actual production to practice second the clear and convincing evidence in the case in the trial record is that meeting was responsible for the actual reduction to practice six of the claims in book in the pat requires more than the exercise of ordinary skill in the art everything about the synthesis process requires more than the ordinary skill and in the art where do we find that because i've read her testimony and i don't own the description there of any work that went the on ordinary skill the the work that she did involved applying a known method to the solid state reaction that to these compounds through trial and error to the work that she did was found to be what was found to be worthy of of a claim in the patent and it to be patentable in the method that she that the method itself was patented ike i don't know the process i understand the process involves heating and cooling it involves grinding small amounts of material getting them in for scribe and prescribe formulas and i don't know that all of the that any single element is is hard to explain at this point thirty years later but when they were when they were doing this thirty years ago no one no one else was say she she was the only person responsible for creating the compounds well with what's an example describing those steps and if those steps are not followed then the resulting compound is either is either degenerate story or which are contemporary which are contemporaneous documentation of her work we had the testimony of dr king forrester who was working in the lab at that time in observe her work and the testimony of christopher lead us to work with her to the repeated processes to produce better and better samples so that they could so they can prove the superconducting properties but end up my problem with inventive about the claim rather than the actual method of processing in other words what we have here is a situation in which chu says that he thought of making the complete substitution using the magnetic earth metals and that that was what was inventive in that the implication of the water was just a routine and i'm not sure normally have had a lawyer so i'm i'm i'm i'm going to misuse terms but that it was known art what we did have was testimony from dr forrester who said he observed that rulings work think that's her full explanation your honor her for ms meaning english is her second language she had not been in the united states for very long at that point there was it's hard to go back to the time when this occurred but there was intense public scrutiny of everything that went on related to these of inventions and she was sure she was under under pressure to do to assist she to assist the university of houston in protecting its claims the interference action that you're referring to i i i don't know she she testified in court extensively about the discussion they had history court could have displayed her based on that conflict in testimony yes i don't think we're i think that there's conflicting evidence over who suggested the use of the solid state reaction method but i don't think there's conflicting evidence over t i don't understand the district court's ruling the district court lays out the presentations by both sides and in the end just says that i've said in the end just says that there's there's no way to decide whether she's an inventor or not you know i don't we don't what you're saying is we don't have findings that might be helpful here from the district quarters actually happened well we do have the finding that she was the only they're not really findings  just recitations of testimony but we do have a finding that she was the only material scientist that that meeting was responsible for the dr to admitted that being was responsible for helping him describe the census process and that the method used in preparing these compounds was critical to the production of a superconductor the issue the issue is and i think i mean i think that the it that this court's opinion falana has is what matters most to them is me and it is that without the work that she did there would be no superconductors and that there was no there within her w seem standard practice today when it occurred in one thousand nine hundred seventy it was it was not it was in one of those that would be pretty interesting if there were testimony to that effect but i don't see the testimony that says in which corroborate dr horst claim to have invented the magnetic rare earth line of high temperature measuring so just just to really just back to the basics sure dr chu did the partial replacement right well i think that i'm in at the end of february that is a matter of in contention i think there is conflict the evidence on that point dr chu he was a little but ok let's assume ok that he did the partial work and the dates or something like february twenty fourth twenty second ok so then as i read the record there's all this stuff that was going on in kind of a two week period in march correct and all these different people to the problem is it seems to me that there are two possible ways that dr or could be an inventor here one would be that he came up with the idea of the complete substitution and the second one would be his that he was the one who implemented the test and and saw that it worked and that  laboratory oprah doesn't say who thought of making a complete substitution but it's before the day on which who are said he thought that i don't believe either side claims credit for the march seventh and march march eleventh or twelfth when you look at dr choose prior writings on the subject his prayer writings are very consistent and which they say in which he says as far as doing this para breaking  experiment in which you substitute in the magnetic element to break the cooper pairs that are responsible for superconductivity he says that those experiments those pair breaking experiments involving the substitut of magnetic rare earth elements occurred only after the chemical structure and that the chemical formula for the y the c e o one two three what's not which was in the march sixty eight depending on which version you to actually believe at trial then he testifies that no i did care breaking before that but based on my gadolinium experiment on this to consider dr or to be an inventor i think there is because there are other rare earth elements that doc that i think the undisputed that dr or no but my hypothetical was asking who was asking to assume the was the one who thought of the complete substitution of all of the magnetic rare earth metals and he did in and i understand the argument is that the simple idea of the substitution isn't enough for the invention because you know it was kind of work and it was a comparable technology what i'm asking you is if that was the case that we accept that testimony that he was the one who thought of the complete substitution can dr for be an inventor under that assumption i would think so because obviously dr or also have that idea at the same time i think if you accept dr chu you have the idea the evidence was also writing i assume that you're referring to the section of your brain where you say or prove his claimed inventor ship by clear and convincing evidence and then your first point is to use own writings credited or with creating the magnetic rare earth sobering connectors and you rely on a letter of reference not only the letter of reference but also articles that an article that dr chu wrote with respect to a doctor for performing the care breaking experiments using complete substitution of gadolinium so it's also in one of the scientific articles and if you also look at the timing of all this experiments occurred and then look at when the scientific paper is published march sixteenth that's dr there's no bears complete agreement that it was prepared on march sixteenth immediately complete lot of evidence regarding the worldwide rush and competition that's going on during this time to create compounds there's also the timing of the patent application regarding the magnetic weare kurds on march twenty six which is more than a month after dr chu claims he invented conceived of all of the magnetic verse was incredible to believe given the pattern  practice of the timing of his patent applications that he would have waited a month in order to file a patent application an entirely new line of these magnetic rarer superconduct that he thought of it but that we credit the idea that he that the whore implemented choose idea of the complete substitution with that make dr for an inventor i think under the standards for for a co inventor ship for joint inventor ship where you have a collaboration well first of all under thirty five u s c one sixteen there's no minimum threshold close proximity not to let a doctor for contribute at that point that was more than routine i've read his testimony i don't read he says he supervised the experiments but i don't see any and there was clear testimony from this in the evidence from the dean there was testimony from the dean of the college that you do not misrepresent the facts in a letter of reference for promotion intent here that's one of the most important moments in a college professor of life and you better you better have the facts correct and you better not credit that person with something they did not do so it's not like  did and that he didn't live forever but i'm still confused if if if or didn't conceive of the idea of a complete substitution let's assume that what is it that he did that was an inventive contribution oh he did he did make he did direct the making of the compounds he did take that and if you look at the lab records you see that there's also the conception that if there is some conflicting testimony the maybe the testimony is quite as conflicting as the district court or it was in we don't have help from the district court in the findings that would be useful  felt which was virtually everywhere that they couldn't meet a clear and convincing standard he did not give them credit for a finding which means he accepted  didn't lie that seems to suggest that the work that he specifically stated that dr horton did our head under his supervision of was an accurate statement of what a couple of things about doctor dr chu wrote letters of recommendation to horror there in the record dating back for him to to get salary increases at a later point he listed dr for first on a couple of papers he did and then of course when he made a lot of his writings he credited the lab and because he's giving them credit for him a lot of money too as i recall yes sure he did he gave them a great deal of money he's a generous man he was generous of them in every way possible and now it's being used as evidence against him and i don't think it's right now if we're looking to wait if he says something and he says it was an accurate statement but an exaggeration and i mean it's a it's fair to say that it should be held against him we don't rule in favor of someone just because he's a generous person and i understand i and i do appreciate that what i'm trying to say is that we have a record of evidence during the invention period that it is very clear that the whole of dr choose very consistent very high level intellectual analysis as he went through all the steps to get to hundred fifty s english case on contracts that every one of us read our first year of was all that's rights or the other the other thing that i think the court focused would like to subject of course the core to go through the the actual documents of the partial substitution if we get a chance separate invention and we need to focus on the question of who thought that whether there is evidence the doctor or dissipated in that and whether he did anything else that should make him an inventor here i can do that let's start with the first complete seventy two should the first complete substitution were not was not getting let him first complete great getting your rabbit so the partial substitution work was done but over february they had at the end of february after that partial substitution work was done had already done all the partial substitution work in this why p c l to want for because he knew it had the black face and he believed black face superconducting so he didn't want to wait for the one to three so in feb twenty eighth he learned one two three but he testified it wasn't until march seventh that the lab had one two three available so he could do full substitution so on march seven chu has a series of formulas written out on documents a five zero five nine dash six zero also dated march step those are a list of complete first of all we have to keep in mind that dr horror did not come on the scene until march fifteenth perhaps the death of a few days earlier when he said let's do cattle  available as of march seventh those formulas were written and march eleventh yes but you're not really responding to my question as i am i'm very familiar with the march seventh entry and complete substitution right the question is who's responsible for that entry well of course we don't know for sure because ruling may involve it dr chu claim there's nothing written about dr chu on there if you go to to finish the complete substitution like i need to make the second and third most magnetic rarer after gadolinium o p m and some area chu turned to having those two complete substitutions made and those tests were listed on the march seventh work i just referred to and those were tested on a series of dates beginning march eleventh right and as i understand a doctor or is not claiming to be a cohen venter with respect to the europa him in some area you're exactly correct he's not being was dr who or didn't enter the picture until march fifteenth and this work completely subject to should work was tough first let me ask you i'm getting a little confused here we're just talking about complete substitution so if we that i think what you're saying is we can give we can credit doctor to with complete substitution of these other xmas and but what about cad to linny him and if even if that's true  significant to make a complete substitution it doesn't follow automatically from the article subsystem let's assume that and so focus on the question of whether or dr chu was the was solely responsible for the substitution work fine understand better perhaps not enough but i understand your point if you were going to start out and do the complete substitution you might do gadolinium first and that's  those two worked and certainly got the lamie minium including the work not done partial substitution would work as well so that there was as your position that there was nothing inventive about dr who is work with samarium but that aside the the question is do you agree that the record shows that dr hoare was the first one to think to order the substitution of weed substitution of cattle and no i don't i do da ok i don't know not well because i don't think it's corroborated the only person that mentioned anything  that that partial substitution work was a standard practice and he drew scientific inferences from that and when when the one two three became available  i don't see where he says he thought of substituting with complete substitution of gadolinium or that he ordered well ok i'm sorry if my page numbers along i don't have another this whole series was made by proposed by me and then tests were made and i soon that's not about the complete substitution since doc that has dr horrible but that's all i can get out of second post magnetic where so as i read all the testimony of the case and understood dr chu gives a partial substitution work open the doors to the complete substitution and that is where he says it on thirty nine dr whore she is me i believe that if one two three had been available at the time well dr chu started his work and in february he would have done kenneling it with a and he says you it was time to run all the year earth so you're saying it was the idea on march twelfth i think these people working very closely in the lab i don't know why doctor or came in and decided start doing this in all the other errors so when dr who or comes in four days later and starts testing where urse he's he's actually getting on the train is already left the station but forty nine seventy six it's dated march fifteenth nine hundred eighty seven underneath that if you go down to for a one in four o two and the reference over there is a seventy five fifty five and eighty eight fifty eight those are the temperature superconducting and the two partial substitution done by chu and the partial substitution written they're the ones that he did she pull that out and put it all on the one for your time they are ours this you asked me for citations to the dr forster testimony i would point you to pages thirty four sixty one to sixty two and thirty four seventy eight where he talked about ms means care contribution to the moment of this invention of non trivial involving into been an expertise in thought and beyond the normal level of others in the lab there is where the patents claim a method for making it it's our position that where the fans claim a method for making the compound the chemical compound that the person who responsible for that car making that compound in creating the method should be crewed credited as an inventor the clear and convincing in fact undisputed evidence is that it isn't even was responsible for all the steps that are described in the patent and  there's no doubt about that with respect to the partial substitution there is no evidence mr hewitt talks about all these experiments that were done partial substitution but there is no evidence of anything other than one possible partial are tons of formulas that are written in the lab notebook but there is no evidence whatsoever that any of those other than possibly gadolinium were ever actually created were tested so there was not a long claim credit for that particular lab notebook either the doctor or so the formulas are al there it's hard to know what to make with that particular evidence but with respect to not understanding can also be read to indicate that dr chu is the person who directed you know that that's a that is a possible inference i would agree with that but i think that the more logical inference is that they did