knew the court today here's three cases on for oral argument two cases will be submitted on the briefs for the benefit of the counsel if you're not familiar with our lighting system  the yellow light will come on when you're beginning to consume your rebuttal time the red light means your time is expired entirely please furthermore be mindful that we have read the briefs carefully we are familiar with the facts of the case and the arguments so well your time is limited so do get directly to the legal issues you want to present to us today and don't feel the obligation to spend time on the keeping function under daubert versus meryl death pharmaceutical over formal written objection for plaintive thereby admitting that expert report is the sole evidence to support summary judgment that made the libby trial you know really second that the specifications the court did not comport with the compliance requirements of doubt and we know why the co ordinates summary judgment order on page twelve states plaintiff has not to the defendant's expert report which was by the way the sole evidence for the summary judgment in this case i have a cite for that of course that included a rebuttal expert report and supporting evidence of that report which was exhaustive that also included deposition testimony and other documentary evidence what do you say with respect to the court's comment during the hearing on reconsideration motion i mean the court says  know well founded in reaching his expert conclusion sounds like a conclusion admittedly perhaps shorthand but nonetheless a conclusion that there was a logical connection between the process and the conclusion was reached i see around like a yes it's mandatory under downward and the case of the following that the actual findings and analysis be placed on the record the court must  simply did not perform a gate keeping function at all and secondly there is nothing on the record or any findings that would indicate that they did it was directly or we required  expert report the fact that he refers to the claim interpretation in the case of course that the tests were specifically designed in the context of the litigation he's doing the test in a contest where he was looking to question you're not suggesting are you that any test which is done after queen construction in the context of a patent litigation would be suspect under the ninth circuit's rule even though the ninth circuit said something like that and now that that's not what you're urging us to adopt as i know you are it's it was we do with language which is comes from the circuit that you say we should be following here well i think that all that's required the procedures were not devised by the expert the technique of changing all of the chemical components rather than just one as a control context  that classified out of hand and accept the expert opinion but the factual discussion although it has some length to it it does not address the facts whatsoever on the issue of summary judgment or the first threshold question is the defendant's evidence capable of satisfied a clear a convincing standard of invalidity taken along here we submit that the evidence that was submitted was equivocal from the outset and wouldn't suffice to satisfy the jury in this ng standard  then this claim effect is also present in the sample identified just singleton example rick and if there is no synergistic filiform effect in the sample identified it's like that's an example three and the effect is also absent in the sample identified austin figure fo probable good flexibility is not built into the point where the lower court can disregard the requirement of being specific as to considering all of the dogs function but perhaps related questions but one going directly to the sufficiency of the expert evidence to support the summary judgment with respect in particular to the banding grouping of the results in five different grades how did what why would that process not one that left it unclear i'm going to find myself tied up  next let me start again isn't it the case that by banding like that it's very possible that some synergistic effect would not be revealed by the results and then you give me an example suppose  titanium dioxide alone that composition produced let's say pick one sixty five percent adherence and the wax alone produces sixty five percent adherence but together they produce eighty five percent of hearings that would seem like a demonstration of synergistic effect but they all three would get a grade of want under the test right that's right now why would that test still would be sufficient for one thing i take my example take my example if you had those numbers that would be synergistic effect correct i was sort of right and yes the test results would be one one one correct e no change between the three of them and three now why would i not assume from looking at the grizz also of the test that there was no synergistic effect when in fact we have agreed that there was prove and in my example it seems to me unless you tell me there's some flaw in my example as it pertains to this case it seems to me it doesn't prove what it purports to prove because we have a case in which there is a synergistic effect but the test does not was admissible that doesn't make it probable then to say we're now sort of in the area of saying well ok so the test comes in so what does it prove and if it doesn't  some fairly convincing probative effect it just fails to show that there is no synergistic effect when there might be some it seems to me then you have no way in the court's order it weighed the evidence and rejected the evidence of classified as medics what the court should have done was taken all of that evidence is true i