argument first in numbers zero five one five one eight upheaval stec knology against i and b now i think the opponents have decided to divide they're in fact i guess both sides who are dividing their arguments so it will be a bit of a challenge to keep track of time but i'm sure that he's brought us up to it so why don't we start then mr mr miller are you going first mr holcombe first very good that i wanted to make sure that you had a chance to address the question of the c d r prior art now i recognize that you contend that you did  not admit to the prior art status of the c d r but setting aside the question of whether you admitted to it did you in any anywhere in the record contest the fact that contest the prior status of the c d r however the reason we did not is because the i b a did not argue that the c d r was part except through its argument that we were stopped from arguing otherwise by the apple east as prior art and my question to you would be did you at any point say no it's not a priority yes sure i believe we did among other places in the statement characterized it as a prior are but that's not saying it's not prior art that simply saying we never called it prior another was one could say that i never admitted committing a murder but that's not the same as saying i didn't commit murder did you ever say you didn't commit the market to use the analogy to be clear i don't think we ever said it clearly but i don't think we ever needed to because i don't think that the i b m ever put that issue squarely in marketing of the device prior to july twelfth two thousand without the five k premarket approval constitutes a violation of the california competition i take it that your position is that there would have  so as of august and september two thousand there were only two viable candidates left now what does that mean what is the disputed issue of fact the district court and the respondents briefs give craig credence to dr tiller's testimony from the u s the florida that's flatly contradicted first of all if the court looks at the at the references to tissue the summary of the brief is very different than the precise question and answer the eight on whether fifty million had been promised by i b a against that the declarations and deposition testimony of dr slater plaintiff's president and of mr anderson who worked for i b m a it's a flight conflict of credibility this is exactly what trials  for the judge on the motion of summary judgment cannot look at this conflicting testimony and says i'm deciding to give creates the dr tissue there is a flat conflict that requires the standard test the credibility is seeing the witnesses and it down no damage because no final decision has been made by florida that damage occurs when the contract is signed with i mean we consistently argued this was a continuing tort through the whole period so the post and so for each of the separate course of action it's appropriate to allege where the grand jury her and what aspect of the of the toward occurred in florida and scuse me in california i understand the florida connection but where does the california next month in september so our position would be we are then past the point where the two a seven could have an impact on us from injunctive standpoint so for under the facts of this particular circumstance we would take the position that if the language is funny in big us it requires a can treat each treatment station loma linda raised this in front of the patent office that relied on arguments for the patent office that there had to be a treat each treatment station whether the claim calls for a number of treatments stations that's right and then says there's again create each treatment stage so if you say well say three treatment stations two of which have again tree one does not why doesn't that claim read on that in the sense that there are two treatments stations that have gantries etc etc now granted there is a third but what difference is that while i think it makes a big difference your honor because under that interpretation and that's the position it will it is taking it reads the word each out of the claim the way in which that argument is made that would hold water if the claim said horology of treatment stations with gantries and then you could have a treatment station without a tree under that claim which that's now if this claim says the first two treatment stage to certainly be the priority of claims would be the probably of treatment stations but because the plane goes further and says there needs to be again treated each treatment station each of those treatments stage every treatment station spec or some other explanation for why it is that the spec is to be read as having an embodiment that is somehow excluded from the claim we normally look to the spec and say well there is your preferred embodiment whatever the claim means it probably isn't clear that i thought i find it difficult to get around the conclusion that while there is ambiguity perhaps along the line of your discussion judgment as take it well i will actually your honor i believe there is because in the the prosecution history in this is in the record a g eight seventy six to eight in responding to a rejection from the think that in this in this particular case that is a clear admission that there needs to be a gantry it's every single treatment station in discussing the prior art so what this is page seventy nine of the record  are martin does not teach in his multiple station system would not benefit from the addition of the gantry let alone a gantry had each patient station so  the fact that the i b a system lacks an injector as claimed and back it up that there is no operator control me within the language of the claim i will unless you have specific questions on that i'd like to turn to the ability arguments i'd like to start with the five a one patent the record that is before you from a woman linda's perspective is shockingly sparse in terms of the actual evidence that they have s is the person in charge of the lab system before that detail point by point declaration setting for how the operation for a laugh works and she relies on a routine book which was in evidence which is a description of how it functions and she relied on her own diagrams as she drew in which showed the operation of the system and if i may turning to the ruhi book itself she relies on and j a this this again was was nothing but it at five if i want a problem module is described as the logic in the control room that looks at the veriest beam unable inputs and decides which if any produce the fault so it looks at the inputs one of the inputs is request for beam and it decides whether or not in response to those requests we should send a beam of the treatment team on to that specific treatment have just referred i didn't see that in your argument section of your brief that you had gone through those the way you have now and i was that in your brief words this will know what we've done is we've rel on the district court's reliance on the evidence that was before it right and that evidence was submitted and we did summarize in our brief the testimony of dr lennox right but but the sections of the  argued below but the conceptual design report was prior art in combination with the university of washington facility rendered obvious that to a so and again i don't think you'll find anything in the record below where loma lind anything except argue the merits of the conceptual design report not somebody evidence it was not a crime other than your assertion that they had knowledge that it was prior art by virtue of their inclusion in that in the submission to the examiner do you elsewhere assert that it was pretty a prior art publication and if so do you happen to have those references as well we would rely on the  conceptual design report itself for evidence of that it's dated june one thousand nine hundred eighty six so it's been more than a year before the final question is really public public dissemination issues and that's the one on which  it's sure there are forty one people listed on the conceptual design it's how we contributed to it only for those or the inventors so the remaining thirty seven this is a small universe people who would be interested in this document there are many thirty seven or the interested audience in terms of those who would have the report and there is no restriction on the report in terms of being whether it can be copied or distributed or anything like that so relieved that i was just a fact we believe that the conceptual design report on its face indicates that it is it has been published because of the listing of forty forty thirty seven understand them to be that to be part of their claim that in fact i thought that the whole point of mr anderson's testimony was that this was important at the time that the offer was putatively made mr anderson doesn't say we wanted the best technology price not the most important factor and there was no discussion in any of the documentation by any of the committees that looked at this as to the prevailing party he didn't have anything about  not going to delve into those areas where the f d a is charged by the spill but why what do you think that there is no predicate act here for purposes of the california statute even setting aside the letters simply by virtue of the assertion o a company was they were going to all the center and get involved with buying research hospitals or readers institutions like university of florida that's were cited there that's what mr anderson was talking about there wasn't going to be a sale they were go mileage there was certainly a failure of proof that the f d a reach their conclusions it was an interim occlusion it was not stated in absolute terms but that's different from an exhaustion if you look for us room if you look at the language just the fact of the violation well if you assume that we can make i think the decision by the judge or terrorize in the absence of a decision by the f d a there is no awful act  or not i think it's telling that all i can point to is the document itself which does not demonstrate that it was a print publication that meets the requirements of section one to a or to be to really say well the contributors let me also perspective it to a certain invalidity issue point out that well but just to be to be clear though there were i take it references in the summary judgment papers to that document and assertions that it was prior ar specifically dr walker at pages one three five three one and one three five three two disputes dr lennox's conclusions among other things dr long talks about the particular apparatus claimed in that patent doesn't have any gantry so the point that the pattern one was making in the prosecution history is this doesn't have a cadre and when he said much less he gave each treatment station he the language from the claim itself which the which the examiner i think it points to the second point that i would like to make that i think is telling on the two eight seven and the speech limitation  be a violation of the act under the california u c l a under understand the diction caskey that section but i specially want to focus on the conflict of testimony on whether this was material finally mr wyness oh well it it's very i purged the court to look specifically at fisher's testifying in terms of his credibility because every time he testifies on this he qualifies every time it when he's one they directly five and the best he can do it is that we ration his declaration which he has written very carefully is that he did i guess that there was a promise of up to quote and there's up to fifty million a media to fund the purchase of the i b a system he puts that in quotes all of these are negative pricks on the issue of the fifty maybe and the material but on the materiality in addition to mr anderson's testimony that he was there he was the one making the sale dr slater specifically testifies that he was told by dr tissue and the people at the university of florida that the promise of the fifty mit was the reason they chose i legitimately drawn from the course of events so when you put all back together the question is was there any is there any evan on china any evidence of any detail associated with that promise made seems and i think the district court was moved by this is well as i read his opinion but it seems like a pretty broad statement at best on which people would make a decision of this magnitude i mean this is not a product that sold on late night t v and which you know operators are standing by call right away i mean this is something that people really get down to the nitty gritty before making any kind of decision and just a sort of assertion well you know financing will be be decided by them side is the preponderance of the it is premised if a reasonable jury could taking this evidence conclude that that there was a material misrepresentation i think a reasonable jury could because we do we have enough here to go to the jury it's a question of what comes out of cross examination which is always important you know lawyers are depositional often don't do the full gross exaggeration to nail down things and they believe there is for cross