net cases twenty twelve twelve thirty eight adam and associates versus down computer liu yes more in your honor me through the court hearing kind of a strange procedural position in that we had a full trial and between the rendering of the jury verdict and the actual entry of judgment almost a year later there was a settlement agreement that wiped out almost all the basis of liabilities from the half of one of my client one of the other co defendants so we have here is a situation is there any evidence left in this case this record well let me ask you about that because that was a large chunk of your brief and it was very difficult to get through in one because as i read your statements and friends statements they seemed diametrically opposed in terms of what the facts were now you're saying finally in yellow i guess you say most but not necessarily all so i think you've backed off a little bit me a position in terms of whether everything that is that the district court really didn't deal with that issue specifically did he a all i can find in the record is he made a statement saying that he was denying your game all and that he didn't think the settlement was relevant but he didn't there's no an analysis recently with at least the diametrically opposed fact that you would coming forward with or part of it i guess is i would urge and i would urge your honour's to simply look at the actual record my my opponent here has a habit of of st something is violated or infringe the plaintiff's patents in this case i'd see another supplier of super io controllers was separated out and bifurcated into a separate case and there wasn't any evidence regarding any other type of super  also i am saying i'm saying that evidence around rights was precluded by thirty five to eighty six all of that evidence if you look at the actual record evidence the evidence of testing using the i have d c d given that if it was prior to post six years of a filing suit it shouldn't be the basis of any action however the jury apparently got confused about this because they still found that was evidence of infringement even though it's clearly excluded by verdict the third type of evidence is that their expert claims that well there's all the certification testing that went on and that therefore they must have tested for the specific issue discovered by dr adams founds the problem with that is that there's no evidence in the record that any of that certification testing ever deals with the under run over on air that's covered by dr own standards and when dr adams expert was pressed on that point a trial he said well they must test for it because f c c testing for you on that why isn't it circumstantial evidence that there's no there's no circumstantial evidence that's in a patent application is actual testing that's not a venture one that's not with the pattern that patients actually about if you look at in the record what the application was talking about that's again a misnomer that that the plaintiff consistently tried to put up in the district court judge bought and i'm going to the final bit of evidence foliation issue the judge moore asked about that was something that the seventy to be in by doing that he applied the wrong standard to begin with so you you can immediately eliminate the sanction in this case your honor because the district court judge simply decided to impose his own judgment for that matter straight judge when he was not what evidence is actually in the record and if you look it was in the record there is nothing on the record that could support this particular verdict as a matter of lawyers nothing and as for the very thing in addition to which as well it talked about thirty six which gives the authority for the magistrate judge to decide this once the magistrate judge who had looked at all the evidence and decided in his july order that no sanction was appropriate that there wasn't actually any evidence despite what he had found a year earlier in his prior order after looking at all the evidence that has been to do stream the case he reached the conclusion that no sanction was appropriate the judge of that point the district court judge is only allowed to review that for purposes of clear  may please the court gregory phillips i think one thing that's not in the brief that ought to be made clear is that judge stuart waited and tell the end of the trial before he entered the sanctions order until he heard the atheist witnesses testify at trial and it was on the day of the jury instruction conference that he entered the sanctions order and gave the gave us the adverse that the print pinpoint precision with which it failed to preserve only certain evidence leads to the inescapable conclusion that it spoiling the gated evidence that's what he found at the end of trial if you know only ma willful he said that because this is the conclusion the judge knew for came up with was that we would be entitled to an adverse jury instructions at the time of trial they objected to it and we objected to it as well and said that that was wrong clearly it was tell me where the district court that was clearly wrong and then wrong rightly or wrongly but then what happened was then judge stuart waited before he ruled on both sides objections and tell the last day of trial intel he could hear the aces witnesses testify at trial and he then he i'll grant he went he said remember there were two orders and this is from page two of judge stuart fuller the court finds that the march thirty two thousand and nine sanctions order so that was the first order words were judge new first said there's all this evidence is said that it failed to preserve evidence and that the pinpoint precision with which it failed to preserve only certain evidence leads to the innes capable conclusion that it's boy the ated evidence so he's saying after listening to the witnesses at trial the pinpoint precision that they are missing this testing evidence up through two thousand and five causes the district court to come to the inescapable conclusion that it's for the a good evidence but unless the was found was that the case with exceptional and that he wouldn't grandest attorney fees and costs because he'd already granted an adverse jury instruction that with the same ssion enough is the way he came down on  this is where judge you for found that we were entitled to an adverse jury instruction that plaintiff and a susi should be able to argue the issue of the missing evidence to the jury so when the two thousand and ten sanctions order the judge knew for entered he said that we were entitled to an adverse jury instruction at adverse inference and that's what judge to order saying the court agreed with the two thousand and ten sanctions order finding the plaintiff should be able to  the original source code for the test program they were trying to patent in the us p t o and the reasons that it should i would have expected to have a will all will be in evidence adams can argue to the jury that ac should have the original source hard to understand exactly what they mean as a result and maybe because you offer skated to such a degree forum quite frankly but nonetheless i don't see how you could possibly say that  naprosyn no i understand that and then in the magistrate judge said you're going to be able to argue all this to the jury we then object to judge new for second order as does a souse we fully brief that judge store reserves ruling on that up until the last day of trial after he can hear the atheist witnesses testify and on the last day of trial right before the jury instruction conference he then says the court also agrees with the two thousand and ten sanctions order finding the plaintiff in a few should be able to argue the issue of missing evidence to the jury he says the basis for the aid of the evidence whatever that means whether it's first order where we said that all this evidence is missing it's fully supported by the record and then he said he disagrees with the two thousand and again but i'm going to give you an adverse jury instruction so i will agree with you judge stewart was not as articulate as he should have been in in the two thousand and can order but i think that's important point is that the the other point that i think is really important is it end it is crystal clear if you read the sam yang patent application that was in front of the u s p t o that it's a detector patent that he it's not only for the solving of this issue but for the detecting of this and if you look at the final office action which is we are you on the issue now whether or not there was something left for the jury to decide i'm talking about mr lim you statement that the the a sandy and catnap location was didn't have anything to do with the test program and remember the old and it takes us to the other issue right right yes let's assume we're going we're right complaining that there was a problem with  testing our arguments the jury was they were testing in the united states but they destroyed all the evidence they spoil it all that evidence and the way you can determine they were tested in the u s is to stand yang with continuing to try to do patent his test program with the u s p t o up to two thousand and five and we also presented evidence and this is very important at testing other then on on when volunteers we produce evidence presented evidence the same but unfortunately used up at the time trial people still use f b c's today that on your be cagey machines when you go to a doctor and what not in are the did the testimony that our experts presented was this have thing continues all the way up through i think the language with the pinpoint precision makes clear that he did think it was willful and that's why he granted if it an adverse inference instruction on the last day of trial it was not just for the source code but it was for the evident under a related question i mean were the test report not not the test report that they were referring to but the test reports that they destroyed had all of that in there and dr kraft testified that they did not produce the test results that all of the e mail said existed relating to the testing for the f t c and that was on the joint appendix forty six twenty six and joint appendix forty down let me answer the question it's remembered they found the jury found for us on the old two patent which with the testing patent it in fine for us on the basis was importing infringing chips and so the wind on settlement if you read it carefully it only relates to the importation and use of wind on ships it doesn't even cover a sis's testing of when buying chips that's not that's not in there and so the old two patent a jury found that ace is in a c i had tested not only when buying chips but via chips f m s he chips national semiconductor chips and all of them and so  joint appendix seventy one eighty one which is exhibit one ninety four talks about testing of s m s c chips and trial exhibit seventy eight which is a joint appendix seventy three zero six through zero eight talks about the you gotta be kidding you're going to say that when you're testing to see if it works properly you're not using it of course you're using it i keep from bridgman purposes we have lots of infringement cases that say when you test something you're using it under the infringement law and you've got a license that covers any use of the wind but right but that doesn't cover the testing that was never i hear what you're saying but even if even if you're right it still doesn't deal with the evidence that we presented on f m s c s m c via in the gateway case says you cannot rely on third hand information and you're going to have to wait until you get more information he then produces documents to us in case that had been produced to him in camera on september the fifteenth of two thousand and four here's the problem i'm having on the statute of limitations the case law says does not that doubts or questions about defendants actions put them on notice ramifications and the potential for that direct directed towards when bon but not towards a says well and then we have the magistrate judge four months later saying you can't use you can't use the evidence that you have so far because it's unreliable it's thirty hand information you can't rely on that and it's not until a couple months later they give them produces the y c wound test report on september the fifteenth of two thousand and four  start even having it including about a souse and then we send a letter to atheists general counsel saying what about this and they come back and say to us oh we were not kind of the use we respect intellectual property right so at some are judged you have to draw all the inferences of that e mail in our favor and our point is that when you look at that e mail in the context of what was going on in two thousand and four not ten years later at trial you're still issues the fact that the jury needs t and we wouldn't want to be threatened with a rule eleven sanctions for filing a complaint until we had evidence and we were seeing the parties tried to sanction us twice in this case for doing similar things so dealt with issues relating to i did as i recall pain and suffering from an implant in there which is different from the utah case law that says you have to have either knowledge or constructive knowledge just what the statute says mentions ace's correct but remember four months later judge knew first said in dealing with the same issue with respect to this test program all you've got a third hand information that unreliable and when the united states magistrate judge tells you court and if you read the language in those two decisions this of utah supreme court every single time this kind of circumstances come up as found with the statue of limitations has been triggered and that's a direct quote from i believe the mckinnon case your honor so discretion standard the judge in this case gave a reason the surgeon unlike some of the other surgeons gave a reason decision as to why even though he found it to be an exceptional case it was not deserving of a mortar attorney's fees and that the sanction was sufficient that sort of use discretion i don't think this court can can overturn that in this circumstance going about that but if if we sending it back they can reconsider that because it seems to me if i remember the reason he didn't the word turn these is because he said the adverse inference was yourself but what does that expert really say what he's saying is testing the says once i didn't actually look at the producer tests so i can't really tell you what they said so it's not in there it's not there and he admitted he never went to the assessment he said but the certification testing but the experts testimony has to be tied to some objective evidence and can't be grand speculation kynges all this once can i just before your time runs out of just one remaining question about the foliation if we agree with you for all the reasons get back to the district court for and do all that we say to for lack of clarity and i think i don't think there's a lot of clarity around what the judge did the judge simply said he was going to review it and he was going to review under normal basis that was wrong so the sanction is a support secret issues if you're trying to claim that it was a trick or shoot but the first click he says you know i believe that he is on record to state use the stipulated facts in the record that he ever shared his trade secrets with anybody until may have two thousand this tool was developed there is a substantial difference between suspicion of a problem with an implant in your body and this case and as it was the state of the record in two thousand and four when the e mail was written was that gateway said that when vaughn used something that they claimed they got from a souse and that's either third or fourth hand we have and then the magistrate judge say that's not reliable enough and when you use the prism of the formal writing letters saying that people are committing crimes i said based on what you think is unreliable and i don't think that e mail said there was a crime i think it says that potential theft is not a crime i'm sorry it could be referring theft of trade secrets but during the legal ramifications of potential theft we want to find out what's going on and so when you look at the other the best we can exonerate the client which is another kind of heavy handed out of turn absolutely but the standard is you have to draw all of the inferences in dr adams favor