all next our scientific versus r j reynolds you feel two thousand and seven data fourteen forty eight mr phillips good morning welcome t rather substantial conspiracy among four white reputable law firms and in making that determination it was very critical to his analysis of th subsequently the district judge also says the court finds that store the head start or not prevent it contact we don't know no one report the matter what are communicated his knowledge of all of this information so there is this there is this finding or at least statement and nervousness various conduct in the relationship between these particles and you can your view is that there's no direct evidence to support either of heine not only no direct evidence to support them but there is categorical and uncontested evidence that that finding and we spoke about the case and they sent us the files and as we all know inside of those files was the precise letter the burton letter that was allegedly the source of the concerns here so that this entire analysis predicated on the assumption that there is and i guess i'm wondering about that if you put aside the peel reference and i have another question about that but put aside the pill reference for a moment if i read the record there were no numbers that were given perspective of the ordinary prosecuting lawyer who's looking at this problem you've got to feel application in mind is readily revealed it shows numbers and the sort of wanted to write which again from our perspective is is obviously lower than what you get in the ordinary course but nowhere near the levels you get under the conventions there are issues but just for the side feel for one moment isn't it isn't it hard you say that if you put aside the th three very experienced very plausible lawyers look at that letter specifically in mind to do it disclose it now after the check has been written that they were taken off the table and all three of them came to exactly the same conclusion which is not it's not reasonable under the circumstances to disclose it because it's unreliable it's cumulative and candidly it's the music is less than twenty four hours to liberation from a professor who's just sort of explaining general the what's going on is kind of the randomness to this whole discussion of chinese tobacco nobody knows what chinese tobacco means in this particular part i suppose you could argue that it would have been a mis step to give such misleading  loop curing process but but the but the pill reference is not prior or if i understand correctly the six forty nine impact right right became posters wouldn't that affect the put in front of the exam you're looking at essentially the same set of specifications and the and largely the same claims and evaluated against this particular data it makes no difference to his analysis which is to my mom tells you precisely how material the burden sure but that seems to be the issue but now you're saying that isn't the issue so i'm confused it is the issue the issue is was it was it was but your real information is higher in syria it was withheld and not disclosed was there deceptive intent you can't get specifically what he does say that the information withheld was higher than that here it was you talk about the prosecution disclosure about reduced level yes because he says that there is no disclosure and i think to the extent that he says the specification was no disclosure to the patent office he understood that the argument about the specification they're saying that they said there was a somewhat reduced it was testimony from that of the technical expert whose testimony was not contradicted or challenged by any other technical expert dr ryan explain this it's very clear with a somewhat reduced you have to read the whole paragraph they left out part of the quote in their opening their witnesses suggest that the reason for the provisional application was well what we have said in these cases that one of the important issues is whether there's a good faith explanation for non disclosure if i understand correctly one of the things that the said  material or not right now the question is they had an explanation that they said it wasn't material because they thought i was killing them and i would have thought the judge garbus little progress that explanation and found that it was use as a springboard to get to the point that he doesn't think that there was that independent judgment that was exercised he doesn't think it was good faith it was exercise and he doesn't find the explanation was able and i think from where does he say it that was not what you seem to be saying that even though he didn't say it i think you put it in terms of in black and white that his findings implicitly address and in your materiality well i think that all discussion about materiality where he goes right to the point that there was no disclosure of the ability of prior art to achieve loti is genetics he makes it important that he makes  discussion you're not helping me i want you to point me to text in the opinion that you say can only be interpreted as rejecting the defense that it wasn't material and used in the united states and that's not really addressing the good faith story when they didn't disclose it the question is whether a reasonable person under the circumstances could have believed that reasonably believed that this stuff was not material because it was kimmel well and the problem is as i see it that he doesn't really tell us that he's examined disclose prior art and fact that there are even systems see in terms of the way to tell that this situation versus what they professed to say was completely inconsistent with complying with the duty of candor he talks about that at the bottom of a forty four and a forty five he talks about the david cassidy point which references the m v p if you're going to take a decision you know you have this right in front of you with black and white and you're going to make a judgment not to find the requisite level of intent without implicating attorneys in other words assume for the moment that one were to come to the conclusion that the attorneys in this case starting with the sho firm through the banner from the crawl from acted in good faith does that take away necessarily the determination of intent that is needed to support his opinion the intended issue is focused on it seems to me and please correct me if i'm wrong it seems to be very much focused on this conspiracy that began with the transfer of the documents from one firm to the other then what happened after there there's a suggestion that well maybe the document was maybe wasn't in the file then it goes on to talk about what the lawyers did not do  after the may june two thousand and two period so it seems to me that the intent finding here is very much dependent on the conduct of the attorneys so that if one is to say that the attorneys did not are if you will carrying forward this scheme or design or whatever you want to call it and so that if one one says ok assuming that that you know whatever mr mr williams was or wasn't thinking the attorneys came to the conclusion in good faith if one were to conclude that that there was no reason to turn this document over then aren't we left with a hole in the intent finding well i don't think so because  nondisclosure the burton letter itself he he had an interview with the examiner during the prosecution of the six forty nine he was face to face with the examiner he did not tell the examiner about the burton letter or any of the he didn't testify and i don't think that's right ok now what about mr della don't want to he did testify right right and and he was the fired lawyer right yes right so what did he say that he that he didn't get to the point of making a decision about that or what did he write his testimony was he never got to the point where he was all this is all the time whether it should be disclosed or not it was a concern there's an exhibit he writes you know reason that mr belin though was terminated or replaced was in a sense to bury so there was he testified that he told the star executives about his concern before the time when he was terminated right and then this is a lingering complain about with not the schools so that to prove been proven proven reprove eighteen different ways that it wasn't a school it doesn't address the heart of the case right a lot of cases why not what explanation was given and what was the evidence to that that explanation was not reasonable or or fabricated or something like it was not reasonable i mean should have already said evidence well the evidence starts at the beginning when the first thing they do is put into their provisional application they say the prior case where good faith explanation is so central to the outcome well this doesn't always asked and then he was fired before he got to the point but i think judge garbus questions is credibility rightfully so when he writes in high and and doesn't get to the bottom of it when you've got a letter that says love but mr doesn't know then rewrite the patent application instead of being upfront and saying we made a mistake judge garbage talk about it danced around i never explained why they replaced the original statement that said time it took it out and said you know that the prior art doesn't appreciate and then we go to mr regards involvement you know nobody could argue about by the time this got to the end that everybody knew about the record to make any explanation as to why it wasn't disclosed there's no memo to the file anything of that sort he talked about you know the incentive they had was a concern that if they submitted this and with a big red flag to the explanations given for that in the testimony one was that you know someone was upset about the way a particular attorney act it in his contact with an examiner and the second point was that a senior attorney at this you grew that he never really said i disbelieve those explanations but there was sort of this leitmotif or innuendo or you got the sense of the felt that they were correct but i didn't see him saying i disbelieve those doesn't specifically say i disbelieve those specific explanations but he does talk about that he didn't find credible the explanation and that there was a replacement and we says the replacement was done to quarantine or to insulate or to engineer the separation he's making positive direct express findings that i think are expressed repudiation of the story that we're hearing from star just garbles talk about quarantining we're saying quarantining the banner right but i think  darkest clearly addressed head on this was a major part of the trial clearly addressed head on what happened with the burton letter and what happened with the shift in the change in firms and you clearly assess the credibility of the witnesses and he walked through the story and he basically said i don't believe what they're saying and the fact of the matter is that burton letter did disappear and the letter did disappear for a number of years and it was only would rannells uncovered it in third party discovery does it come up and i think you have to ask yourself what better evidence could there be of intent when the letter is you know there right in front and center and it's not disclosed and the story that the judge guards talked about you know that he didn't buy the argument that he talks about this with credibility findings he did not buy the argument at all that well that would have been too costly or it might have caused a way i mean it was an ongoing war suit it was early going on there to serve the first of the two patents asserting the second patent would have changed testified he had a chance to to observe their credibility he said this was not reasonable this was not plausible this was not the fake and you know you can argue about maybe what happened to get it but at the end when it's all there no disclosure and he went through the reasons he talked about you know i'm not going to repeat myself but he had a reasonable basis to reach the result he did and that doesn't mean that they haven't come forward with another story but he had a chance to look these people in the eye to observe them and he was concerned as to parade or wrote a letter to the industry basically saying that we're going to try to cover what he was termed rudimentary heat exchangers which was the very same prior art that we're talking about it was a letter from mr mcmillan now is he the person who sent the e mail i guess we're in this may june of zero two timeframe where i guess mr coe was involved in this question as to whether the the the documents of the burton letters going to be  in what way and if may well but in what way how does that suggest some kind of a conspiratorial intent or an improper intent with respect to me saying look this is been brought to our attention you a decision we're going to disclose this whatever you know the only record is mr mcmillan writes this e mail says i want you to decide and then after that no disclosure and the only explanation that was ever offered to the notice closure is the cost in the late it would have been associated with that and yet far as the civically details his rejection of that that it wasn't plausible it was inconsistent with that in a closed case we're going to make a disclosure that was it seems to me necessarily transferred look this is a document that was front and center on mr dove and those table and then there's a new firm that comes and mr regard takes over the files and the burton letter disappears they were intermediate it was another firm that was brought in there was out of his decision he pointed out because he has to look at the file at the trial the testimony of mr regarded bit well wouldn't you know he was looking at the section of the file out at the prior art and if he wasn't looking at the section in the file that had the correspondence it the problem with that which i think just garbage struggled with is if it had been the correspondence part of the file it would have been two holes punched in at the time it when the document came out of the file there we law firms that changing from homes that there was a disappearance of the letter and that the judge garbus was reasonable to infer that and if there was any doubt about that when you get to the end of the day of reckoning so to speak with that with that letter shows up only because r of any reasons why disclose it and judge garbus you know that the cost of the delay arguments he rejected it he talks about it he rejected it it was not credible it was not plausible he makes a comment he talks about the incentives i mean pardon he did obviously call burton asked him to send a letter and actually had never seen the lottery the first time he saw it was when he was being deposed so the notion that somehow there's any evidence out there that he either appreciated the importance of his letter or act and i tested it and so he said and done this or well this doesn't look like anything that's worth revealing under those circumstances and i think forwarding pamphile both the professional and the other application and then there was a transition over the suggestion that somehow that letter didn't go as to their to their lawyer because he's the one that has to make the judgment on the question of materiality they change lawyers that letter goes over in the file there's no question that it's exactly the same color as it was in the super file so you know it was it was sent over get this letter the truth is they would have gotten this letter from the from the bammer files if they'd asked for the provisional application because it won't come up with that and went to bed a big deal that just happens the week before that they did it up with this third party process so they get it but the fundamental point here is you know he said the district just spirals intent he sprinkles language and but he doesn't make the rigorous kinds of findings it seems to me you have to make a case like this when you're going to act when it when the burden is to show by clear and convincing evidence that you have intended to deceive the p t o are we are withholding material information minima we were entitled to have the good faith explanations that were put forward by these law firms carefully scrutinized and some kind of refining with respect to their credibility before you end up writing an opinion that candidly whether it's them for their conduct in this particular case when it does and i go back to where i started the central that kind of outcome exceeding ten double spaced pages on the factual got particularly with regard to the position and activities of dumb one and the others have been mentioned here so we can trace the chain of what did each of these people say and where do we find it in the record because obviously great interest on our part in understanding exactly what the evidence was so we can compare the evidence the actual words of