infected all of the court's grumblings calls and yet to make multiple claim construction here to mislead the jury and to find unethical conduct when it was not in my time this morning although i'm happy to address the vibrations were completely eliminated at the at the martin hearing your honor that's correct that's the conclusion dispute was about whether it completely eliminated vibration or whether only partially and that the marker hearing the judge correctly interpreted the claim but then when it came time to and instruct the jury and it came time to decide never to conduct the judge had reduced it to something quite different and something in fact inconsistent with its claim especially ruling because as it informed the jury it said i have one of these webster's dictionary in my office and i'm going to re steel bars as an example he went back to a firm base which not only was inconsistent with his reading of it only partially reducing but also pointed the jury too only at the question of whether or not the prior art had issue and the court basically asked what is it you would have me do to sort of straighten out the record to make sure the jury wasn't misled by my comments about the of curing he went back and said and of course you're also free to look back at the dictionary definitions i gave you earlier so he went right back in he didn't hear he read one sentence and if i could back up the word because i think you're going to the issue of whether this was adequately preserved by trial counsel and i believe that it was before you gave the instructions the parties had agreed to a full set of complete and structure and one of which was the market in construction of rigid frame and the judge said ass i'm not i'm not indicated your you that i have made a ruling on the meeting or anything about sword there was a request a six six four which is after he read the dictionary definitions to read the market and he refused on the grounds that that was captured by the plain language colloquy i think your honor under second circuit case law once you've made your position clear to the judge and it's clear that the judge is not going into what you ask you are permitted to fall back and try to get what you can and that's what counsel i think the accurate reading of the record here and in any event even if you think that ultimately agreeing to the judge's ruling is to read only one sentence of the requested three portions of the specification that l k has counsel subsequently requested was sufficient then judge then in fact in the process of curing said on  i think what he says is the you have to have they must have known because i find it highly highly material so but vatican n is all based on his erroneous construction of the claim because he assumes that it was material because he thought the really framed imitation was captured by the aluminum base with the pieces attached to it and there is no evidence in the record that not in either the jury trial where the bench trial that the pieces of the grass or sheet the elements were attached in fixed relation to one another but even one thinks that they had a tape with pieces attached to it would have been important to the exam or the exam or had other things sufficient progress or patent was revealed the grass or machine the existence of the machine was repealed and  other external damping mechanisms that's at nine hundred sixty two to sixty three of the appendix and that is exactly what the grass or machine all that it would have shown and they point to pictures i mean rules but if you look at the picture and you can see all of that show it was that it was on the space that seems odd to be biting about the meaning of rigid and whether a piece of prior art shows the structure that provides that kind of rigidity when the patent itself only table but the defense can point to nothing about disclosing the structure of the machine that would have added to anything that the patent examiner had with respect to resisting vibration and there was there were get a ration about the quality of inscriptions obtained on the grass or sheet that were provided to the patent examiner that showed they didn't make the precision that prove it does and then mr besser testified myself at the trial that that every time anything really went by every time an elevator went up in a building the grass or sheen would have we be lines ca address the declaration if i may be such that the declaration is there was a decision not to file it at the same time so that they decided not to call it nine hundred eight they they filed it in the nine forty eight application which is pending before the very same examiner under this court's law that point  to say anything about positional accuracy or positional repeatability which was indeed the improvement captured by the claims at issue in the nine thirty eight pa mostly the intent issue i was going to start with the nine thirty eight but i will start with the three five we want since there was so much discussion on the richard frame church when i think you hit the nail on the head beginning of your questioning the issue at the mormon wellston about the rigidity of the frame or whether the elements were tied together the issue of the mark one was whether or not it had to completely stop the five gratian  just increase the immunity to the vibration the judge ruled against us and said we needed to do was increase the immunity that's just what the claim with which said so let iran at the jury instruction ordinary meaning of the claim and that's the way i went but without the judge instructed the jury that he had made a ruling that claim means what it says and that's what you are to do to go with the jury would be to report it dictionaries or come up with whatever of a definition they thought was appropriate but that's not what happened i mean you did it is instruct them basically on the claim way and said plain ordinary meeting which is the only thing that ok i asked him to do it at the martin hearing i mean we asked for more explicit construction they said look just take the terms plain ordinary meaning so there is nothing warmly be inappropriate sure instruction sure but when the essence of the market ruling it was the plain term lane which itself there's nothing to add is i guess my point that the point we don't believe that's appropriate your honor we think this case should be decided under existing laws we don't believe that under this case any change in the wall would make any impact and so our intent  highway with period character of that information the fact that when he got it they were actively working with the litigation warriors to file litigation quickly good decision to disclose in the under cross examination and under the judge's questioning his cumulative our testimony well as there were two references presser and insisted that disclose the same thing but even under his existing references were in the continuation application as well as at the application that he didn't disclose and the judge in questioning said your testimony doesn't make any sense you're not making it a principle distinction gave he didn't disclose it and knew the issue feet would be paid by and nine days later and they would get the pass and be able to file with so who is it in case like f m c or any of those other cases that coun would disclosure in the related application is evidence of innocence in fact here it's evidence of intent because the intent was to get that patent issued because they needed to father that they did after after giving it some consideration but that still leaves open the question of whether they were trying to mislead the patent office or mislead them or when it was there but you that there were two other references that disclosed the same information maybe not proactively maybe not the exact numbers but nonetheless it with the world you are that's where the evaluation or the credibility the school or the key elements of the klein so you're right that's exactly what they said they said that doesn't stand up under cross examination and that's why the witnesses their bases when they were questions on the subject and the trial judge found them to do so because their testimony just doesn't add up and it's similar on a three five one patch up and i kind there's a number of them in the record would know that all the elements are tied together it's astounding the council said that there was no evidence in the record on this there was ample evidence in the record there were pictures of the machine saying the only way to get around the prior art is that the prior art doesn't have all the elements tied together on a solid platform is that what they should do best told them their priorit quite as does have all the elements tied together on a platform and in fact they were totally opposite they told the head office action that the prior art none of the prior art had ever tied together all  on a single platform it was just not true and it was not cruel demonstrably biased simply viewing of the machine i mean it's not something that you need to investigate looking at the mean usually would since it talks about three elements having to be connected to life so there has to be some because there's a laser there's the optics and there's the diamond mounting stage so they all have to be connected somehow to that and and squatters everywhere in the in the world based on these machines and that these machines were perfectly suitable that was nobody complaints about vibrations or or swiftly lines or anything like that they were perfectly fine and so when having that information for them they just went ahead and filed these new patent applications just basically ignoring the previous machines that i think we just recently was sitting with with regard to the three that has all these three elements the laser the optics and the diamond holding stage tied together on a and in on a common platform on a common for just right and i think materiality defense counsel here is is making the same mistake that the district court made just that the only evidence in the record is that three elements were attached in some fashion to a common base in the grass a machine there is no evidence was referencing any one thirteen in column two starting at line fifty one the process according to the present invention typically achieves a positioning accuracy of about plus or minus one micron and even goes on to talk about how things are rigidly connected to reduce the vibration and i think the fact that both of the winston patents reveal both depth and wit and the testimony of the prosecuting attorney was that he believed it to reveal those death and resolution meeting with incensed case just to be clear l k i don't believe that this report can be reversed on the current state of the law in the district or is wrong here for several reasons factual and legal certainly if the court were to adopt a fraud standard like that  decisions there is no way the evidence here in support of fine thank you