thirteen thirty two clocks spring against rap and as i understand it your claim that there was an experimental use exception here correct and this is that the only reason the so so why it's why was this one nine hundred eighty nine demonstration experimental use what needed an experimental use what was the object of the demonstration the object of the demonstration was to show how quickly and easily this resonant cased of fibers of glass could be wrapped around the pipe while it was on the under operating two issues one was the invention in the plane in vision is to repair a pipe three per pipe that has surface corrosion surface effects but but in describing this experiment to the p t o that was not part of the description that it was designed to test the long one door ability of the repeater it was described to the p t o is merely designed to show the ease with which the repair could be made to potential customers if that's the if that was the reason one that was described of p t o how could this be an experimental  experimental and that once it's wrapped then it has to stay wrapped for a period of time and has to sustain pressure what it says on twenty four fifty three is the purpose of this demonstration apparently was merely to show in a very general way how cock spoiling millions are applied to a pipeline it doesn't say anything about testing well that's correct and that's what i said it was just show it was just showing how to apply the the bands but let me say it differently was not complete that the two things were what they did was just didn't stray how easy it is to route so they didn't even put it on the pipe that had corrosion on it that's they just sent last year by cutting them off of it they noted in the record that was given to the examiner that had no corrosion and in them or to it it was a new invention of engine was repair and in in they said in their final report about that that it's going to have to sit here for a few years and there's going to be further research and development and testing until we experimental use it sounds like an argument that there wasn't a sale of the complete invention that is a demonstration of the complete invention so that the on sale bar public use bar was and that's not a question of whether the invention was ready for patenting it's a question of what the public use was and it strikes me that what you're saying is that this particular hype didn't have a  wasn't corroded so it wasn't a demonstration of all aspects all the limitations of the of the point right there is correct and plus the fact it was just i submit it was experimental in the boils down to the question of whether the stem inspiration included all the claim limitations and there are you know unfortunately this issue really hasn't been briefed their earliest cases that suggest that maybe the limitations don't all have to be demonstrated if the limitations would be obvious so many folk were but i understand your position and let me ask you a question on another issue and your response now this is before the magistrate judge you filed a response to the motion for summary judgment i don't know that it's in the joint appendix but it's june fourteenth two thousand and seven that ring a bell right and this was this is a think about an eight page or spots in that response you do not argue that the dependent claims were not rendered obvious you focus on the i want to one other question in your response to the false advertising issue but again before the magistrate you argued i believe that the two statements in question one about the metallic nation the other about the diamond block system were misleading which is a term of art and in this area particularly in the fifth circuit where the difference between misleading and false has real consequences for your burden of proof but it wasn't till you get to the district court that you say faults as opposed to misleading why it with respect to that issue have you not waved the argument that the statements were fa period that lasted two and a half hours that evidence of copying and evidence of commercial success was presented to the magistrate judge it wasn't presented for the purpose of showing non obvious one issue that was presented we had a summary judgment of infringement been doing and so we argue there are copying there infringing and then the defendants had a motion for summary judgment inability to prove damages latches and inability to prove damages and so we presented evidence of the commercial success and of damages some time on with mr headley and i would refer the court in the records to one of the documents that the district relied on there are three that the district judge relied on in her decision that there may have been fact issue on experimentation was going around the fact that this demonstration didn't involve a corroded pipe i was actually just but that's the question i mean one of those documents the one that was late submitted is the so called twenty eight page report that clockspring submitted in on page eight twenty four zero three it says pacifically this is describing the same installation various forms of corrosion were evidence including oxidation on the top twenty four o seven on top of the pipe in the corroded areas before it was then wrapped and i would say your honor that probably most important thing is that a law that he said material in the us if use of the trouble is really using it he said throughout the said materials is used in two different ways one is the putty road goes into the divots for lack of a better term and the other is the he said material that is either brushed or sprayed onto the wrap correctly now is in this case that was not submitted to the patent office which is that your right not a whore slash zero zero seven two which begins up at a thirteen seventy two and proceeds to fourteen eighty nine and i would i'm confused i thought you said twenty four zero seven shows that this particular pipe in the demonstration was corroded it does are on and that another page in that same report showed that the honey was applied to that paragraph thirty to ninety two but you know but even if they can out said to be disputing it these documents demonstrate that it was the same the same did you have an expert witness testify that the demonstration satisfied all the plan limitation we did not  there was never any expert put forth by the plaintiff and therefore we never had any rebuttal well but your move for summary judgment correct we didn't think it was necessary we felt that the evidence in the record already was more than clear and convincing for the same thing isn't any testimony here about motivation to combine the five twenty four patent with wrapping you know one cured state i think our position or honor is that it's more than just the five twenty four pa there are about five or six different patents that all talk about images or you want to combine these patents the question is was there a motivation to combine in you don't have any testimony that there was a motivation to mine you're asking us to read the whether that's the point you're you're you're trying to combine reference and the and what your is you know has to do is to sit here on appeal as a trier of fact and reach a conclusion that it would have been obvious   one to be motivated to combine the these two references and you know we're not experts and feel and you're asking you're asking a magistrate judge in the district or who are sitting to be your expert essentially and to make those inferences without any expert testimony that is correct however i would submit to the court that the standard here is whether this court can come to a firm and and definite conviction is the right standard for reviewing the summary judgment underlying fact will the terminations oh not on summary judgment that's after a bench trial but this is a summary judgment proceeding we have to look for a disputed issue of material fact it's an entirely it's the clear air has nothing to do with the in crowds i was puzzled that your references in your brief to clear arab dissidents to my knowledge no place and there hasn't been a trial and isn't it the case that a trier of fact looking at this could reach a conclusion that maybe there wasn't a motivation to combine these but in this instance your honor no i would if you look at her and i have pages twenty three fifty two at twenty three forty six through twenty three forty eight and continuing on the twenty three forty nine is the discussion of the exchange the key exchange between the inventors and the process in the us having sounder another point that i would say that was undisputed below is that the only novel aspect of the three zero seven patent according inventors was this step of wrapping while the filler was still on cured and i think that's another reason why the really isn't a fact issue here they can see that that is the only novel aspect of your seven pat concede that they conceded that by not arguing against it below and and if you go back to mr schmitz decoration to the patent office one of the inventors basically says in an effort to get the at have two possible permutations to do this method either wrapping with it had previously been for which i guess we now have to look at the transcript of the hearing before the magistrate judge because none of this was raised in the plaintiff's objection to summary judgment before the magistrate judge so presumably everything that was raised was the trial judge the district judge had the only basis on which he could deny summary judgment was to find a possible fact issue with respect to experimentation versus versus commercial use and she three documents that she relies upon for that for that decision and the first is the one i mentioned the very beginning which is the so called twenty eight page report that document in and of itself demonstrates that this was a commercial demonstration not a test that documents  twenty three ninety one states the purpose of the demonstration paragraph four is to i make clockspring application process by experienced and inexperienced crews in a field environment available for observation by and handle eastern representatives and guests and i would submit to the court that if and c f is in a position to demonstrate this method to prospective customers then it is the experimental you stock in what we've said in honeywell in other cases as you can be even though it's ready for pending it can still still have an experimental use under certain circumstances if you're showing that the  prepaid number of different perspective customers from a variety of different gas transmission companies and it is clear from these documents that this was to basically look for prospective contracts from these individuals they were demonstrating this meant that they had non and c f attendees of that demonstration do their own installation so this from this document it's clear that it was not an experiment and really there's nothing in this document or anything that has been cited in the record that suggests it was an experiment in fact the other two documents that the district judge cited in her decision are two additional eighty on installation it only says that after nine years some of the materials that were used in a variety of installations including the quote texas one held up well over time there's nothing in that document that suggests either for martial method about a month or two months after the quote texas demonstration i can also point the court back to the twenty eight document where a couple of comments by the attendees there were recorded and one of those comments was you know this is a terrific product if it does what it's supposed to do run if which is not on the shelf so to speak for some time a take right when do you you have any indication in the record as to w this product first became available for or purchased well i think we need to distinguish between the product which is the materials themselves method and then when the method became available through clock time unless you had a follow up on that i didn't mean to cut you off the only other point i would say is that another comment made by someone at the at the but the demonstration was how can i get some are going to get some product that doesn't allow that  trier determining from all of these pieces of evidence that you referred to statements comments and cetera and having to make a factual determination as to whether or not  overwhelming evidence on the one hand to really notice disputed evidence on there and there's nothing in any of the documents o'clock sprint cited that proves or even suggests that this was a experiment of use not to have not and i think that's how the magistrate judge got comfortable that in fact this as if it references each of the elements the limitations of claim one with the least gross but it's a letter publication prior to the critical day right if it was published outside of the private communication between these two as the that's my question with me i don't have a date your honor i simply when it was well known it isn't really can't make use of it then i think you can and here's why because when we submitted it as part of our motion for summary judgment they never disputed it in terms of being a good reference that could be used they simply attempted like the report that mentioned earlier they attempted to  think your honor just two points would there were a law or reports well in short summary report was use extensively in quoted by the defendants that was a summary of a short document summary the two thousand four hundred three that's like a sixty page document that goes step by step hour by hour and as a point of my grief nowhere in that very thorough step by step description of what actually happened in court all this it talk about in the surface cavities or in the film material going in the service cavities which are to limitations of the independent cloning so where did all that was written sometime subsequent it was a summary of this other g r r report that was written at the time and was a much more federal law only the report and that i'm just saying that very thorough along the script it didn't talk about any kind of surface cavities or film material being put in the service cabinet did you argue that before the magistrate judge that that was a missing element in this  she had had that back to may have been submitted by the defendants long before it was for the record but it it is she did have that but it was a balloon with records that were in the fall  that it i'm not in fact i guess it may not be with my fitness and with this court i said there's use fact issues this to what what was actually so that the way that's written it's not clear whether that was a filler material and whether it was something to something get what it i can't remember right now to have it for me but there are some issue with that summary it's not it's not near as clear as pretty sure that the total letter makes it clear on the second page that that was dealing with split steel sleaze it's true but but the it certainly has the soft plenty which is