about pooling agreement probably under christianson the supreme court case that laid out a lot of this they talked about how there was an independent theory of coverage under the count that didn't involve a substantial question right them without prejudice rich and or odd morag that your complaint was in effect amended to me from the case so that your entire jurisdictional basis has to lie in base i i will agree that that is what it would appear in service and certainly i can't disagree that counts two three four dismissed without prejudice you know made a rather i shot snide comment then you're a writer mr rader that i didn't particularly appreciate which was the end of what your letter of you said and would not even raise the issue until two business days jurisdiction of this court on appeal i don't know how you missed it but you're right both missed it and it's your drop to raise the fact that we had to spend two days trying to raise the issue archons and then get you to address it a course of predatory lenders exclusionary kind but in order to obtain a monopoly in the length effects silicon wafer of market in the united states so far you've said nothing that brings you to this court then you say including but yours and your answer is i didn't want it to include some non patent here no we were trying to to really bring to attention as we did later in the later part of our complaint where we specifically identifi related to her belief that we had to prove through direct evidence intent as this court knows that is not the requirement that the even the court has in rare to have that you know but it might be the weight of the event in indirect evidence if in fact we're talking about fraud to actually approximate interned rather than negligence but or otherwise even in star scientific there was no evidence and it wasn't a case in summary judgment i think a case that just came out of the northern district of california that we've attached and it's provided the court the sand escape case an instructive analysis of this because that work was very recently faced with the same issues that we had in front of judge armstrong both the sham litigation component as well as the walker fraud component and in that case the court found one similar type of evidence and i want to outline that evidence for the court and similar type of evidence that there was a there was a factual issue that you go to the jury regarding  with you some prior art that had to be gotten around right in but for getting around this arc with a priority claims that were made in both applications both patents they would not have gotten their patent there was the evidence that we presented  declarations and supported them with evidence from the records of the patent office and we provided that to the poor and not nevertheless the court doesn't even mention that evidence for example the court doesn't even mention or never used as prior because of the priority plan and the three beatification the same thing happened there was a point where both the bronco cation and a different patent or publication of four items were swearing behind using the clerk of the claim list of priorities and even then at that point this is now in the year two thousand so clearly i mean seen knew that there was no basis upon which they could make that claim a priority in either of those facts and in both cases that prior that i just referred to the bronco publication in the world publication this is never been adjudicated previously these were references that the patent office considered material and clearly would not have allowed either one of these patents but for the these claims of priority and this is just one example of the substantial amount of evidence which would read the  while in an equitable conduct we go through sort of a balancing process in an versus separate we don't do that under walker process right each cha independently ascertain you understand and that's the reason we presented the evidence we presented it and the judge armstrong we understand that there are still the element she found almost without exception that there was no direct evidence of intent to commit fraud she wasn't saying and most of her findings don't suggest that there isn't a misrepresentation regarding priority a misrepresentation about other evidence enablement and things of that type she's not saying that she's saying that we didn't show direct evidence of intent and that's just not correct under the law as as the n does case issued and in october two weeks ago so found and that case is very instructive i believe on this issue of why this patent prior patent was clearly misrepresentation it was misrepresentation at the time it was made and it was the reason the examiner when it had an all out the at the in the mc argued that you could not reach vacancy dominant area after that the examiner allowed case and so we know that the immediacy is now it's a law case in d c never has an actual reduction they never actually reduced to practice what they planned an attack there was no evidence that there was ever any knowledge or belief on him says part that they could do that there is nothing in the record and the record shows other examples of issues that relate to this which is part of the of the reason we submit that this was not amenable to summary judgment is that whenever the applications for the three o two and a three eighty were filed there was also another application was filed in the m c claims that its claim for in the three eighty was was directed   false claim of priority relating to the april one nine hundred ninety seven date when they knew at that point it when they were entitle to it this was a very important part of why the patent office went ahead and allowed those plans we had in the case of the testament there was presented in the summary judgment we have testimony by dr park that you could not even make this make any samples that would work there was also acknowledgements by the president of c m e m c in the in the agreement with samsung that they had to have products technology in order to enable and the one thing that's always been the case here in the evidence is the fact that there's always an inconsistency between the positions that in the mc took in the patent office and his positions in the litigation and we pointed that out and these are also very relevant facts that the court should take into account i think that the i think that the demonstration through overwhelming evidence facts that were laid out in both the declarations of why it's in particular and mr is faster relating to the the things that relate to intent so i'm i think i'm going to share issues under paragraph seventy of count one that at that issue is it's necessary to decide pat what issues to resolve i greeted those ok so there are four basic issues on the table is the patent by over the prior or does it meet one twelve requirements do we have evidence of a frenchm and and that's it with respect to prior or on the california or the district rules they put up their preliminary that final friends with intentions was fifty or sixty references we move the court to make them if this case was a sham or if it had water process problems we never would have gotten that summary judgment secondly with respect to enabling this court on the last appeal saw extensive briefing on both sides on the naval question and it term patent column eighteen lines fifty seven to sixty three it asserts that figure sixteen including for the relevant vacancy down at the glamour free material that occurred at one hundred twenty five millimeters two hundred seventy millimeters as well as in two hundred ninety two four hundred millimeters if you look at their export step declaration with miss idence and she agreed that figure sixteen showed a quarter of that year she agreed debatable fact you're saying it's not well they're experts as well as the patent show a reduction to practice of what is claimed in the failures of the patent and so while they may argue with the bad science doesn't that undercut your position and if you knew it assuming you knew it was bad and science in which respect in respect if they're arguing it was bad  science i don't know all the science that underlie i think that they put on they presented evidence on that one sided that you presented evidence we have that isn't that a theory question i don't believe so this case your honor because one even the minus three standard is a standard they call out into their patents issued after our patent they've identified the same standard they define the same method of action down through five measuring the volume of a surface area on the priority claim on the three a patent if you compare the provisional application was originally filed in one thousand nine hundred seventy and you compare it against the claims that actually issued in the three patent you'll find that most of the claims are identical go further find it was in the utility application has filed in to be a very weird situation where someone committed fraud because they claim priority back to identical claims with the same specification in a provisional application so all the relate it back to a specification that has a lot of qana figures and in words even if the claims aren't necessarily supported by that earlier specification the case law says that that is not fraud and again we're looking here for issues of and it did seem to me that if you step back and look at that certainly and the m c has had its share of losses yet the nature is such that it doesn't have a fairly good point brain of the case with no will no basis for infringement one limitation that became the critical limitation relating to kind of let me just back up i'm going to answer this post in for in the case of the arguments were made this is this is critical they never argued that it was it was because of the slow cooling process that they used and the v over chip that mr evans just talked about that's not in the area of position you can look at it for yourself and see that it's not there what they said was when he used the condo you don't get a vacancy dominant area which is less than one thousand effects per cubic centimeter that's a volume metric m dimension not as he would like to say in using our own patterns which only measure on the surface in are not measuring that particular kind of defect but are only measuring on the surface not the bottom they use the defect limitation the one thousand less than one thousand defects per cubic centimeter as the distinguishing back over that so that the case was really the arguments are made in the patent office really related to the salts of the process not the process itself and this is important because when it came to proving or trying to prove actual reduction to practice similarly they did not bring forth evidence that we in september of one thousand eight seven went ahead and used the slow cooling process that wasn't their evidence their evidence which was rejected by judge armstrong and it's now with all the case that there was never an actual reduction to practice it was simply that the results of an experiment they did reveal the wide open that was it nothing about the process itself or how much how much it was so the prior rulings by judge armstrong related to something a different issue we're talking about the water process for our issues which is what we're talking about here today we're not we're not talking about prior art that was found also doesn't show that and so what we have here is a situation where we do have we do have prior rulings but those prior rulings don't dispose of the intent issue under walker process there was no evidence as to how a silicon repeat these claimed limitations which were result based rather than process based or how the process was on the issue of priority i want to touch on that for just one second when when there was a claim made in the in the patent office in the three eighty