regard to continuing malicious prosecution on appeal and overall scheme antitrust liability which this court has held it's not subject to nor pennington immunity but the heart of this appeal is fraud it's about fraud and it's about facts now in the film attack and undisclosed to judge thompson in one thousand nine hundred one that would reasonably permit a jury to infer fraudulent knowledge fraud by intentional misrepresentation and also flawed by active concealment and california law recognizes both as well as federal law this is fraud that only a jury can determine because the reasonable inference is that would be drawn from the facts that we know are disputed a suggested summary judgment is improper justice kennedy when he was on this court said in the jewel case in a separate opinion as with all states of mind knowledge must normally be proved by circumstantial evidence when i hope to do in my limited time here i outline the main legal errors and then briefly take you through the evidence i know that normally appeal should not be a place where we go through the facts but there are so many facts here you're honorable on fragments found fragments of the evidence in this and you can't tell what's this makes unless you put them together the posters and i have a hand out that you have those are just a tiny bit of what the bone fragments are in this case there's only one actor in our system that's allowed to put the bone fragments together and that is the jury not the judge no matter how much the district court believes that our evidence might not comply and a finding of fraud or knowledge it is the jury's job so long as we can pr evidence which would reasonably suggest that we are all the bone fragments because this is only a few of them minds two and three accept a rocket which is a very sick pretrial order and we apologize for the sickness but this was done because judge case after he denied summary judgment to the parties so i'm going to stand up for trial and i want you to put in a few trial order every piece of evidence you would introduce or you can't do it so we have to massive anti competitive fraud it was designed to steal an invention that rightfully belongs to the government conceal the inventions and that's lawful title from the government as well as from the competitors that is the claim was this is our patent you can't infringe here's what downs lawyer wrote and down chemical owns film tax in one nine hundred ninety three about why they should continue their campaign to not release by the government even as the federal circuit was ruling against them here's  for film tech the total is about thirty five million dollars that is a huge queuing every motive and motive is relevant to determine credibility and believability scooter libby was convicted yesterday because the jury rejected his defense of i forgot and he may not activity may be reversed on appeal but it was allowed to go to the jury and that's what should happen in this case let me just say briefly about the continuing malicious prosecution in hundred seventy cents two years before the invention or a year by year and a half before the invention john cannot sign an agreement it's page two of my handout judge nelson and that agreement in paragraph three committed made by him within a year of leaving within a year of leaving i thought that wasn't terribly relevant to the case against you all for fri patent they were still holding not having media sign is that wrong i think it's completely wrong to try and ask me and i'll tell you why because the federal circuit has already resolve that issue as a legal matter in this case the federal circuit in one nine even though they had it and they never disclosed it but when they said yes to any and suggested there were no such obligations that was a lie that was a fraud now not a federal circuit did not have this contract in front of them neither did they have  got this contract we think they had this contract all along i think the inference that john could not sign that that he founded still intact that he conveniently forgot it even though he remembered all those other contracts the only one he didn't remember was the one that included the twelve month period when he invented this thing even by their theory he knew about it but even if you didn't hear out of the other page page four is a copy of the record it's a fact november ninety two that transmitted the seventy six contract  the lawyers why weren't these things disclosed because alan actually said their attorney client privilege we didn't win that argument told two thousand but when they had this contract in november of ninety two for the federal circuit hadn't yet overall antitrust schemes that may involve one instance of petitioning activity within a long course of conduct which is not petitioning activity are not subject to nor pennington immunity that argument was made to the district court should go to the jury the other thing that he did which is a legal error in the summary judgment opinion at least five different times he resolved it recognize there were different interpretations of evidence and  disclosed to anybody the court the government the parties and the inference is a fraud that you can draw from that were not drawn because they weren't before anybody until now they need to go to the jury but what did judge him say he said well hydroponics conten that this is perjury and then he says so we took office a different interpretation well that's correct that's why summary judgment can't be granted because there are two interpretations for the same document and then the and then what did you do on the next page he said well i'll grant summary judgment because it's not sufficient to establish perjury well that may be true we may go to a jury and not with which ones we should have an opportunity i'm going to try to reserve the last minute  procedure at a time after he and some of his coworkers have already begun discussing the possibility of forming their own company our for profit he didn't disclose invention as he was required to do   he recreated the invention a couple of months later essentially the same and patented for the benefit of the defendant so it seems to me that a rational jury could me is that it's the same individual involved and it would be one thing if he were one of fifteen hundred employees at some big company but he was the inventor and he was the founder of not for profit complaint filed in this matter that on that set of facts film tech had probable cause to bring the action what that what the court is for the federal circuit filled was that finding and held that film tech has an interest in the findings of the federal circuit that on the basis of the facts presented in the infringement action film tech has probable cause and that is why so if i understand your answer to mean let me see if i can rephrase it in a way that makes sense in my own thinking those are genuine issues but they've already been resolved in your favor by prior decisions of even quarter  claim there was not a sham and therefore there was probable cause and basis and spend what is once again saying that that there there would least was probable cause to go forward with the action and malicious prosecution for example where the and i trust sham are about was there probable cause to go forward that is correct and they said there was assuming they had a sunni judge thompson had the evidence before him yes so that he didn't and there was a fraud in withholding a problem that might be different it it but it seems to me that if you took all those other inferences that's possible that a jury could decide that that he was lying when he said that he didn't know what he thought that he had a basis to go forward meaningful and the fraud of perjury for purposes of prosecution has to procure the underlying judgment and so in this case even if we assume that cox said something incorrect or that could not lie on the knowing fraud on the court below if that evidence is not on the record which it is not in this case the probable cause determination the presumption that arises from the successful decision below a ju stands that presumption i did x wants to start from the beginning without even recognizing the fact that there is a great hill to climb here thumbtack was successful a lot once your honour's not once twice don't take prevailed against allied signal in connection with title and the likelihood of infringement and it was only after that that film tech brought its infringement claim against h second time after a full trial judge thompson found film tech only patent hider knox willfully infringed that finding under the law creates a clear and to use the language of this court conclusive presumption of probable cause that us where we begin that is where film tech begins in this matter when it is being accused of and i trust violations and malicious prosecution we start with that presumption judge haley's correctly found in the record shows that there is no evidence of a willful knowing intentional fraud and constructed knowledge all this current discussion in the in the papers and this is why it so wrong the notion that constructive knowledge can satisfy that requirement is simply incorrect as a mr redlich knowledge of work are you referring to i'm referring to the to this this proposition that somehow thumbtack can be held to have constructively known didn't own the act by the way that's an issue of law it is not an issue of fact so the notion that constructive knowledge is i'm just saying general the notion of constructive knowledge is applicable at all the question of whether it was intentional knowing is the one who did the invention moved over to film tack and he knew whatever he had done because he did it well your honor the evidence again the judge has correctly concluded that it would be inappropriate for a jury to speculate and to do good and to conjecture about what could i knew or didn't know on the record because there is no evidence in fact the only evidence in this record well i don't i just i don't understand what speculated about a person knowing what they themselves have done why is perhaps i do speculative parking is speculative when on this record every single federal circuit after plying its expertise then and defining the law in the areas as well we think yes it was so assuming he knew why does that show he lied when he sa let me speak very briefly because real time i've overall scheme there is no overall scheme and when the the conduct in question below is the same conduct that gives rise to the petitioning activity  here all of it all goes back to these to a single question did film tack assert its rights to the patent ownership reasonably we know that on the basis of all of the evidence below it did that saying that it is now being applied by height or analysis that the case has been objected lee baseless you cannot skirt that by claiming an overall scheme in the conduct below is essentially the same conduct that is issue in connection with a petition activity and indeed one of the elements of conduct the claim that there was a misrepresentation to the patent office that is petitioning activity itself and of course we know that had an ox is already waived its water process there it is not claiming a from the panel so you can't bootstrap in this case scored a number of years ago we are now before the court on a full complete record it is on that record the judge chase concluded two things correctly and this court should affirm one that there has not been a showing of fraud or perjury knowing  intentional that defeats film techs conclusive presumption of probable cause and two that the undisputed facts on this record notwithstanding issues relating to a couple of employment agreements those issues are addressed presented to the chance to two of them from the parties from the competition and from the federal circuit when it ruled in one thousand nine hundred five the last thing i think i'd like to say unless you're honest have questions you would have to overrule your prior decisions in clipper