use is targeted for dogs we have public statements by these companies a form of advertising and various other because the contracts in which they tell the public who buy the cord blood pressure for blood from them that they can't be used for dogs parents grandparents could set or that marketing materialistically to is being truthful so there's no debate as to what they were actually selling we also have fact testimony from at least a dozen witnesses talking about the business plan of these companies that they collected for blood to be used for future therapeutic use and that use can be for adult use as there are some of the marketing that actually said it can be used can you can there are a guarantee with the guarantee in transplant medicine is nonexistent the fact the matter is you have a more than sufficient number of stem cells and not be successful it's just because of the very nature of transplants server or transplants to proceed you never know so there are no guarantees and no one would be closer to make a guarantee but they did say on several of the marketing material so the question here is that correct with the screaming to determine if it's a sufficient number of cells for transplant patient to adopt it was prepared to give hillary isn't there a difference between therapeutic utility used for adults so there is a logical inference if they're selling their product to the pub saying you can use this for adults and we'll tell you that we'll make it will strain to make sure that you do have enough a sufficient number of stem cells guarantees and i'm having a hard time you can see that you're drawing some sort of line here between with going from therapeutically useful to necessarily working successfully for adults right these companies did was set up these type of surrogate assays that would actually allow them to make a determination whether they be therapeutically useful or not and if you tie that together with what evidence the jury her then there's a logical  geisha to go on and decide something else that would give you relief that you never saw it in your complaint or in your kind of place i understand point exactly i can say that i did do research on this issue because i was concerned about it before it came i've seen wasn't addressed in any of the br an issue of infringement and even if we were to decide that there is no infringement nonetheless we have held that the supreme court told us in cardinal chemical that we needed to review the district court's decision unrel politics if i could i had three points that i want to focus on today the first is as the sixty one that j paul was appropriate in this case and the fundamental reason for that is that there was no expert testimony given you would have expected someone to provide a standard what is the amount sufficient for them to look at the individual units stored by the defendants compare them to the standard and say these have it these dogs or they are happy there was no such testimony in this case the only expert test focused on marketing materials and actually that expert testimony was excluded after trial by the district court underdog  the reason that there's a real problem with going to services servicer expressly disclaimed over and over and over again in the prosecution history in the prosecution history faced with prior art that addressed progenitor cel six lots of prior art where cord blood was taken and examined and shown to have progenitor cells and over and over again with a good speech that prior art the patent he said those asked for those kinds of cells do not never made this argument but you're saying under the infringement issue not be indefinite the only way they could prove up infringement was why the cord blood had been transplanted to the south believed to an adult that had been the case has proceeded either it's indefinite because there is no scheme or someone comes up with a standard which is a service which i say you can't do because it's just like then you needed to take that and you needed to apply science to you view or do you know it's my understanding that our case we've never decided the issue of whether or not the over there is covered or is not can you confirm that or do you think we've decided that i don't think this course started an issue i don't think th objected to the sale or offer to sell part of that there was a lot are about that we think that's clearly right under the contributory infringement statute they are actually pretty it was the language to a transplant and there is no evidence at all about the five fifty three method pad ok and what i'm saying is that the instruction to the juror on whether that patent whether the method patent was infringed required pace because it was a contributory infringement theory or five fifty three required sale offers to the transplant or the transplant of being the last entity that performed the final step and that i'm now on the principle that once we have it and in our prison units there it said is forever and will never be so we don't know the point is there's no say so if the contributory infringement statute only talks about a banking for the family and when the time comes to use it we're simply asked to release it there's nothing that you can support the notion that it's a sale there's no money changing hands this is a misnomer this is your charitable charitable it we're not selling to the transplants somebody are things that we we obviously we provide something paid for it's to the family we provide a service to the family but the jury was instructed and there was no objection to they needed to prove the sale or offer to sell you know  that there would be a reinstatement of the judge's original new trial or that that's a way of looking at it yes i mean would that be practical impact of what would happen i think if if you were if you were to refuse the jame all right for those two reasons both of the discretionary decisions within the district courts discretion but but that would be something we would have to say to the district judge you now have the case back right to decide what to do with it because mr judge might have a different view o not enabled because the only element that isn't inherent is injection into a human that's it that's the fourth fourth on the matter and the evidence on that is what you do is you hook up an i which is what they and they knew how to do that because a transplant vulnerable time and if you recall we d that's clearly what he's doing he's comparing this to bone marrow he's saying is this is good enough for bob and barks so what's not and that would be my question and the question i wasn't effectively covered by some of the private references that are in the record but it i did find was the mouse examples which appeared to be new is is it your view that there's anything else of significance i wasn't sure about the essay but is there anything other than the mouse examples and please tell me about the essays where this is new of the jury verdict so on that number question fifteen when they talk about high fives really the question is what is what is the number of units that in france can you enlighten me as to you could show that the stem cells that they were recovering from are actually transplants themselves or certain genetic markers that was key to this whole process there's no way a position is going to inject scientific proof there was a failure to demonstrate that there was something in there that was therapeutically think that was called stem cells as opposed to simply knowing that that it was there pubic useful because no one has ever taken yes all right but do you make a note also to provide us with this information that would be fine and please check with mr andre says that if he wants to argue with you about something you can put it all together ok so he stored the rest of it so quick you stored the whole and in fact if you look at appendix one three three four six which is the creepy article you'll see that that's what he says and did so to the extent there's anything here turns on whether you want a froze