is more familiar with the case and has insights that don't come through in the paper record here we have a very unique situation the district court judge judge stark he picked up the case only after the time for the female actions he didn't live with the case itself for one minute judge forming judge signed judge jordan where they have been in case less ever have parses the results of the standard  resulted in a different standard of review for us to in a sense yes i'm saying that when we have a situation where the district court judge had no action in the case he's going to be looking at exactly the same paper record as you are in fact this is a situation where two of the judges on this panel most likely spend more time looking at the merits of the summary judgment decision than he may have  my perspective i mean it's one thing to say you take issue with them it's certainly another and one thing to say that the law changed in the interim and this judge didn't have the benefit of the acting decision and so he didn't apply the right factors are look at th i think what we are right there is there is a change in the standard we were in when all that was clear and convincing evidence we no longer have the rigid standard but if you look at what he found he said there's no evidence that honeywell failed to consider the litera question by judge starr and he says well we looked at the patents and the prior art there was nothing about to do it there was no production of prior art sir so presumably you look at the patent in the f wrapper then he says we did not see an anselmo or issue in the ins proposal documents but then a few moments later he takes it back and says now i'll tell you i did not see these documents before the case was filed i don't believe we looked at them it's a clear admission that he didn't consider what what should have been screaming at him should have been screaming at him that this is on sale of our issue this is technology that was developed to be sold to honeywell those who need to be sold to boeing they met with the inventors they hired inventors as consultants to be paid witnesses for the purpose of the trial the first question out of their the fact that summary judgment was granted the fact that judge foreign said all the technical people the inventors and their their supervisors knew that what was offered for sale was the two panel display and it is a basic pattern was one of one that all you need is an offer for sale not a completed contract the fact that there was summary judgment granted and affirmed by this court shows that no reasonable to consider and due to not just the finding here but the the specific findings by judge farming that all the technical people at honeywell knew about it knew that they were offering the two panels the good morning your honor i'd like to go back to the question with respect to what can this court do in terms of ways of discretion of the lower court and i think there is a narrow circumstance that we're faced with here which is when you look at the actual facts that were found by judge farnan and reviewed by this court that's a lot of the case and those facts are very strong and what they are is that the district court on a honeywell as a company knew it had offered a claim invention to boeing and it knew that there was a patent process that resulted in the asserted claim and i think given those facts with that sort of knowledge i don't really think there's any other conclusion but this would be an exceptional tace ok one of the things that judge stark indicated was that document the title of the document was a contract terms and conditions he then listed no less than ten terms from that document which showed that it was an offer and then he says even honeywell's own thirty six when this admitting that it was  conflict so it seemed to me that what we need to look at is exactly that which was raised by the cheese was there are changes in the standard which would change the result that's correct you other one for that you know one of the things i just cited said is a does no colorful basis to believe the patent would not have been held invalid the only issue that was considered was a nine hundred eighty nine invention disclosure statement while that was clear error because good morning ma'am please the court and martin luther king for honeywell the reason we don't believe there needs to be any remand here is that it is true that judge starr applied the brooks furniture standard that was applicable at the time but if you look at judge starks opinion there is nothing to go back to be evaluated again essentially very disturbed by the production and non records and that's true to this day and i can just go through the sequence of that production we've never turned over everything we had aims and if it isn't that extensive search honor and that's in the record in the declaration of mr wood's at appendix five one six six and six seven and then also mr woods was are the two and a half hour hearing that fallen before it did not but when he was subpoenaed and first produce the documents but we didn't find volume four either and they didn't find it until there was then a follow up or for us to go back and look for it and they had looked  subpoena in april of two thousand and seven and it wasn't until november of two thousand and seven that boeing actually found volume four and produced it but honeywell did go back and walk and that is in the record friends that's correct your honor and i would direct the court to ms over its letter of september fourteenth two thousand and seven at eight four to one that said in response to it for quest so far we have diligently searched for the document and we have been unable to locate it and that remains true today and so the point that i would make on remand is simply that judge starr looked at all of th is and also i mean we know that sometimes people settle case for a license just because it's less than the attorney's fees that it's going to cost to litigate so i guess i was wrong i do we do know many cases where we have said that just the judge starters order and i think if you look at the findings that he put forward that is not one of the points upon which is decision that's a surly term but but within that license neal you see broke out the licenses that were entered into before this argument was made and after and it was opera's who first raised this argument and it was object to who settled after raising and i would i would also point out that the volume four was actually produced in the litigation in two thousand and seven in the over in november or and it wasn't until october of two thousand and nine that a summary judgment motion was brought there was never a motion to compel never any issue raised with respect to sanctions never a letter from any of the defendants suggesting that we should drop the case and the case proceeded to summary judgment we disagreed with judge fireman's ruling but it was a it was a very hard far close case and in looking at what judge starr did afterwards he not only considered the paper record and  fairly characterize it as a close case here the way i characterize it that way your honor is that this was a very complex contract honeywell agreed that they would build the cars that they agreed to do it according to a price that price had many escalators and and different aspects to it but at the time the technology that was going to go into the into the cockpit had not been developed and that was something to do in the future there was no hardware to be accepted at the time of this ever done up to that point was give them samples and a value would tip of activity of that type doesn't make an offer we didn't know what that animal would look like and there was nothing for example two lines are a unit which we're fighting about here we didn't know that that would work in the cockpit the one lens array as it turned out there were no lines of race in the flat panel that went into the boeing cockpit so the point is the contract yes honeywell won the contract won the right to provide the cockpit but then had to develop the technology to put in that cockpit and that's the holy affidavit of paragraphs twenty eight and paragraph twenty so you know the principal dispute that we had was over these drawings yes then our inventors experiment to try to figure out how they could make something that both of the pilots could look at and see with equal lumin screen they certainly did but until something had been developed and gone through the entire design process ours knew that there was no i think you argue that there was a one lens display we did argue that that's what's in the game's proposal program with the aim to program honeywell engineers demonstrated to boeing when they were trying to win this contract hey we've done a lot of work on flat panels we think we can build that for you here are some of the stuff we did but  in our view that was never offered to boeing and we could not have stood behind that as a piece of technology at that time that that boeing could actually use an aircraft pocket and it didn't so that that was the underlying dispute obviously i'm not taking issue with that but what but but if we look at this court's decisions in speedplay and penn walt you know two things are happening here one there they're trying to  at what judge stark actually found he found no evidence of that one that honeywell failed to consider validity he found that there was that the what he characterized as the odd conspiracy that was proposed was far from proven he found that honeywell had a colorable basis to proceed both in the substance of the anselmo our issue and also after the ames the standard and well i as i read judge starts opinion and as i read octane i would say what survives is the object in prong of the test and i think that is a statement of game's proposal and i think he fully understood what those arguments were indeed he was talking about the object of the basis of those arguments and so i think you know if you look at this ports decision  consolidated aluminum what we talk about you know when to remand and when not this is a case even though consolidated aluminum doesn't reach this issue for so isolated the principle holds there's no need to remain and because the that the court sitting in the trial court be the same court that has handled each and every motion and in fact it's it's a regular occurrence that courts judges change we have three different judges in this case so the discretion standard is in my view the standard that has to be applied you look to the reasoning of judge starr i don't see that to be anything out of the ordinary here he obviously did a very thorough review of the evidence and carefully considered the arguments and that's what district courts are to do collected we went to x employees and then the over twitter i think he refers to she says we've been we've done this annoys him and we're not going to go back and look at it i think  that when judge starr talks about objective basis that's a that's a rule levon kind of an issue that are painted we're not going to look for for that kind of thing anymore and the aims proposal doesn't identify it to l think yes your honor the argument was made that the technology didn't exist prior to buying for as my colleague indicated it was inviting three it's also again stated that it's in volume three of eight to sixty nine and eight thirty seven hundred in addition honeywell's own experts stated that the two lines or rate was reduced to practice and this was prior to vying for that said a one five three three nine zero three eight nine and this was the we were the one samsung wrote the letter to ms oprah saying you said you were going to conduct a nother investigation in addition to the review of the documents that had already been produced we specifically asked her into september twelfth letter elizabeth braun said you know did you conduct another investigation or was it merely a review the response back in september fourteenth by ms overed was basically you know you guys this is just making the nauseous i've we've it's a waste of time you ask for it from boeing and then they don't have it either well they did have it and they never went back and there's no evidence in the records they ever went back to search the only evidence or not have is what argument was