biologically possible biological possibility has been considered to be something that is grounded in good science and medicine in this instance is if there's a theory have to be proven require statute requires that the evidence be proven based on the record as a whole so that would include evidence that submitted in plans two and three as well as any subsequent to out there and it never explicitly overruled alpen and to this day the entire bench has not addressed this particular issue however supported by crown three one of the fact that one supports the other doesn't necessarily mean that that that would leave sure the preponderance of evidence burden with respect to all three elements based on the record as a whole yes we decision she she went on and on it some considerable length about prong one but at the end of her analysis concluded that indeed you had a pretty good argument that the analysis was used by the special master had heightened the burden change much mileage and she said it dr smith was asked about those statistics what he indicated was that the best study that was provided only had six hundred if i just thought i was going to take up all your time but i was looking at a forty six on the record pa twenty six of judge motions decision or she said harvard to the extent that special measures now has the evidence on the first part was flawed were convinced a errors were harmless because she failed to meet her burden of proof on the second  for self told people in the hamlets of one of the vaccinated so that was on the record but unlike some of the cases we've had where there has been a doctor who actually said i think that vaccine caused the injury in our case law that has asked the question what was the input from the attending doctors as we look to see whether there was express an opinion whether based on whatever  law doctors statement you have said i think the vaccine caused it without forcing the doctors after explain what the theory if you agreed that particular type of statement by the doctor is not in this record that explicit state if that is the article that i think it is what it demonstrated there was that there was almost a doubling of reactions from the flu vaccine not statistically significant but almost a doubling and particularly strong temple relationship can be utilized to establish the bond with evidence and in this particular case dr smith testified that early action occurred at the heat time that one would expect on the bell the court an awful regarding prong one talked about the fact that the theory that must be presented must be a persuasive more of a medical term the legal term in terms of talking about biologic possibility in fact to this court several times especially specifically mobley talked about the fact for fischer's came before this court and talked about proving something less than in the theory of like a mimicry has been shown in general to occur for certain types of diseases but in this particular case when you look at the evidence that was presented to the special master there was not sufficient for planted evidence to show that back the petitioner was brought up and who was a nurse brought up the fact that just so throughout the history of her medical records that is part of the history and yet the closest you get is a dr rodriguez raising in a differential the data points that are that are where you say the doctors are basically saying there is no doctor testimony that's actually making a causal link that's correct i believe also that if you look at dr smith's testimony in terms of what he said  you have to consider obviously the theory that he came up with i think that that he failed in that regard as well i think if you look at evidence of alternative causes which i think is considerable under prior to the necessarily require one that's really to me that's where as we think that you hear special master under prong want and by inference there's not a preponderance of evidence or and then she goes on a search but i want to use the same evidence coach in terms of looking at the the statements that are counsel indicated here that if you look at some of the statements of causation she was alleging that some of the statements tied into the flu vaccine post flu vaccine i think again if you look at the evidence here really that the historical marker is not necessarily a statement of causation is has been before this court and other cases by treating physician at best it's a temporal relationship but it doesn't state causation and in order to do that nona the only way we could establish that would be to have to monitor her on a molecular cellular level from the time that she received in addition to the time of course reactivity that's certainty that far exceeds that occurred you must deal with the evidence that is provided and that includes the close to be relationship which this court indicated in capital could be very probative and support all right thank you we have your position in the case you're right now going into some of this so i want to know from you all how much of that we are going to be able to in any opinion that we might issue how much of that is not really seriously assert charge supra competitive prices the record is replete with examples from their head of sales ron rivera for example saying we never had to lower our prices before allie now has a real game we had to lower our prices the  game by any issue two questions one first your opposing counsel i expect say based on the briefs that the uniform case  equivalent in all material respects and are the differences merely differences of nomenclature or are there differences of substance such think there is not actually even a difference i think what is happening here is that there might be cases in which in a lot of profits an they make the statement that what troxel their expertise talking about was technological substitution when he was an accountant and he was a planning on things like competitions and substitutability from an economic standpoint and i t responses are talking about the lost sales we're not talking about a situation where factually their admissions go to technological substitutability or guard with what the standard is in the case by which we contend great processing support and also uniform supports you still look at the economics substitutability absolutely but then there is a difference between the analysis that normally occurs in a lost profits case whether there are no substantial  nuanced here the point is that i did see overreached and it was profits case by saying there was a one for one had to do it they didn't say there are no adequately acceptable technological substitutes for the light they said there test which as you see from the price erosion which is different than the last profits question also clearly demonstrates that there was a market so there's a wide range here in the record of evidence of economic  do you think do you think those are functionally similar inquiries i think of the book by the same point i think that what is happening if you look at the cases and if you see the page nine of bally's reply brief in footnote two  three five point nine percent to fourteen point seven percent which is a very significant decline directly attributable to bally coming in with the wheel gains and i think it's important to note that that is taken in the context of their experts my name in the end maynard and represent the appellee they disagree or correctly concluded that there is no jury question here as to whether or not we'll shaped bonus games as opposed to games of any other shape with or without a bonus or a separate into a trust product market and bally's evidence essentially will found two things neither of which is sufficient to get to the jury on this question one are evidence of lost profits are penned to it damages evidence game and our real game and other real gain are in the same subject but they don't put down degrees around the market which is what's required under the supreme court's task to establish a separate entity just more so with respect portion of uniforms carefully and seem to me that the evidence in that case was much weaker than the evidence here the evidence with respect to our damages expert testimony is though it's an increase in to whether the patented product in the infringing product new would have an exchange out one to one and so in the unison case what happened that case ironically enough was about the golden brown color market determination yes totally it could have some bearing but it isn't sufficient we're talking about summary judgment here and the question is whether there's enough to raise situation material right and it would be relevant i would say but it is enough to get you there especially when you're talking about something that's really implausible like like here there's a real shape market you know here's the thing that bothers me about the inquiry into implausibility i mean normally we assume  consumers are rational they make rational decisions on economically rational grounds but we're dealing with an industry here that appeals to not well with the with apologies to the industry representatives that may be here to be less rational aspects of human behavior those people that respond to bells and whistles and will put large amounts of money into a machine because it makes a lot of noise so i'm not sure that saying well just the wheel is silly i mean that's what's the diff between a wheel and square well if the evidence is that to at least the kinds of folks that frequent casinos if it does make a difference and if the difference is demonstrated by something like pressure roshan it seems to me it's actors of course they are but they're rational actors dealing with if you if i may and the irrational set of purchasers and they are keenly aware of the particular features of that irrationality in it if you bend it just so i don't think you can sufficient evidence here to get to a jury because at most all they've shown is that we all games are in the same market with other meaning what they have actually judge my point is they have no evidence suggesting that if the price of real games were to rise by small but significant non transitory amount that casinos wouldn't shift to tower bonus games or square bonus games or any other bonus games that are pictured in our grief and that's the kind of evidence that they would need to establish an  and he was told there were no not infringing substitutes and so he just said i counted that as a vote for a real game and that that would have been a real sale now that may not have been a successful panda theory if it had ever gotten to trial but whatever else it is it's not an anti wheel game by ten percent without losing any significant amount of your market with that be enough to establish triable issue or relevant marketing we'll gauge if there was the relevant d there to pick and then they're going to turn the markets work so for that time when i'm the first one i'm going to be able to charge more and when they enter the market you're going to expect my price to drop but that doesn't mean there's a separate anti trust market for toothpaste with whitening all it shows is that in the spectrum along the spectrum of toothpaste products those two are competed and you know but if i had a patent if i recall thinking i had a patent on the whitening and i could sue them for selling infringing products you might have a one to one panic dansko but suppose that to take your example that the computer company hasn't developed a waiting teacher whatever it is and it turns out that your whitening features very popular in fact you say well we can really make a killing on this and you raise the price forty percent on your whitening toothpaste and you're always in the market you know it's in the market share isn't that exactly the kind of proof that would be sufficient to establish that w market it might be but there's absolutely no evidence here that we were charging a super competitive price before they entered the market and that ended a way of saying that the the price went down to when there was competition isn't it fair inference that the higher price with super can competitive because we know the lower price was competitive or at least we can assume it was no your honor if the under economic theory  that the super premium ice cream it doesn't compete with all ice creams and then it on price level people when it moves so it knows all they've established with a price drop and i'd like to say i don't think they've established a price drop but if you assume that they that that was a price drop at most they all they've shown is to look at the back up to their expert supplemental report is it a twenty five or sixty four range of multiple years but when one looks at the actual supporting detail which is at twenty five zero six four you'll see it's the relevant column is the far right column the i g g covered we're going and what their expert says is the relevant numbers  work with his numbers is the bottom half of the chart which is the effective price and so if you see they entered the market in november of two thousand and two under their theory our prices should have dropped upon entry but in fact they don't they go up so if values enters in two thousand and two two and so in two thousand and three you see for example the least seventy one fifty four in two thousand and three are affected priced  with up in two thousand and four and it went up again in two thousand and five two in the same with participation it went up for one year it went up it was up in two thousand and four and then you know somewhat anomaly it went down in the contribution the so if their theory isn't backed up he has only able to say that our prices drop to react range of years by averaging it together but if their theory is right we would expect that our prices could drop immediately upon their entry but they did not  and how could right i mean that's where i must be in your point that i yeah i'm having a hard to let me tell you what's troubling me about this and you can address it i'm having a hard time distinguishing between case say let's say  a sub market in hybrid vehicles where we can intuitively think that there's a class of people that really want to buy a hybrid vehicle or let's electric car they can each year who really want to buy an electric i gosh they will pay forty thousand dollars for an electric car that's really a corker all of that you plug in or they'll pay forty five thousand there's just they're not going to be influenced by the increase in price they're committed there that makes sense to say that that some a sub market or a market there may be another group of people out there who really really think it's important to have heated seats in  ok you have to have proof of cross last this to be in demand you have to have proof of this need and they don't have that so that's the day your hypothetical whole foods whole foods there was evidence precisely of that that the price went up and people would it should which from their premium and demonstrate the no it doesn't because that's just the price drop evidence all that shows is that we do compete on in that real games or within some markets that compete but it doesn't draw the boundaries around let that go to the jury in wholefood they have that evidence here they don't they don't have any evidence that if the price were to be raised a small but significant amount for a long period of time people the casinos would shift to other types of games and skipping to thirteen five twenty one the wheel had such a demand and such drawing power from consumers that and because of the pricing arrangement whereby the casino would still be making money it seemed to me that the i get into price elasticity issues and i feel i have to measure priceless then i would invariably involve an economist who is experienced in capping that price to citi and you did not do that in this case no so the rest of it is just complete supposition well it's not but is it because  seems like you he's saying i didn't have to inquire into price elasticity because there was there isn't except i think when you look at the context of this whole testimony so back home a couple pages back looking five ten you see  i agree with your and your statement there about what mr troxel was saying and extended any disagreement that something that the jury should be hable to determine meaning troxel has said there's ample evidence  statements about press less we see in discussing this one for one replacement those are facts that are now in the record the jury can take a look at and make a determination itself as to whether or not there's real views are relevant market same thing with the price r information that we provided same thing that in fact i thought he was incorrect when it said that there was not any evidence other than the expert testimony wrong there their head of tail said specifically in this in the records he said that they  got pressure was for to lower their real game prices by all their customers but it was not until bally had a wheel game and they were able to then say hey if you don't lower your prices will put in a bally monte carlo we'll game it wasn't until patent gives rise to a market but where you have somebody who's zealously trying to protect the space by with biology actions excluding competitors from that space by litigation by tying them up in agreement because of the back by their own admission they had stumbled onto the most profitable slot machine ever based on its feature being a wheel which is by the way and gave chance of wheels going to south africa on time i think and in the gambling world then you do have a market where you've identified it clearly based on the efforts to preserve it the clear ability to charge super competitive pricing the impact of price erosion on it in the analysis that dr adams is the most nearest substitute which was a premium bonus real's game where it has secondary feature which was the real instead of the wheels and his analysis showed that in that instance the same type of game there was not  sillier than the suits he said you could couple this presume because the car manufacturer almost nothing to install but you might get a few hundred extra bucks from people who just like having a bunch coupled their do with the way markets operate when somebody brings in a novelty this is the point that goodness moaners was making with the toothpaste but i don't agree here that this is what we're talking about is novelty and when you're talking about something that least one company went to great and paid one hundred sixty four million dollars for those patents we're talking about feature that was touted as the most successful and innovative that there is the concept of a spinning wheel like a roulette wheel like a game of chance the added to something in the casino space is a very distant define the thing we're not you know i think took the economic evidence shows wrong rivera's testimony troxel testimony that customers when they wanted a wheel they had to have a wheel and the point here is that there were no competitors in the market because i could be excluded them and it wasn't until their patents that were now know to be invalid and it wasn't until bally came in with another wheel that we saw the decline in prices and the point here is