failed to prove out of colors knowledge and it couldn't do that because caterpillar it already means finding emissions that it knew about the patent under commission regulations to one hundred and thirty one dollars that means that under that mission the pieces of evidence that are all in the record that all point to destruction and and that's that's part of the problem is that none of to be clear as not is over can spend a lot of time or effort in their briefs talking about these things the reason being is at no point because a clear ever say either no we don't have knowledge or or even and this is important that that work and have never proven or cannot prove knowledge rather the st time that argument ever  lily on the issue the problem of course is that burkett had no idea that this was even a disputed issue and just say well it's your burden of proof simply doesn't get far enough along to say that of course is the case th proof the problem part is that you can put stated this was an issue and put in a citation to its expert on the issue and then heard nothing at all about whether or not this was going to be a further issue and that itself is a violation complement soft did not put in a different claim that struction fact it conceded that the claim that the claim struction that the that the p tab eventually adopted was incorrect and so there was simply no reason for they found direct infringement with respect to the other two products the reason that the l g can to different points is not because it was legally correct on on the issue of the three hundred  issues there as there was actual testimony of specific individual customers using it there was a there's a specific quote in which kind of colors on its own witness stated that yes customers use the p m six hundred that was lacking in the states and sold to customers so once it's in the customer's hands it will at a sufficient on the law just say i'm sure you do you do think they have some evidence on this point what i'm going back very specifically to what you pointed to to the algae in your pre hearing brief what evidence of the pm three hundred infringement did you point brief in the pre hearing brief hearing but the poster brief from yours i think the joint appendix contains a single page and i don't think that page is even on the subject it is on the the monitoring device and always choose products marse the position of the mold board inside place at all times when the rotors again and that is an automatic feature that cannot be disabled or shut off furthermore obviously this gets what what do you do with the fact that the a l j made a blanket statement and its opinion that that work and manuals technical presentations and expert testimony do not demonstrate caterpillar's knowledge that sort of implies that  asks is do you have any example examples of such actions on behalf of caterpillar that is four hundred and sixteen that is what was cited in the pre hearing brief doesn't that by its terms examples of such actions toronto just asked and i think everybody is clear here but just to make sure we're clear the question answer for sixteen was cited in the free hearing brief question and answer for fifteen was not so that actually was not part of what less comes down to except that fighting for sixteen where the question begins do you have examples of such actions just to understand what that language means necessarily refers you to the answer just were to consider for sixteen all that is the conclusory opinion of an expert with no basis whatsoever to show the subjective intent did the a l j analyze the digging into the record and especially making an argument on behalf of work and to prove up one of work and burdens that's not the l j's job l j we believe did what he had to do given the arguments and the evidence that was presented to him he found that work and failed to carry the burden on both of the knowledge prongs knowledge of the pattern as well as knowledge of infringement the other thing is you know they keep pointing to the fact that well caterpillar never put any counter evidence caterpillar  also responding to the arguments that work in may and you have to remember just to put this all in context the reason there's very little evidence on a deuce infringement is because it was always an afterthought for work and they focus ninety nine percent of their attention on the apparatus claims and was only after the algae jail j found those apparatus lanes invalid that they suddenly switched and started arguing inducement that was asked of her the after the aless initial determination of what they did at the  a regular district court action what what work and said as an allegation which is playing on its face at three thousand four hundred dollars right including the assertion of knowledge  would provoke on the other side our response to the a fact you have not supported that allegation with evidence and yet you did not do that in response to the previous year and you didn't say we read on the face of your paragraph at three thousand four hundred what you were asserting but we don't think you have enough evidence for that you just didn't respond to it at all well there are again i i was disagreeing that there are there allegation is evidence the allegation is it is a turning argument when it came time for them to put in the evidence they didn't they didn't cite to any evidence to show the subjective intent caterpillar and how they had they made that allegation and what we was you know point to is there's tremendous evidence of good faith basis for of belief of of not a frenchman we've put on post or the post here in greece submitted simultaneously or assyria them so that one responds to the other or what they're submitted simultaneously and then there's a chance then both sides get a chance to reply and did you in your incorrect work in the use of the show that a rd party practise all the method steps of claims eleven dollars seventeen cents they didn't carry that burden they didn't even try they didn't make any attempt to carry that burden i remember only three pm three hundred machines were important at the time  trial and they were still undergoing field testing work and never presented any evidence as to the nature of that field testing it presented no evidence that customers were using it they point to evidence now they want you to make inferences now where they never pointed evidence to the l j they never presented evidence that the machines were driven backwards they never presented the evidence of the machines were driven backwards with the rotor and gauge because members not just driving backwards you have to have the rotor engaged you would have to know the nature of the field to know any of that they just never even tried to put that evidence and and so they are just now asking you to make factual inferences on appeal when they had the opportunity to do so at trial and  can't turn on a dime they're not these enormous machines so in order to be driven or use normally in their ordinary course of operation they have to be driven in reverse and that's what the algae actually found algae found at a fifty three to fifty four that  a necessary necessary to going backwards while the or not if you like but the that's true but it's not but it doesn't get them very far because the problem of course is the reason you don't know the whole point of the