situation here where both experts agree that packaged does indicate that, in fact, the claimed genetic element is a virion, and the court found that.

[00:20:38] Speaker 01:
So that's subject to a clear error standard, which, in the briefing, met a snow that doesn't even try to try to meet that.

[00:20:46] Speaker 05:
Could I return to the question that Judge O'Malley asked your opposing counsel early in his argument, because I'm still a little confused about the relationship between the two issues in this case.

[00:20:59] Speaker 05:
I understand that even if we affirm on the first issue, the virion issue, but were to reverse on the herpes HSV1 issue,

[00:21:16] Speaker 05:
that you would lose this case.

[00:21:19] Speaker 05:
That's my understanding.

[00:21:20] Speaker 05:
All right.

[00:21:21] Speaker 05:
If that's right, what if we were to reverse on the first issue and affirm on the HSV-1 issue?

[00:21:29] Speaker 05:
What would be the outcome in that setting?

[00:21:34] Speaker 01:
So if I understand the question, Your Honor,

[00:21:37] Speaker 01:
If you would reverse on the first issue and not read in, if you don't construe a stock of recombinant AAV virus to mean a stock of recombinant AAV virus variants, which is what I just recorded, if you don't do that,

[00:22:02] Speaker 01:
but you still look at the definitions and require that HSV-1 be excluded from the scope of the claims, we still win.

[00:22:14] Speaker 01:
We still win.

[00:22:18] Speaker 05:
But I would say, Your Honor... You don't think the district court, that wouldn't be an issue that would have to be sent back to the district court for the district court to sort out?

[00:22:30] Speaker 01:
Your Honor, so long as that express definition that's provided in there still applies to the claim term, then I would say it doesn't need to be sent back because the exception would still apply.

[00:22:42] Speaker 01:
Well, the exception would be applied.

[00:22:45] Speaker 05:
The question is what would be the implications of that for the case?

[00:22:49] Speaker 05:
In other words, is there any way that that Medicine Nova could still win the case even if

[00:22:56] Speaker 05:
hampered by the definitional construction given to the HSV-1 exclusion?

[00:23:05] Speaker 05:
And you're saying no.

[00:23:06] Speaker 01:
I'm saying no, but I would say this is that if the pretext of that question is that the definition no longer applies because the word virions doesn't, you know, does not appear in the court's construction,

[00:23:24] Speaker 01:
Now, if that definition doesn't apply or the court doesn't apply that definition, then there's an issue of, you know, then there's a problem, I would say, an incorrect reading because then the definition arguably could be, the exclusion could arguably be read out of the claim term.

[00:23:44] Speaker 04:
Is there any place, is there any place where

[00:23:50] Speaker 04:
accessory functions.

[00:23:51] Speaker 04:
I mean, we have to get to the accessory function definition to get to the other than herpes simplex virus type 1.

[00:23:59] Speaker 04:
And the accessory function is used in the definition of recombinant AAV virin.

[00:24:07] Speaker 04:
But I don't see accessory function used anywhere else.

[00:24:11] Speaker 04:
In other words, is that why that argument is proceeded this way?

[00:24:15] Speaker 04:
You have to get to the virin before you can get to the accessory function?

[00:24:21] Speaker 01:
I mean, I guess in terms of that question, you know, we didn't work backwards from a result here.

[00:24:28] Speaker 01:
But you're correct in terms of that is how the definitional exclusion flows.

[00:24:35] Speaker 01:
You get to the virion definition, which requires accessory functions, and then you get to accessory function definition, which has the exclusion.

[00:24:44] Speaker 01:
If the question is independent of the first definition, the definition of RAA virion,

[00:24:51] Speaker 01:
Is there an argument that accessory functions should be read into that claim?

[00:24:57] Speaker 01:
I don't know that either party has gone that direction, and perhaps there could be an argument to be made that it does.

[00:25:05] Speaker 01:
I don't know that I know the answer to that now, but I would say that as a whole, when the entire specification is focused on the creation of these

[00:25:19] Speaker 01:
stocks of recombinant AAV virus virions using accessory functions.

[00:25:29] Speaker 01:
And I would say this in terms of that first part of the construction in terms of interpreting the stock of recombinant AAV virus to mean stock of recombinant AAV virus virions

[00:25:45] Speaker 01:
You know, I mentioned that the district court found eight independent ways that the intrinsic evidence supported that construction.

[00:25:53] Speaker 01:
What I didn't mention yet was the extrinsic evidence, and I think there are three different pieces of extrinsic evidence that the court found that can only be reviewed by clear error that would have to be overcome by Medicine Nova, and they haven't done that.

[00:26:12] Speaker 01:
And, you know, on the first one, perhaps the most important one is,

[00:26:15] Speaker 01:
that, in fact, the phrase a stock of RAAV is composed of virions.

[00:26:20] Speaker 01:
Now, that's something the court found, and that's in Appendix 35 through 36, and it's supported by both experts.

[00:26:27] Speaker 01:
Remember, you may recall the expert, Dr. Berger, who's the expert for medicine nova, tried to change his testimony twice

[00:26:35] Speaker 01:
He was deposed in 2017, which supported this definition.

[00:26:39] Speaker 01:
And there were a couple of other points that he supported, too, that went in favor of Genzyme.

[00:26:49] Speaker 01:
But when he supplied a declaration a year later, he changed his testimony.

[00:26:54] Speaker 01:
And even at his second deposition, Your Honors, he changed his testimony even more after a break, after discussing the answer with counsel.

[00:27:03] Speaker 01:
Not Mr. Chappin, but a different counsel for Medicineova.

[00:27:08] Speaker 01:
I heard the tone, Your Honor.

[00:27:10] Speaker 01:
My time is up.

[00:27:13] Speaker 01:
Our point generally is, as you know, that the district court's 42-page decision amply supported that.

[00:27:22] Speaker 01:
The intrinsic and extrinsic evidence, every type of intrinsic evidence at the court has been... That's okay.

[00:27:28] Speaker 02:
Mr. Smith, I didn't need you.

[00:27:29] Speaker 02:
I think we're out of time.

[00:27:30] Speaker 02:
Thank you.

[00:27:31] Speaker 02:
Thank you.

[00:27:32] Speaker 02:
Mr. Chapman, Mr. Lichtenberg, how much time does Mr. Chapman have left?

[00:27:37] Speaker 04:
Mr. Chapman has three minutes and 40 seconds, Your Honor.

[00:27:40] Speaker 02:
Okay.

[00:27:40] Speaker 02:
Go ahead, Mr. Chapman.

[00:27:42] Speaker 03:
Thank you, Your Honor.

[00:27:44] Speaker 03:
I would like to start with the issue of the extrinsic evidence.

[00:27:48] Speaker 03:
And the district court did find in Jim Dunn's favor in that regard.

[00:27:56] Speaker 03:
uh... the fighting was that that evidence was consistent with its interpretation from the intrinsic evidence and so there's no fighting from the district court that the extrinsic evidence alone would compel the construction i think that this is a case that turned on the intrinsic evidence uh... and uh... as an issue of law in in that regard i would like to address uh... the issue that this did you give on the way

[00:28:26] Speaker 03:
about the district court relying on the definition of accessory function to construe the claim term after adding the word virion.

[00:28:41] Speaker 03:
And I think the district court did more than use that definition to construe the term at issue.

[00:28:49] Speaker 03:
What it did was take a product claim that claimed a stock of virus

[00:28:53] Speaker 03:
and turn it into a product by process claim, a stock of virus produced in any way other than using HSV1.

[00:29:05] Speaker 03:
And I believe that's more than simply a chain of definitions that helps construe the claim term.

[00:29:12] Speaker 03:
It is indeed a negative limitation.

[00:29:15] Speaker 03:
It's an exclusion, which I don't believe is warranted by the language in the patent.

[00:29:22] Speaker 03:
And lastly, I'd like to address the issue of if you disagree with the district court's interpretation of stocovirus being a stocovirion, this needs to be remanded or not.

[00:29:41] Speaker 03:
The entire logical chain that the district court relied upon to

[00:29:47] Speaker 03:
get to the negative limitation was based on the construction of virus being virions, because that is what then brought in the accessory function.

[00:29:59] Speaker 03:
The accessory function is used to produce virions.

[00:30:02] Speaker 03:
So without that construction limiting virus to virions, there wouldn't be a basis for reading in the accessory function.

[00:30:16] Speaker 02:
Why is it that the definition of accessory function standing alone is not sufficient to defeat you?

[00:30:25] Speaker 03:
The reason is that if the claim covers vectors other than virions, the accessory function is used to produce virions.

[00:30:44] Speaker 03:
And, for example, in Figure 5, there is a plasma vector, a plasmid vector of recombinant AAD.

[00:30:58] Speaker 03:
And in our interpretation, that would also be covered by Claim 1 and the other independent claims.

[00:31:11] Speaker 02:
Okay.

[00:31:12] Speaker 02:
Anything further?

[00:31:14] Speaker 03:
No, I believe by my clock, at least, I'm out of time now.

[00:31:17] Speaker 02:
OK.

[00:31:17] Speaker 03:
Thank you, Your Honor.

[00:31:19] Speaker 02:
All right.

[00:31:19] Speaker 02:
Thank you.

[00:31:20] Speaker 02:
Thank both counsel.

[00:31:21] Speaker 02:
The case is submitted.

[00:31:22] Speaker 02:
That concludes our session for this morning.

[00:31:26] Speaker 05:
The honorable court is adjourned from day to day.