not only inconsistent with direct evidence in the case but it's inconsistent with a ton of circumstantial evidence in the case and a good place to start is genius his argument that there's  in your case which is that failure to establish that any genus lenses ended up in the united states so if you could just focus all of your argument right there that would be there there are all i need to show that it's more probable than not and i think we have why did you not just break open an apple on i mean i have one back in the chambers it would have been so easy to do why didn't they break open a single phone a single i pad anything just to be able to show that some devices made their way into the u s with gina london your honor i think the evidence is circumstantial the overwhelming that they made their way into the united states and that genius believe that first of all they were put on repeated notice from larken that the larkin patents cover the genius products one of those documents eighty eight ten express i and i have no objection to your arguments about infringement in terms of the lenses covering being covered by the larkin patent my only question to you is where is the evidence that these that genius believed that they went in the united states and they were told that their products were in the united states on eighty eight ten they were told expressly that their lenses were incorporated in apple products sold in in that document they quit so the patentee tells them that their products with products with their lenses are any definite us and you think the patent team's claim that they're ending up in the us is evidence that they did end up in the us if that were true wouldn't it a hole the many need for actual evidence in iran or my it's a totality of circumstances argument let me just add to that the argument is that not only were they told that their products were covered by u s patents but the documents that we have relied on showed that they said there was they had a patent problem they change one design because of  oregon patent they said it was a big issue for their company then gauge a multi year two year project to evaluate whether or not they infringed us patents no rational company would engage in a two year project is this just a follow up on judge moore's question i mean the points you're making are points that are relevant to whether genius itself had a subjective belief that some of its lenses were ending up the united states but i don't know if you can point to what they may have subjectively believe or not believe as evidence that to meet your burden that the lenses actually arrived in the united states and i guess that's the piece that i see or judge more wondering about and i'm also wondering about is what evidence can you point to that we know what's going on inside the black box of the supply chain china to have some comfort test is more probable than not and i say a reasonable jury could could assume that because a genius engaged in this multiple year investigation because they said in documents there was a big risk for them because they changed the design of a product because of a u s patent or i'm saying is when you put all these things together no rational and one of the letters were sent to the ip head of the ip department the very first letter in ingenious so we're not talking about letters in reference any of the patents at issue in this lawsuit it wasn't until the end of the two year period that larget made genus aware of these patents you're absolutely right gen conducted a two year attempt to design around other patents that larkin made it aware of i don't see any evidence in this record that larkin made aware of these patents until the end of that two year process so i'm not sure circumstantial evidence of attempts to it tells you that genius wouldn't have gone through any of this if they didn't believe their products were sold in the united states it tells you and not only as to the patents ensuite but  only to show is that a reasonable jury could have ruled for a long going on these facts and what i didn't mention and which i which has to be added to the points i did mention is that and there are certain things i cannot say in court because they have been m a but it's clear that hundreds of millions of of lenses of large and genius were sold around the world it's clear that hundreds of millions were sold in the united states it's clear that apple not differentiate between large ingenious we don't know what the suppliers did this i don't believe any of this is confidential just wave your hands at me if i start going there i'm going to void all numbers ok i think that's the keep confidential stuff but we know there are at least two asian suppliers in the supply chain there are people who get the lenses from sheena's and put in camera modules there are people that take the camera modules separate company takes the camera modules and puts them in phones and i pads then those phones and are imported by the second company sent to apple for apple's distribution in the u s we know that apple didn't care or place any limitations on whether it was larger genius lenses that were put in whichever phones were going anywhere that is in the record but we don't know is how did each of these two suppliers handle it maybe supplier number one said let's put all the genius lenses in the ones going abroad in a large in lens is going to the us maybe supplier number two sets only ship the i phones with the large in lenses to the u s there would have been good reason for them to do that in fact because those suppliers were the ones that imported the product directly and therefore could have ended up being accused of direct infringement we don't know it's a black box and you all could have taken discovery on all of that in any point in time and didn't and added it to this record your honor your late probability there is a probability in the abstract it could it happened we know abstracted and apple didn't dictate how it happened but we don't know what two separate companies in the chain decided to deal your honor our position is there was no reason for the suppliers to discriminate against genius lands as ship only or there was the when you put all of these items in the bucket it is a reasonable jury on this evidence could have found for larget on this issue it could have found that is more probable than not given the fact that they went through an investigation given the fact that they found that three large in patents were infringed by three genius products at the end of the investigation or in the middle of it they found that none of them were in the u don't have any reason to reach that conclusion you don't have any reason to change the design of your product unless you believe that your products are in the united states all i'm saying is that is substantial evidence on which you jury could rely to rule in favor of lard and that is more probable than not you're raising the district court said well maybe their investigation had to do with our samples that were sent the united states and on page five of the referee they argue those were particular product lines right one product line a genus was almost exclusively providing till so source yeah right now i'm trying to be very careful with all confidential information and another product family to another product line where it was clear that based on the raw number of lenses produced by large in the overall number of lenses produced by genus and the number sold in the us some of the genus lenses in that product line had to have ended up in the us right that is true the district court said the district court exempted from summary judgment all of those that is truly run and all i'm saying is that the test is a very low test and i favor it i think from my standpoint it is a common sense and now with us a common sense analysis tells you that when the products are interchangeable when either one could have been provided when apple was putting no pressure from the record on any of its suppliers to to do to put one or the other into the united states coupled with this long to your analysis that shows you the genius believed its products are in talked about the couple categories that are in dispute and with respect to what's left all of the lens that came in the united states in cameras in phones could've been supplied by larking the basis of the it could have been but aren't they entitled to trial on the that we've seen that we cited was sixty to eighty one where there's some indication by our own employee that morgan lenses in some circumstances perform better we also know that laurean hasn't been sued for patent french so the real issue as since discovery there was no effort whatsoever to create a record on this and that circumstance to give them the benefit of the doubt seems wholly improper that has to be some basis ninth circuit law which governs the standard here with respect to summary judgment says mere allegation and have that expert testimony so they could have spoken to someone who knows that supply chain and how does decisions were made why do certain lenses going certain cameras at the certain places we're talking about world wide distribution  sufficient to supply the entire number of u s sales and so the district court denied summary judgment there too because it has to be the case there were if it's true supplier market and larget only made ten units and twelve are sold in the us it has to be the case period for a particular product so given that there's a question of fact and looks like in aslan's this would have had to have been used or supplied to the products that ultimately ended up in the us during that particular time period for the particular product why isn't that additional evidence that really strongly indicates that suppliers were not simply and only using large in lenses for judgment on that case and that the strength of your case in my mind on that is not very strong so we know what like what happens how does that fact implicate what the suppliers were doing with lenses in general assume if i may for purpose of this record if we assume what you say screw that in that circumstance the marginally better past the system integrator of these lenses and there was no alternative supply and therefore to send a product of united states the system integrator in china would have to use a genius lens and that supply which the united states we assume that the then they would like transfer well that means there's no discrimination that means that they're willing to use but that's really a stance if there's a source there isn't a choice to be case they didn't have a choice in numbers here which i'm not articulate but are so overwhelming that it just seems really unlikely that some genius lenses didn't end up in the us but is it just simply you know it's their fault because they should have had to show that what if they had come in and shown that one phone but they came and said we just bought this phone at best buy we cracked it open and look there's our lens and right there would that have been enough to get completely fill this hole in the perth i don't think a single one would have been enough because more time not because then this is summary judgment and what it would have shown is at least some don't and if i may i don't have a lot of times i may switch over to a couple others i think honestly that issue or glycerol we just point the focus on it right that percentage wise then some of them get through the answers there's no record to support they did and they had a chance and they didn't that's why it's improbabilities enough i mean this is summary judgment and it's inferences and why isn't a probability enough i mean suppose i'm making these numbers up to be clear but suppose they were the seventy five percent supplier of lenses and apple says we don't care which lenses you use in the products that come to the us there's no agreement the supply nothing in the supplier agreement that tells them from apple they must use a particular lens suppose there's a seventy five percent supplier and camera that when it's an apple product that would completely exclude the possibility of importation of a genius product united states that's possible in this record we don't know the only way that you get to the point you're discussing is by granite it's a random situation anything could have happened but the point is when apple tells them it doesn't matter which lenses to use why should we assume in the absence of any evidence that they nonetheless chose to segregate them and so that's not the record the record  they didn't i'm pretty sure apple said that they don't require place any requirements on use either one of these a spike you are to suppliers and i have you may use either of their lenses to fill this order if that's the case then why isn't that enough we need the summary judgment we're just wondering if they proved enough to get to the next stage well they haven't because it's the source of that decision making is that the system integrator module and their level and there's no evidence and under the case law when there's no evidence years in the united states of course but lou lots of their products and manufactured were in taiwan or in china china primarily we're talking about here but they're stripped all of them all just because you speak to someone united states doesn't mean you're selling the united states there's an assumption here and it goes to this if i could get to this act of encouragement should be easy easy way out of this case and it's very simple the judge found on one basis he found lack of knowledge and we have talked about that right very much here but there was there  was no new knowledge and there was no evidence to support it but but the easy out is active encouragement there's a requirement under our under the law microsoft lorcan much show the genius took an affirmative act to encourage infringement with knowledge that induced taiwanese company the didn't have lawyers the did a technical analysis in the engineers and look to see where the elements were present all right they got a letter on april second two thousand and thirteen and they were sued on june fourth two was necessary mr downer says that they must have believed that there was importation united states the theory of liability in this case of lowering the primary through direct in french was by virtue of geniuses activities in taiwan and china  get sold and even if they knew even if they knew the products were in the united states well there's that were an apple products there is no evidence whatsoever and there's no basis for reasonable inference that they did anything to encourage that that they wanted apple i just like in a few points one is that the question is does more ask some questions and i know they were just questions but nevertheless you focused on isn't it more likely than not that given the total number of products that w the products in common united states now they charge us how come we didn't investigate and when we said they should have investigated they said wow they would have had a blank wall the fact is it would all they had to do to get out of the infringement issue that was created by the organs letters was to show that their products were not so important in the united states they never did any of that they they talk about that's an interesting question who pretty preponderance of evidence so we have the burden but all i'm saying is when you got this bucket with all these facts and it would have been the easiest thing for them to have established that their products were not sold in the united states that's something they easily could have found and they didn't they didn't do that on i'm saying is that's a piece of evidence that goes to what is more likely than not what is fifty percent percent that what you're saying is they didn't carry a burden that they didn't have no i what i'm saying is that it's a piece of evidence and we have the ultimate burden but it's a piece of evidence that goes into whether it's more likely