get there was clear and convincing evidence of the time in question and that is the reason if it's a legal question as you then have to know what what is it what does it mean for evidence not just to be some evidence or even a fair amount of evidence but clear and convincing evidence and on that point the key issue underlying issue in dispute here is the exact issue is when did leader to leader first embody the patented invention before or after the critical date when i met a question for the jury if it's if there is sufficient your opening great you say that the improper attempt to shift the burden of proof the leader only confirms facebook's fundamental failure to carry its own burden and you cite the fighter for that fission to rebut that of the challenger but that doesn't shift the burger is two different things it seems to me that if facebook met their burden an initially with their cross examination and their  but that's frankly always true in every field every argued achieved suffocation that little more specific but there's a reason the reasons that we didn't doing it for a few things first remember facebook at trial was raising a lot of different issues including in every other one so we had make decisions and every other one had an expert presenting an element by element analysis based on technical data so this one where it didn't and where it was just saying in it we're just relying on witness testimony when both witnesses direct testimony and point supported us didn't seem to be one where we were going to be spending a lot of time a trial but seconds even apart so it's a lawyer decision a trial in part because again this mearns proof before you find out what they're putting on you decide how to use your time to respond that test testimony trial live testimony they're looking at again in iraq for a response but they also got it a deposition response that seems to be directly contrary and they're relying on that in their no that and that's part of the credibility of because what we're not talking about a little sleepy or this had been under development since what nineteen ninety nine and the critical date was zero two and they just just under a year from the from the provisional is nothing you know devious about that and so the point is that then what you've got is the critical date and the product being you know reduced to practice our you know basically at the same time now what facebook but the critical data kicked in yet but even for that and this is what the discourse footnote once you in it's opinion there's just no evidence either that you've had an invention was will do two things about that one is what they're looking at is an e mail from someone a discuss an effort for sale of leader to leader before them and one that's the first things before the not after that in that two or three it went oh but second again the e mail like everything else just talks about leader to leader not about the paths of invention and the whole point of the clear and convincing evidence standard is that you code and the court granted motion compel us to produce the source code on the ground that's the only way facebook can figure out whether the patent whether we were to lead or actually practiced patented invention we produce the source code they reviewed it and guess what no one ever heard anything about it air and it's palms raised to the ceiling looking for these eyes it all head and they make a record of that and they say obviously he's lying to me that's real evidence too is it not is that i mean the demeanor of the witness it's this is the point it's evidence that allows the jury to according to jury instruction and about twenty four cases start in their brief to disregard the witness's testimony it's not evidence for them to the contrary of what the witness testified is charging pardon my  if you were trying to prove infringement forget about clear and convincing evidence for parkins you're going through frenchman can you establish your case by simply calling the defendant to the stand and asking the defendant whether or not he practices all the claims or for otherwise they'd never question is what else do they have on the key question not on the leader on the key question of when the patent invention was a minute or two later help them connect the dots and on that it really does all come back to the inner auditory and the reason that's not that's not even close to clear and convincing is three things first the question asked in the present tense does leaders leader you know what price in body and the answer in the present tense about embodies this is years later second the present tense is not an accident because at this point in time says for each claim tell us that leader content is practice by any product you're saying the answered it honestly we said leader to leader practices this doesn't one other interact or at the same time as this one which support and that was a party had the false marking claim which is probably why they wanted in the present tense to know which of your things actually did exactly if we don't live in the past tense they would have said it was not responsive and they would have been right why would we have done more could we have done more at that point the record doesn't contain everything surrounding the interim tories just says that page or pages where there definitional provisions or anything that required you to  there is there are a number of pieces of evidence that support the jury's findings in favor of facebook on that issue in the first place mr mckibben testified that even under his version of the events at trial the invention was fully complete done fully coded and part of leader to leader plug in to part of leader to leader before a few days before he said he's ou but but but but actually if it goes beyond that what was offered for sale but it actually goes beyond that your honor because i understand her eight which is obviously within a few days before the critical date of december tenth two thousand to understand for a two thousand two mr mckibben sent an e mail in which he described the current state of their negotiations with both the limited and boston scientific and in that e mail he specifically said look into a contract that they expected to sign in january with respect to the limit that what they were offering to him of leader to leader that's at twenty five seven o five of the joint appendix and they're offering the full suite of leader to last six months six months before that if they had there was a leader of the leader of yes or on a program right yes your honor if they had offered it for sale someone when they had said this is our full suite of technology actually in the in the you're afraid i think to the right patterson after in january a few thousand sent in that offer they also use language making clear that leader to leader with digital leader board and that's important is operational and fully developed that's up in january in two thousand and ten operator right patterson says and remember the their own again mr lamb the other inventors own testimony relies on an august  will lead a board with with leaders of leaders being offered in january of two thousand and two so that we submit provides pretty convincing evidence of what was being offered at that point of course the interactive story when they when they just described what practices eventually again they say lead the leader with the digital leaderboard engine so the digital leader board evidence provides an additional ground for fighting this opposing the verdict in addition i'd like to point out mr lamb's testimony to be sure he testified as as mr j that the jury didn't have to believe the testimony that supports the other side's version and he also testified separately he said that the technology took a couple of years maybe three to four to implement after conception that conception is august of  thereby i've met my clear and convincing evidence i agree that's correct and a law degree that is all that other stuff didn't exist but you're saying this is not that case yes that's absolutely right in that case that the jury is entitled to disbelieve and that can be affirm that is affirmative evidence a spring court that in really the third circuit said in urban which is a criminal case the certainly in a civil case even one subject to the grand convincing evidence standard that is affirmative evidence but it's also clear that standing alone it's not enough to get over the burden but when it serve as additional evidence to support the other evidence in the record here we have ample other evidence in the record that confirms what they were offering one for the pen to technology and i'm troubled by the interactive tory responses providing that theoretical affirmative evidence because you tried to tory responses were telstra absolutely in the present tense and given the presence of your full marketing claim it seems to me you were going after very much what are you selling today that  a legal response and it says is practice yes but how in the world describe that ever be used to support the notion that it was practiced ten years earlier your honor when you're talking about a product the product of leaders earlier we know that ever sold this and you say wait a minute i know it didn't always have this form and this is software the stuff is changing every single day well maybe you mean that it's not like this is like microsoft word where you have a different version coming as i like as you know something called version one of leader to leader  the whole are you about are arguing about the code of course has nothing to do with the record before the jury they claim in their brief that we gave them all the copies of the source code there's nothing in the evidence in the record before the jury to that effect in fact there's nothing in the record to that effect within the records that it will make were give offer the source code in fact the standard is any relevant evidence and when it when you're tried just as mr jones for said when you have a lot of issues to try a lot of the factual issues and here you've got the admissions of the party opponents on the and the critical issues that you can give to the jury why try to complaining that you didn't have a pristine copy i have no clue what you even mean by that and that somehow justifies why you didn't include it as any of the evidence i'm not complaining or on quickly answering the question about notice notified them and this was in february of two thousand and seven some five months before the trial that the notice said we want to talk about these issues reduction to practice and which which versions of the software practice the patent and so we a identify any version of leader to leader that didn't practice the past you can't identify any version that combined with the inner audits response of those two facts in themselves provide strong evidence that if you if the inventor and president of a company can nine and the reference of the digital leaderboard are twenty seven to zero two and twenty seven to my four perhaps among others and again it's the suitably talks about leadership of the leader with the digital leader board system and how it's going to provide a implemented a method of managing data comprising computer executable the key phrase it seems to me is computer executable act which comes after the word comprising yet you will claim it's part of the preamble and somehow mr joseph or didn't respond to the contrary  remains that in the final step they add you and you can't give meaning to those words i mean discord again and again constrain similar language has concluded that requires third party third party user action and it's not therefore something that facebook can do well it says dynamically updating the stored level data no yet is it says that which clearly the system can do but then after that you have the which introduces an additional limitation the user employs at least one of the application the data from the second environment that requires the user to do something and therefore that the facebook system must do something and the user must do something and ultimately what the user does is going what and the answer is nothing that would even be near near clear and convincing evidence and we know that in part because the district court in the same opinion allied soley on the combination of those two things and then the footnote you know  is either waived his wasn't presented below or is wrong and or both for example digital leader board now seems to be their key effort to try to tie leaders leaders the pap to convention you read the entire trial transcript you want to single description of what the police report is much less a clear and convincing on the reason is that's not what facebook this is trying to prove its case on below the correct answer which again you're not going to find this in the record but the correct answer if it's helpful to the court is additional leaderboard is the software component the engine that drives the overall leader to lead or product leaders leaders functionality that's it that's our point whatever whatever software leader we other that's our point i don't understand that and it no we don't at all and there's no evidence that it is because this is the key thing is the promise from the jury you read the trial transcript there's no description of leader of digital before the patented invention was in the product you had a leaders leader powered by digital leader board and additionally the board was the software module for the product after you later complete the patent invention and put it in the product the patent invention is then in software part of the software goes into digital leaderboard for sure but digital leaderboard is not synonymous with just a patent mention any more than leaders leaders not us with just the patented invention but the reason that is appellate court you really don't have to try to sort through all of these you it just and that was the whole point of the filing cabinet application there the problem is facebook a trial actually didn't remember because the critical date is right at the time the application was filed in the barring activity in a few days windows just before facebook a trial was arguing that the invention was ready for passing for purposes of barring activity but was not enabled for purposes of giving us the benefit of the provisional under which we usually would have won which i think is another reason the facebook really tried not to prove its case to meticulously share because in addition to being wrong it was really on the horns of a dilemma there between