kirk premise his testimony on only a portion of the relevant record and on false statements yes where what record evidence supports the statement that he based his testimony on false statements that is  thirteen seventy five at the bottom of thirteen seventy five dr yadav says as an initial matter the priority documents do not disclose the combination of twenty minutes and forty hearse the first  and the paragraph describes a device to apply cyclical forces concludes with the president mention embodied as the device described here repeat this cycle at a frequency of up to about forty hert the next paragraph says upon completion of one twenty minute duration of activation the device automatically shuts off clearly referring to the device in the previous paragraph indicated operate at to about forty hertz so when he twenty minutes til it's part of the issue in the in the subpoena this these two statements say that there is an example at twenty minutes operating at forty hertz and dr got of said there is no example twenty minutes at forty homes so side would need an expert here i think is that they need evidence is there a case that you can cite me that they need an expert just i don't think they have to have an expert ok to have evidence outside the public record that they presented because that how does that take us to the fact that they have to put on extra ticket because the presumption of the liberty flows from the intrinsic record so when the patent issues we all know what the intrinsic record is that claims the specification and the prosecution  his definition if he is not an orthodontist you're right so he's not a person of skill no i believe that he is a person still in the art but how does he make this definition and that's because of his background and training so are you be answered what you've  the question in detail for example at the bottom of page and in twenty five or says very short evidence as to the possibility of using time periods some months longer or shorter than twenty in and they say your if there's prior art that anticipates they've made a case of invalidity which you don't even dispute the only question is you come back and you say well no no no no that prior art doesn't invalidate because we've got a priority date right that's this case that's close but i believe that they have to carry the burden on the written description in order to meet their priority so we we don't stipulate to the priority documents and you're right it was somewhat pointing to another mistake that the court made at the bottom of page twenty five of the next place twenty five where the court says there's no hint but these other times it insights to produce pharma a case i'm sure you're familiar with that you disclose a forest you know you need some something to point to the tree that is a challenge to this richardson not raised by propel if you read dr you out of testimony he is very clear that in his view the written description disclose s about twenty minutes daily and nothing else he disregards so other other points to your original question he disregards that the portion of the says or longer or shorter or other frequency that's repeated several times he disregards the different frequencies so your view is that if you have an x per time he only deals with one aspect one phrase in the written description the the district court judge can't read the other phrases in there and deal sure how it is about twenty minutes which is in the application of the right support the range one hundred twenty minutes and claimed it does not but the two words or three words about twenty minutes taken in isolation do not support want to twenty minutes we haven't argued that they do or we've argued is basically to step on absolutely well that that is not remotely the limit of this disclosure that this is closure when you read the statement about the fact that they are trying to do something that is shorter than what has been done for one specific statements that it's about twenty minutes or longer or shorter or other frequency meaning it doesn't impact every day they're clearly disclosing that they have a broader view than about twenty minutes so step one of this inquiry vs the disclosure as a whole clearly shows that the inventor was not limiting themselves to about twenty minutes and that's part of the challenge and only had the presumption of validity so what step two and step to get is dr russkies analysis that works through the entire disclosure that shows that in the provisional application there is an exact sample that shows forty hearse and twenty minutes we just pointed to that directly then in the utility application the inventors disclose the use of point one to four hundred first they disclose it three different times one of them is at twenty minutes the other two times is not limited to any particular duration and brodsky explains that when you look at the range of frequencies and the fact that it's a broad disclosure what duration would you expect to come from those frequencies and he explains how he gets to one minute from that so he uses his that he's not a person is going are then you would have to look at this disclosure and decide for yourself whether that evidence if if you conclude that you can that you have to get there that the presumption village and i good enough that a substantial questions be of stuff on a c v's a metallurgist so i would say no he has experience in dental implants i believe than the metallurgist background probably plays into that what materials you use but in terms of having we're talking about braces we're talking about liners we're talking about orthodontic treatment in terms of skill in that area and i didn't see any of that and that's why we made the point so one they say you need expert testimony which you're on is point i'm not sure there is a case that sa that but if they're right about that they have no expert and i think you just heard counsel admit that but that the most compelling evidence in this case and area it says you need to look within the four corners of the document of the priority  documents the inventor in the provisional application said use zero to forty hertz with about twenty one he filed the parent out location he apparently came to the realization that a broader range of  frequencies was appropriate he went from zero to forty from to perform two point one to four hundred times ten fold tellingly what did he do with respect to duration he again sa d into virtually every patent application that we can even vary in every issue and it provides no guidance to one skilled we are to want twenty minutes and the opportunity to argue that it's a different issue as you recognize here most of the stuff for right rightly or wrongly has been not what burdens exist in the preliminary injunction stage so i don't understand what you're and invalidated the patent to a sponsor because it did not enable the invention so similar one to a first paragraph issue the finding he made to do that was that there was no further evidence  submit on the issue that could change and i submit that's where we are here we've had the positions we've had expert declarations we've had a hearing we have a parallel i p r we have a federal circuit of appeal well at this point we have an expert declaration that we're kind of questioning whether we ought to just count because it wasn't even a person skilled in the art that doesn't mean that during a trial look i have absolute sympathy i know you've got a client who is looking at even if you could be able here going through an entire trial and your hope and probably your belief is at the end of the day this case is going to go down on written description and any of that i just think it's quite a sort of exceptional ask on your part at this juncture there is no doubt it is exceptional extraordinary relief we didn't put it in a footnote and which i'm not sure how that's what you know we have a lot of the ticket we have a lot of cases that talk about what footnotes meaning what they don't but anyway ok let me i don't want to belabor this i apologize i just really taken aback that yes you're right and the the pretty farmer we obviously if there's any question about his ability to testify from the perspective of a person of ordinary skill even though he saw himself an orthodontist we certainly will get an expert that will not have that problem that is not in this record  talked about other things on the record like depositions have been taken there are things that are that are in the i p r record that are not in this record that i have referred to that we believe support our position that there is room descriptions or i don't think it's proper for me to argue to you things on this record so i haven't the criminal application says that paragraph of the proposed invention would be worn for approximately twenty minutes daily but could be worn for a longer or shorter periods of time both more or less frequently meaning not necessarily every day it