the district court's decision in this case should be reversed because there is not clear and convincing evidence that different methods of measuring the strength in this advantage or d i y riggers different results contrary it says that scale values are different it doesn't say to what degree scale values are different and that's important the study is a study that each of those instruments used at different one of five different methods that only once expert identified such identified five methods that existed at the time of the invention for measuring b l y the general motors approved instruments use four of those methods and general motors had approved for instruments each using a different method this is ten years after the s t m standard which general available instrument that was used to measure feel why the time of the invention so how to what it a person of ordinary going the art care about what method was used to measure the o line there's really no evidence of that specifies on the second page that there are four different instruments for measuring the ally there is so there were four different commercially available instruments to measure dia lies the time of the i uses a single method of the calibration and the analysis of the results was different and it was obvious in this record saying that even with respect to a single instrument that you could use a different  there is not evidence that even with a different single estimate you could do to use a different approach your honor calibration every time you measure something with an instrument you have to calibrate the instrument i mean every it says ten years before g m for three four eight am was issued and by which time the instruments were different tet so nineteen ninety five a s t m what's t this agree it also says on the very next page and let me get to this because this this is important on the very next page appendix five four three paragraph four it says the value of a painting by the measuring procedures given in these methods generally correlate well with visual ratings for deal why now the global clocks which is one of the instruments identified how different are the scale values so that's not and i think there's some confusion in the record here there were only very expert identified five different methods there were only five different methods so there may be different standards in everything but by methods of those five methods that existed at the time of the invention for measuring the you know why four of them were used by the key and approved instruments  the specification does not say in hyperbola which method to use but there were only five even plugs it doesn't that's correct your honor but it doesn't have to according to the sports press and there were four instruments and they all produced it if if you look at what the g m approval means of these four instruments issues in a different method what could it mean except that they produce equipment results and yelling when your expert produce different results he had personal knowledge of two of the instruments dr glass rod had no personal knowledge of any of the four instruments there is no evidence that she ever examined the instruments there's no data showing that if the scale values are different different on the entire scale or are they only different in one area i mean there's no evidence of that there's no evidence that to say the scale values are different as night fell ice that is different methods yield significantly different survives the morning writers various representations has just been made and the oral argument that i'm afraid simply are not supported by the evidence if you look at it dr guy's wants to reports there's a total seventeen pages who quite frankly it's painful to read it's incredible detail it lays out the differences between all of the various tests reveal why in as i said excruciating detail and that's that's what counts here and their claim that you can somehow go to the g m forty single digit of speech when sixty nine and seventy was significant because it meant the difference between infringement and non infringement and that's that's the point here is that we have the s t m saying things come out differently be careful we have the testimony of mr leggett the man who they hired to actually run the test and by the way mr leggett shows how important that particular g m thing is because he actually used g m one you want to one so there are not fi dozen because they went to the patent office with a while are telling a district court forty to be forty three forty eight they're going to the patent office with other ones so there's a whole thing here are these all can be different and that's clear from from the for three of the things are digital and they use different wavelengths and different things and everything so what you had up having is you know one of give you a sixty eight or a sixty nine and the other one was called the globe oxus basically you have a kind of a correlation thing here you kind of look at you go like this you look back and forth and you know it's like you know american bandstand you know i give it a seventy so that's where the big difference here is and i think what what's very important in this case is that we have to review this these facts one clear about the district court she went through these various different protocols we all gave for dr dobson seventeen page declaration and when you look at it was clear there are a seri findings that we set these forth in our brief on pages five and six and then they have to show that this clear for all of those to overturn so i think it's very important that we also be careful about the case for which sometimes they want to conflate that it has to be clear and convincing evidence first of all the judge twice cited clear convincing evidence is standard on page eight of the opinion number one but number two is there is evidence that you look at for  for example you have other cases where you do now now you have the claims construed but now you have a situation where you're applying that it's truth item to determine whether it is and one of the things that we have to keep in mind i think it serves your i'm sorry i don't think it serves your interest to argue about a clear and convincing evidence standard which is what the district court of law if that's correct your honor  if we do you know you look at it with reasonable certainty so our view is that when you look at the evidence that's there and the judge below did look at the evan change you want to read very carefully and also said that their expert was  what position was a bare conclusion and as you properly pointed out judge by that that's the his declaration so that if you're doing this for a g m part you can use these two that i know and in our situation what we have is judged dr carson is very experienced measure her background is there and she discusses all of these things they're attempting to use the fact that she cited two references to specifically says show where she got the various numbers from a somehow that means she doesn't know the equipment that was basically to support her position that that yeah these numbers are actually taken from the from the materials for these things so i think what we're looking at is a situation where when you look at it from a clearer standpoint i believe judge vaughn is correct i believe each of the findings she made were correct and the evidence that there when you compare for example that was put down by the experts in the detail and all of that i believe that we should affirm we're talking about infringement isn't that right i would say that we if you look at our brief we do talk about the grill room in the red room what we're talking what you're talking about i believe is in the red room when you're determining whether this infringement no no i thought that that's what i heard you say  in her mind looking at the evidence in her mind clear and convincing that she was not able to construe the claim and therefore we don't go farther sort of like we just have the argument here about a one on one situation you know if you can if you can't get beyond a certain point in the case that sa i'm sorry are all they had to do was to put one in this case one of the patent application and this was sort of addressed doesn't have to be in the case you could have testimony that someone skilled in the art of notice is the right measurement method to use system and that's the problem you should have put in there just use this test and we wouldn't be arguing today it's that simple and who were going to put the burden on it's like in a contract case they wrote it neither one is here because as i said even if you accept that forty three forty eight is that's just for tests they work differently what they did to test for and for that was still a fifth test they went to the patent office with several other tests so they were brought  identified at the time of the invention for measuring the l i and p m s approval means they produce equivalent results the only evidence to the contrary is the bare statement that scale values of different methods do not agree by how much that's not clear and convincing evidence that different methods produce different results we have that we have to characterize it says of the results if you have a different method method measurements the results must be significantly different that's just common sense if i take a measurement with two instruments someone says nine point one and the other says nine point two that may or may not be a significant difference then on the situation there's no evidence here there's no quantitative evidence of any differences between these methods there's a fair statement and in one nine hundred ninety five report which may or may not have been reflective of what happened with these four instruments in two thousand and five but that should be clear and convincing evidence that different methods yield different results and it shouldn't be clear and convincing evidence that a person of ordinary instrument she doesn't give a date on when my eyes to want to use the instrument but in any event that instrument according to her was equivalent to the same method as one of the g m approved and statements the evidence says person skilled in the art a what instrument do i use to measure this they didn't ask what method their expert asked what method but it's the time of the invention a person skilled in the art i asked what instrument do i use this was done just think of this of images in measured in the auto industry for at least thirty years prior to this date it's a standard measurement it's not a measurement that's created for the purposes of cad it was a that out this is something that stunned all the time and wasn't left out of the wasn't left out of the specification sure applies we don't dispute that but the laws in this circuit expert testimony supporting this that because one of the instruments measures and then is or is a five and the other may measure and there is one but that means that the claim is a definite there is no basis for that