place my question based right and it seems to me that that you stopped objecting after a while and even every not not of every instance in fact so he was key was going question by question where the defendant would present facts on an ethical kind of try to build a case where that will count but all the time it's in your view it's building in your argument no every one of those questions added to the prejudice the of the jury it is correct that was intended to do that that is if we objected to if you look at the again one of three a you can object to a question or a statement or a stray remark and you want to well the question is whether it's clear that those that were inappropriate reference the question is how prejudicial or when i see evidence after that we can give you one example of how prejudicial w forty six eighty  structures are connected as i will go you know i hope you didn't see this in some detail during the terraces cross examination but you didn't have the slogan that interrupted by vertical space that particular thing before i go to tell the jury that this was just a technical but he said forty six eighty one without asking counsel to comment on one way or the other that was nice to us they were headed down a road of misconduct and prejudice without the opportunity to really oppose it was the reason that the district court delayed it perspective how do we respond to this question i had five minute ago that is mr ogust pad wasn't disclosed by you we argue that it's not on basically let me get to the issues after losing a three week jury trial on anticipation b s s written description and infringement after ninety five hours of testimony three thousand pages of transcript six hundred sixty eight thousand words typed up part of the mind of smith's with twenty five witnesses testifying dearer now seeks to ask for a new trial and seeks to overturn an under the jury's straight and clear the words inequitable conduct are never used by us during the trial the candor was used in any number of candor is used three times during the course of the trial the words  candor and candor appears in the jury instructions as well because the judge instructs the jury with regard to witnesses credibility and candor and so forth and so forth via the federally your last you know you can look at candor the words duty of candor just to be absolutely clear by agreement of the pardons the court showed a video at the outset of the case the video i'm sure you're very familiar with in which the court the video goes through the process of but obtaining a patent and it says here is the way you obtain a patent here's the way the process works there's the duty of candor and so forth and so forth as well as a number of other things that's the one with the big stacks of paper in it if you've seen it the and during my opening statement as i'm going through the opening statements planning in the past i say and as you just heard during the past video there is also this is the way the process works and i use that those three words no objection anywhere to any of times but i'm using those words these use it again later no duty of candor never again and in fact the way of the issue it's probably important to put this in context so that you all understand what our basic view on this is is look this is a three week jury trial with a lot of stuff going on and in terms of the number of questions that they object to today but they didn't object to then it's about eight nine ten questions by my count the in terms of the reality of what was going on in the courtroom and the reality of the case is much different than the reality that your would like you to leave  in terms of the way this issue comes up at the very beginning of the trial that there are two motions that are filed after opening statements and here's the context there is a dearth of not decided for reasons i have no idea why i did not call the inventor to testify a trial and prior to the trial they decided to use a fellow named antonio grand day to testify as to the invention story and we sat hey he's not disclosed under rule twenty sec to somebody who's going to testify about the invention story we should get to take his deposition the court said no we will require him to give you a declaration and mr grand day before the trial began before openings or anything else provided a declaration and the declaration said i was aware of the following prior art at the time of the invention and one of the things that he anticipation case and the obviousness case so grounded as i'm aware of that we do our openings in fact i do my opening and i say and you're going to hear from mr grand a who is involved in the invention and he's going to say he is aware of these three pieces of prior that evening dear sends over a corrected declaration of ron davis says he wasn't aware the m w so we filed a motion to bar the surrounding from testifying they filed a motion to bar inequitable conduct we show up the next morning because the court's very careful he's got a half an hour set aside every morning in order to figure out any issues twenty eight years on the bench two hundred patents cases a judge will  mayawati and deers says we can't have arguments of integral conduct and and the judge says are you guys pursuit of a i shrugged then he said do you have an inequitable conduct then tomorrow mr rahman day is denied now the judge also in denying it says hey walking out of a quote what the judge says i will have to go question by question to determine whether the requested answer to the question pertains to inequitable conduct or might be relevant to some other issue i think there's a motion to change the case by eliminating any possibility of suggestion that your client is unethical or in an equitable is too broad and then the judge looks at us and he said i'm done i'm your motion to and i don't know why you trial lawyers make motions like this because i would think you would relish the opportunity to cross examine the guy who just flipped on his testimony that's the way that's why you get into this issue at the outset of the case and then it's really not an issue in the case because there's only one question and mr mackellar being just highlighted the one question during deborah her testimony as by one of the other defendants that says something about opa being disclosed or not disclosed to the patent office that's the single objection to a question and then there's another motion to strike twelve years cross examining one of our expert witnesses now if it is i think really also important to understand the way the case begins to get this in context because this is the briefs that are before you try to portray a false reality of what happened in a three jury trial the case begins with you're calling their first witness and their first witness is a woman named their houses and deborah harrison testified that she's the senior engineer for rotary cutters at the time of the invention she testified about two years motivation to develop this product she testifies that she knows the inventor and she also knows a guy named ken opa who worked in the department at the time that they were developing them and she tells the invention story and she testifies and history which i'm sure you're very familiar with the prosecution histories and then the third is the patent and then ms harrison as she's testifying she read those portions she says look in the invention disclosure of this invention disclosure this was the most important prior art and then she testifies about the prior art that listed in the inventions closure which includes the rhino the bush and the woods brochure and she says well the woods one was of interest and the other was really weren't of interest so the very evidence that they complained about to that i make a big deal about trying to take out of context was put into the case by year at the very outset of the case so it was priscilla clear juries are not juries are very wise and they pay attention in my experience they pay attention to things and it was obvious not the way you all would use that term but it was obvious that this prior art was provided to the patent office by your other prior art wasn't and there's other prior art that's just out there the patent examiner found and that's really important that was important to us to be quite honest that was important to us because we were pursuing theories along the i four i case and so forth and we were potentially arguing to the jury that this is anticipated obvious no no adequate written description so judge arena go back to your question absolutely we were as not to overuse the word candor we were as straightforward with the court as we could possibly be about what we intended to do and didn't intend to do and dear had every opportunity to object and i'll give you an example there was a rule that was put in place in the court by the very experienced trial judge and he said look demonstrative exhibits you've got to show everybody your demonstrative exhibits twenty four hours in advance and then when you get there in the morning if there's any objection we'll go  all one of the demonstrative exhibits that your highlights in their brief is this one and what it says is what's considered by the patent office what was provided by dear but the patent examiner found which and then it says what wasn't considered by the patent examiner that information comes straight out of the invention disclosure the prosecution has story and other prior art that our experts are putting on during trial does your object to any of the language aren't zip it no not not whatsoever so now they come to court and they take a handful of questions that are asked by different lawyers representing different defendants saying things like what was that before the p before the patent office because well i should have objected i wish i could have objected to that because it would have poisoned the jury if i did it just doesn't ring true in the context of this case and in terms of so that's the way the case started out and you know and basically look i tell everyone that jury trials depend on the nature and quality of the witnesses and the nature and quality of the evidence and the judge made a very similar argument and post trial and the judge by the way found the deer forfeited that argument which was not in their opening brief and here's what the judge said about the trial it is apparent from the jury special verdicts and the court's observations during the trial that the jury found credible the defendant's expert witnesses and not expert witnesses you know sometimes you win trials and sometimes you lose trials but you usually women lose on the basis of the credibility of the witnesses and as we pointed out in our brief each of the jurors witnesses were they were impeached they were they testified inconsistently they fought the documents they tried to walk away from e mails and we pointed that out robustly to the jury with regard to the point that mr mccalla b was making about infringement dear have the burden of proof and by the way i will tell you right now that our strong arguments our strongest arguments are all i love all my children equally but it's obvious as an anticipation and inadequate description and infringement they're all great arguments can i have twenty seconds as of one of my colleagues times so that i can finish the point with regard to infringement dear have the burden of your actually did not even compare the product at issue to the past he failed to meet their burden of proof we demonstrated when we cross examined their expert who testified for a total of eight hours that he had not even considered slowing in forming his opinions and we cross examined him to the point that i would submit and the judge would support this i think that he was found not credible  blatantly failed to meet their burden of proof have a three week jury trial and now they want to underweight it by some casual references that they say amounts to an act of will conduct this i submit to you was a just trial it was a fair trial it was presided over by a very experienced federal judge who controlled that courtroom substantial evidence on this appeal deer has not urged the great plains not infringement jury verdict was against the great weight of the evidence so even if this court determines that deer preserved for appeal the error that is signed now this court would have to find that what the what the federal judge said were scattered bits of evidence and argument in a voluminous trial record resulted in a miscarriage of justice under the eighth circuit standard for a miscarriage of justice the court would have to find that there was insufficient evidence to support the one infringement verdict a showing that dear has not attempted to make on this appeal consequently although we believe for all of the reasons that our co defendants have had urged all of these verdicts should be affirmed at a minimum we didn't hear a defense against ray comments the council may but how the patent office was treated about how do you fail to provide hard to the patent office to hear them respond to this issue of how do we deal with the questions we intended to mislead the patent office the jury didn't get instructed any of these issues and the court the child was mistaken to allow these questions to go forward you look at the judge's decision had the trial going to the jury on issues that were not relevant to highly prejudicial and unfair to us and it spilled over to the balance of the cases correctly we did not argue in the briefs that were entitled to reversal of the judgment