with now your argument in your own number two thousand and six one three eight the portion of the code that contradicts your statements about wagner and the prior art in the prosecution history where the portions of your code that contradict the next statement about trade st portions that were not call you clearly have in your source code portions that were not called and not call a bull it seems but rather what we would call a can code and so my question to you is are the portions of that la code that work all in the commercial use of the product more than a year before the filing date are those the portions that pertain to why you should have disclosed this to the p t o your honor at the first part of the question i was relevant to the rejection in light of wagner that you made these responses statements that there's nothing in the prior art that shows trace states ip wagner doesn't disclose them you know there's nothing elsewhere as your own system did so i'm trying to figure out you argue very clearly in the brief that there are portions of the code in our call that aren't being used or so what i'm trying to figure out is are those the portions that are relevant to the trade state because it seems to me that the portions are relevant to the new rules application but that the trade states system was so complicated traders simply didn't want to do your system all so my question why then have you not argued our line of cases that talk about latent code and in particular we have fantasy football with that all these cases that talk about if pete a piece of software has a section of code which is not capable of being run not being run the net software does not infringe well if it doesn't infringe it doesn't anticipate so why are you arguing you never had to disclose this to us to begin with just because the p t o to begin with that it's not prior art with regard to the portions of the code that were run is only prior art with regard to portions that were why is that argument no where in here testimony of the testing that was done here with the noncommercial marma because it was tested in a commercial environment you've got a problem because even if it works permanently mutes in that context it probably would have to be was there is no distinction between tree capture and or a tree so there i think the reason why there are might not follow the statement that the testing of six to eighteen transactions per second was no argues that the automated trading capability was never used and and i'm a little confused as to whether when you say it was never used it's never used simply because it was it was not seen to be practical it wasn't effective was insufficient for that it wasn't used because it was disabled or not enabled for it was simply resident as has sub routines that were that somebody entering the commands to invoke that code with a succeeded is poking that but there is no testimony that was done again because the was in public use or not to take a hypothetical of for example a claim covering an automobile with an air conditioning system and you have  automobiles that were built with air conditioners and they were they were sent to potential dealers and they all the dealers happen to be located in maine and it was the middle of the winter and nobody ever turned the air conditioner on  have a public knowledge situation and i don't think you have a publicist situation so in my understanding from a technology standpoint the code would not have to be altered in order to run the system it just would have had to of been commands entered in the keyboard by the user that would have called up the supper team i think it's correct that users in those commercial rooms could hold up those routines whether the system was actually  marginalia by the attorney was turned over was there any objection with respect to the disclosure of that particular document or was that just turned over pursuant to the to the general direction to turn over documents having to do with  super system or for that particular document was reviewed and camera by the district court to specifically ordered produce did you ever work argue to the district court that it should be produced because it didn't relate to the specific lea with regard to the technology are those sub routines that are called or not culpable are those the ones relevant to the traces the record shows that the training states were use and he says whether used or not they were part of the system that was operating in two cantor fitzgerald straight ignorance and that's what really concerns me is that in two separate places in his opinion he specifically doesn't find that they were in fact  but said they were part of a system whether used or not and i just you know along that fantasy football a lot of cases it seems to matter whether they were capable of being called or not capable of being called to the code require modification for them to be human or were they there material prior art it would have to have been used for commercial purposes right that's what right this is in was for commercial purposes well the new system was used for commercial purposes in so far as recording trade but but there seems to be no evidence that was used for commercial purposes in so far as that provided the automated trading correct well there are sure that's exactly clear from the record i decided the testimony specifically that it wasn't used for automated trading yes so if the question is automated trading it wasn't used there there's no evidence that was used for automated trading that's true but you're claiming trading states with all three you can have on some statements in the record and particular some declarations made by the inventors the one that seems to get most attention is paragraph twenty of the b joy full declaration  that paragraph says it did not occur to me to disclose the super system to the patent office in connection with the application that issued as a ninety seven for patent because it did not occur to me that the super system which was an internal c f s system i did not believe was used successfully could be considered to be prior art to that application and it goes on every side a few other things understand i could understand you you just said a moment ago you know with the inventor was told by counsel that you have to make a statement or you have to say something in order to to purge the record here that's fine but i don't see anything any place either in this declaration or anyplace else to suggest that that mr paul was told by counsel to say this i think the judge found that there was a something's prior art or not it's fair to infer that that was done with consultation with counsel and so i don't i don't know where you draw the line well i think that's the district just to deal based on fact in the situation what the other tracks were that might have suggested to judge jordan that this statement seemingly innocent as it may be somehow implicated some sort of brasil or type of conduct different than a declaration filed with an application that says i'm aware of the obligation to submit material information i think it was a fair occasion to judge to many that this was done with the advice of counsel especially when you can see it really comes down to a question of very little legal question perhaps as to whether or not this is the most far because if this is this it becomes more than a simple discovery matter because the wa privilege resulted in certain documents including the document judge dyke referred to earlier with a marginal note about the fifth beef up this fact that not only implicated the inequitable conduct issue but also i think was significant with respect to written description and as i understood it if if if this ruling and the waiver was improper that it certainly seemed to me to have a serious prejudicial effect with respect to the written description will well let's just address that there is a reverence and a lot of things as well but that's not the test when evidence is  the question is not whether there's other evidence that would support it it's whether the the prejudicial evidence the erroneous lee admitted evidence could have had an impact on the result you certainly have to agree that this marginalia document could have been jordan was right then this waiver of privilege issue isn't so relevant if it doesn't have to be read because while the waiver of privilege issue may go to written description if we were to decide on an equitable conduct we don't have to reach that issue at all and even if there was a name in appropriate waiver it wouldn't affect it inequitable that's true ok and my the next question to you was just about this waiver particularly at these questions were asked was occurring to me that i don't know i think that in this case were we to agree that there was a waiver we have to say based on your logic and tell me where i'm going wrong that there's a waiver every time you're attempting to cure an equitable conduct with an inventor declaration i  going so much into this later software was kind of my concern because while you removed your challenge to infringement on the basis of the parent patent judge jordan nevertheless rendered your parents hadn't done a forcible and so for guy did there with leave out the fact that he happened to work for the employer at some point in time well that's bad because it might have suggested bias on his part his part even misrepresented in things the court found that was material despite the fact that there were two other desperation that were completely unrelated in which there was no misrepresentation or omission at all i mean that seems far less offensive than what the gentleman did in this case one of the  can i can ask you know it isn't it right didn't you see whip case there were no misstatements at all in any of the two declarations that were filed but rather the court held that the party in that case just didn't correct the examiners apparent