disclosed was held to be unforeseeable on the basis of non disclosure of the reference in a separate patent and pharmacy of the court surveyed the case law and made quite clear that in that situation the separate patent would be unenforceable not be and forcible unless that separate patent was itself procured by an equitable can do you then are you saying that there is just never and instance in which there will be taint which would be applicable only setting setting aside cases in which there is actually an equitable conduct with respect to the second patent which in which case changes are virtually irrelevant in cases of non disclosure the answer to that would be yes i believe if the problem in the first patent was non disclosure and there's disclosure in the second patent i believe that the disclosure itself is a complete cure for the earlier non disclosure because it allows the examiner to consider the previously undisclosed reference and then examine the application on merits in light of that record might have a very different situation with an equitable conduct was an affirmative misrepresentation rather than a non disclosure because the affirmative misrepresentation could you know include statements or create impressions that somehow might be relevant to the prosecution of the second this case only deals with non disclosure and where there's a non disclosure and where there's a non disclosure in the initial patent and disclosure in the second patent the earlier non disclosure is completely cured by the subsequent b subsequent disclosure of the reference in question your honor asked earlier whether we're wrong on exclusively on pharmacy or we think form c is very important and i think it is the answer to this case but it's also not the only answer it's not the search reports to that information so there's no indication there's nothing that would lead us to conclude clearly that he read the search for no there is nothing and in fact his testimony was that he had no recollection of reading of seeing the h translation my time's moving along so if it's ok with the court i'd like to address the next issue which is literal infringement but let me ask you quickly a question about this should have well heads in the sand issue and i think in response to judge post you were saying that you don't think that's a viable theory of an equitable conduct i mean where i'm going with this is the f n c against tennessee case this court said that one should not be able to cultivate ignorance or disregard numerous warnings that material information or prior art may exist merely to actual knowledge of that information in other words head in the sand that's a basis for finding an equitable conduct as i understand that statement challenge to the evidence not a challenge and you're saying that she simply wrong in concluding that they put their heads in the sand not that that's not a sufficient legal basis on which to find an equitable contract i have to say that i find her decision on that point is is correct that the instruction that was given was be a cease and requested instruction is that correct that's correct part of the construction because he proposed ok and the dispute that we had to do include construction isn't exactly accurately represented by b a c in their  record adopted in the districts construction was defined undulating to mean rising and falling in waves thus happened at least one crest and one trough did she say anything about the meaning of the term about how how the rising and following needs to be done yes to rise and fall and waves it can't rise and fall in straight lines that's not good enough rising and falling in waves is the is the shape of the that's a standard dictionary definition of undulating the court then adapted that construction by adopting the second portion which says does happen at least one crust in one trough in order to harmonize the construction with the preferred embodiment which has one crust and one trough expert testimony pointing out the crust and troughs and we showed through other expert testimony as well we believe it was ample evidence to support the jury verdict on little infringement and i'd love to sing more but my time's running out i've got a little bit of time reserved for a bo said there's no case that indicates that where there has been arguably an equitable conduct in patent one but the non disclosure is cured to the extent that a disclosure of what was not disclosed in connection with the first patent is disclosed in connection with the second there is no case from this court in which we have ever had held the second patent to be unenforceable for an equitable conduct you agree or disagree we disagree what you certainly have the original prosecution they don't disclose something then in the reissue they do well that's every issue you have one that's not a reissue that's a separate patent either a that it would mean any claims in that patent or related patents and we have the statement moldings where they were downstream they didn't even try to argue with you or i can't stand here equitable conduct doesn't affect those and here's why if you think about it if you do what exactly what happened here the issue had become in the prosecution undulations whether there was an deletions they represented to the patent examiner during the prosecution of the parent that nothing in the ark undulations ok then they amended all the claims to add one relation except for one irrelevant claim on by mehta and after they did that they relied on that fact to distinguish the art the examiner was citing and then they got the pattern allowed and after they did that and after they relied on that when they were sitting on the one reference the case there's a memo in the record in which the thing they want to talk about the only reason the prosecution they need claims in the new case now that are going to be allowable over heels to and then they put in with sixty references they just put in those days and they never tell the examiner that hey here's the one that relates to underlings they don't go back and tell him what the issue even was and that's why you can do if you think about it if you could undermine the docket completely to do that when your discussion there you just sort of walked over the other portion of the inexorable conduct which we asked the other counsel about which is i mean you said i think they can just sit on this letter in the purposely put their head and saying and what is that referring to that's referring to the fact that at best they had this reference they had seen it it was called to their attention it was told they were told it was material to the issue of the moment that they did she didn't find them of not credible and there's no conclusion that they read the search report so they read the letter that's the only thing we know correct so why does what's in the letter lead her to conclude th purposely put their head in the sink not going any further i think you're on your own or two things first of all i think they did read about the how do we know better because testified it was his practice to read them he read them all he said that well  i'm reading from forty six forty eight of the appendix and he says i have no recollection of looking at anything except to grow i have no recollection at that time and it makes that you strange statement she seems inconsistent with that i looked at them all but then he follows up after questioning i have a recollection that i was completely unaware of the hoops that patent until about april of ninety eight absent at least of finding by the trial judge that he actually did the truth of the matter was that he's not telling the truth when he says he doesn't have a recollection he didn't read them in ninety five but he didn't see them and told ninety eight how can we not but soon that he was aware of them based on this evidence and the absence of a finding the only finding on this is her finding as far as i can tell that the shell in roseburg testified they didn't look at the p they're alone they're under a duty to disclose that well that's a different question from whether they did whether there was actual notice right i mean once you cross that line then you're into the should have known duty of inquiry etc which is a different kettle of fish i'm what i'm looking for is where it is that you find the basis for saying that there was knowledge of the hill stead pattern as of even though they knew and were told that this went right to the only issue that was key in the prosecution and even though you can do it now i agree with testimonies ambiguous but he does say this practice to go through look at records is look at the knowledge do you think the impute knowledge that they had actually read their health that pattern or impute knowledge that they at least appreciated that it was somehow relevant immaterial i think she did both your honor and she also  in this words back that to the extent that they didn't they were purposefully putting their head in the sand they can't do that when you get when the only issue in the prosecution is whether or not this has  extent that they did not do what where they putting their head and saying that they did not look at the hill stood passionately right from their know when they received it and it was paul to their attention is the only one that went right to the issue on to her other conclusion which says that they knew or should have known about the materiality what is the predicate for finding that they knew or should have known materiality is it step two once she impute knowledge that they read h l we don't have any basis for concluding that but they're certainly not a finding to that effect and you say in your brief there's a teaching implicitly found that i don't see an implicit blind  but there isn't it's binding now i think the finding is that that this these circumstances met this rifle level of material intent and they deliberately put their head in the sea and under these circumstances when you realise it's the most highly material thing you could have they receive it and right at the time they're prosecuting on it and they go and stick it to the pilots of doing what they sort of and then they later after they have a memo that says the key issue we need to get planes that distinguish those that that mammals in the record then they go and they simply put it in with sixty other references and they don't play word about delays and or the issue they don't do anything at all patent but just based on the letter or the search report we say that just reading the letter right just reading the letter in the search report he should have known even if he never turned the next page and look that and his knowledge and so forth well i think they both with their head in the sand you know i think that's clear but she heard extensive testimony from from dr pushout and that testimony in clearly on the situation in which it was clear he was giving false testimony he'd previously given false testimony to cut out prior investors that was the conclusion of three hours of testimony that she heard that's why i think it was clear that that's when she was deceive what do you think when with respect to the question of head in the sand liability for an equitable conduct what do you think are the best cases there's another case that looks i just want to say one word on the infringement issue because my time is running out right now and the been isn't the difference the judge didn't try to change the construction here they tried to change the construction there was no question he cited this clearly in the brief what crest crest and trough were marking curves that was understood that was always understood not only that remember the definition requires rising and falling in ways they had absolutely no evidence of waves plural but the instruction that the judge gave to the jury was the one that you requested correct correct i did say waves plural your argument no evidence of that she was correct ok the way they got the held that nondisclosure and patent they will take patent being where a reference was in fact disclosed the one case that you mention this fox and fox that doesn't describe the facts and fox and fox there was a continuing nondisclosure continuing non disclosure persisted through all the patents the relevant reference was never disclosed and the court was never confronted with the issue that this court faces in this case the to be from remembering correctly and considerably narrow the scope of that defect and made clear that it does not have the broad input that boston scientific would give it to the one other fact that i would mention you read on the other issue that i'd like to address was the questions that if you make an effort to square the two cases you can actually resolve any inconsistency in one of two ways one of which is not favorable  but i think not altogether out of the law if the broad reading of pharmacy is correct that it would seem to me that there are essentially no more and computer knowledge and one of the things that the differentiates this case from other inequitable conduct cases and in i think a fairly significant what is that we were trying to con approach we opened up the books we disclosed all the communications between doctor for showing  attorneys and in other cases where there's that come to disclosure what you find is that the withheld reference to support a finding to be turned is in the forefront of people's minds think people are thinking about it and that's what you see in cases