one offered by i t w had bottom capture features that was exhibit two two two and then another tray offered by murphy had no bottom capture features that was in the six so there was a real question as to which of those two traits came first there was an additional evidence that i t w often used the same three digit tool number for a tray five seventy for that the vice president of ip responsible for the trade business to find out what prior art existed i t w that might be used to invalidate the murphy patent mr reading the report  november of two thousand and one critical as we know it was back in october of ninety nine to the five twenty six traded i w offer which is exhibit one sixty seven had no data so there was no five sixty two so he did test my the ball but again there was no corroboration for his testimony no drawings for example were provided by p w of the straits it was routine in the design of trains to have this detailed manufacturing drawings with different issues and let's not even come up here it seems to me one is whether the testimony was clear and convincing all the evidence was clear and convincing to wit is whether crisp's evidence cannot be considered because it even though ultimately one may say even with the notes crisp plus the notes still don't constitute clear and convincing but we submit that their notes don't corroborate because they the notes basically that chris was familiar fact he said protective walls which really are what we're talking about being formed on the bottom surface of these trees looks like they were added in one nine hundred ninety three which is too late they were taken off and then added back in so we feature in question was not shown as being added at a late later day that you therefore infer that the feature was already present and therefore you go back before the critical date why isn't that a maybe not a compelling inference but a reasonable inference and therefore sufficient to be corroboration well the reason it's not corroboration we submit your honor is because he did not know what those features were for example one of the features listed in the revision was protective wall and he did not know and could not tell on cross examination whether the protective walls had anything to do with buying a capture features for example there were various other structural features added that he could not associated with the features that he said existed on the part of the train prior to the credit so his testimony was insufficient to establish that any of those features whatever they wore were in fact added  to the tray and whether those features in fact were features that would give the trade a capability to support b g eight components on the part of the track i didn't you offered knowing voice hundred twenty six thread which was dated before the critical day but again there was no indication on the invoice as to what river hey of the five sixty two trailers and again we know that these what the show there would have been obvious or that there would have been a motivation back at the time of murphy invention was made to use a five hundred sixty or so pietra you're trying to find a solution for the problem of supporting for the fact that the he testified that it would not change that the invoice for the five twenty six which is eight to a six by the appendix that that was in you've given up on the five twenty not in the least and i'm comparing are the five sixty two there was evidence because it was introduced by murphy that there was a different five sixty two trial mr i believe it was mr redd testified that on deposition that that the numbers were used consistently and it was an exception in fact that the five sixty two that there was more than one version of the five sixty two and when i say version i don't mean changes and materials or so on a different design so that so that the five sixty to try there was evidence before the district court that there was more than one kind of design of five sixty to track there was no such evidence before the district who were here and there was after considerable and discovery had been taken by r h murphy they did they'd introduced no evidence whatever to suggest it was different there was no the circumstantial evidence that we use that phrase was the five sixty two that had been saying number with respect to the five sixty two we brought him we brought in a drawing which we had the  say boring examination but an examination that basically said here's the five sixty to try to make the physical example admittedly made after the relevant day but looking exactly like physical fight sixty two tracked his testimony is not that clear and as far as going from not to respond when he went back to he indeed he was not quite sure  honor what it what it is what it is is that mr kris was able to say as a result of looking at what the revision notes were that the revision notes did not indicate in any way that it was put out for no reason at all it's in in order to say if you're going to try to prevent after the fact or litigation inspired tested it you have to have some reason to believe that that it's true well the district court i think canvassed the evidence that he had had the witnesses in front of him and came to the conclusion that in fact the state the all the evidence all the testimony that was given to him all the physical evidence that he had led him to conclude that cris then we have the initial invoices to the shop identify and then just to make sure i understand your your position with respect to the evidence that there were different  so now is there anything else out there that we haven't can well i would suggest to you that the drawings are twenty eight nine of your twenty eight twenty nine being twenty eight ninety one which are corroboration in terms of the circumstantial circumstantial evidence that mr crisp was credited by the judge as we hear the witness having been a designer so that true the next paragraph on page thirty seven over brief shows that i can do it we did this same thing with respect to the so called five setter trade started out as a single sided trade nobody captured futures probert of evidence throughout the trial itself well if if you did and if the judge found the evidence to be admissible if he clearly did it would seem that the judge likely regarded there being sufficient there are a lot of actions that come up in different times in the course of the transom of which make their way to go courts of appeals in which the judge just overrules the objection to that giving a speaking explanation of why are we putting it in jim hall  but that doesn't mean that we have to reverse on the grounds that there was an explanation that none of the evidence is sufficient to support the that ruling we would submit you think not i understand clearly that but the question that the separate question of whether the judge