colleague judge friedman has a motion and the the court will now entertain that m mark there was no dispute that there was motion swirling or otherwise but the dispute was whether that motion constitutes and back to float the motion of finding anyone with a glass of water again is well in motion isn't the motion you would  nothing other than convective flow and because those measurements by his calculations came out accurately only thing he could see there was going to must be simply come back to flow to destroy any dispute has to do with whether it's called swirling or convective that there was  there is no dispute that there was wrong that i think that's correct so it's important for you then to persuade us that the claim construction was was wrong and that non flowing should mean non flowing talks about the bloods the moving as a stream and stopping the street when one stops a stream one does not stop all movement convective flow otherwise within the sample what one stops is the flowing through the channel the flux down the river convective flow then there would be almost no device no fluid that would meet the clinical tissues all fluids have come back to flow there's that's undisputed in the record our expert testified that when he used the term convective flow he was referring to the kind of movement that kind of fluid dynamics you find it all that you can cup of water sitting on a table that's not spewed in the record so if this term is interpreted in this way it would be an opera and there's no rational reason to think that when abbott added the the structure the support obviously by the record we think is not flowing through and if you give me a moment i'll come back to this and propose a construction that would still benefit that would be sure of not flowing through  applicants will consider introducing a limitation regarding non  limitation he understood abit to be excluding the flute robotics which is the only things that would work the basis of his precedent is very clear in case after case the characterizations of prior art cannot be the basis of an economy this court has held that in the you know genetics case yeah but those cases seem to be pretty distinguishable but try to tell us why they're not inconsistent  because i think you've got a real problem too with respect to the first submission i guess you have a decent argument that those can be those statements can be read  to suggest that there's no semi permeable membrane the way there was in the p one reference but i have a great deal of difficulty in reading the second submission as limited to that it seems to be clear that it's making t alternative argument one that we don't require a membrane at all and second that even if there is that a membrane it's not the sorest time permeable membrane if you found what i mean particularly address council in the right in the middle of the argument that was that was the home dispute over patentability was focused on that wind which i drew that year on so if we have a statement on that very same language that's arguably inconsistent it's hard to argue that's not material and hard to argue it's not hyper material even if it were material even if it were my lunch or the the question is whether mr pope had a reasonable explanation if are you arguing not to use a distinction here between the arguments made in europe and the arguments made here in this case based on the fact that in europe the claim was broad enough to cover both  and interstitial fluid and in those situations the argument was made that no membrane was necessary for either case but here the claim is limited to hold blood all right i understand that you're going to see what the argument is that correct we had around are always a risky thing to do much that's your choice but i'm going to leave it to you to watch the cop i'm not going to police the timing so if you raised in the reply brief abit on invalidity and that we have not previously had a chance to respond to that i just want to respond to and that is a point that was made in their grief that sa oxygen sensitivity was a key issue and the oxygen sensitivity tests on which they are alive indicates post trial submissions and which the court relied on in finding that the three eighty five one had simil results were not in fact similar so three to says boston sensitivity tests were done on the membrane of the sensor in buffer and showed an oxygen sensitivity of five percent which is acceptable the five one disclose in separate tests there was first a nitrogen saturated buffer solution tested and then an air saturated buffer solution tested that is in fact anaerobic that's nitrogen and oxygen saturated that's the oxygen saturated solution  conduct first of all to start with the question that judge friedman you were discussing with mr single at the end of the argument there is absolutely no case or thought it says that when a district court makes credibility terminations it must go into chapter and verse about gestures or facial expressions or the underlying basis for those determinations second of course this is not a case in which the or even a district court simply said i didn't find it is credible shifting and each time not credible explanations for his conduct not credible because they simply could not be squared with the lawyer any evidence showing that they were not headed in the united garrett was directly personally involved in europe came to assist mr pope with his prosecution that he told them what had happened in europe that they discussed the statements that mr pope read in european submissions and they made a conscious decision not to submit that now there are certain things about that decision and why they made it that we have not been told because of privilege but at trial they each offered explanations mr pope's changed over time because first he said it was cumulative then he testified at the trial there were no questions on which he was instructed not to answer on grounds of privilege so the story changed between that position and trial in the trial he offered many more explanations and he offered deposition it's important to remember that understand that it is first of all if you look at the sentence there's no way that optional means required there's no way to contort that language to say so and yet that's what mr poe told patent office that's what the saying your object aeration was designed to support required that's right maybe that's a stretch but that's the argument that they were making that is the argument they were making and telling the xander that he should read it as meaning required was flatly inconsistent was having told the european in fact in the european patent offices decision following the second submission and this is in the record starting at j sixty five sixty three on pages sixty five seventy and seventy one although it's clear that the focus of the patent judge also found was impeached on multiple occasions in terms of the credibility question the other thing i want to point out is because you tend to support here that there was a very strong motivation to do this to deceive the patent office which is all reflected in the record involved in competitive analysis had actually tested competitive products and indeed put in a declaration the lawsuit that was filed on the same day and mr pope was listed of counsel so these two individuals who are or who are involved in patent prosecution are also involved in litigation aspects and trying trying to come up come up with a claim to capture competitor products but that is what i'm going to make is is to use the motivation to get a patent alone enough to show some inappropriate intent not not not alone all i'm suggesting your honor is that in this particular case because the individuals were involved in that process that they had more of a motivation than perhaps your typical patent process was important it was very expert said that there is flow in our device no reason we have little as opposed to other test groups is because we have this unique well structured which causes the turbulence is kind of like a waterfalls effect the sample flows in and swirls around and there's only a bear did not move for summary judgment on this issue so to say that the claim construction basically wouldn't capture any test rig is just not correct and so it's only because of the unique structure of our of our of our strip in the did there is no dispute that there is convective flow there on their own expert said that basically what they're trying to do is read the words in a non flowing manner out of the claim what they're trying to say now is that any sample within a sample chamber would satisfy the limitation so if you look at the limitation it says holding to sample and in not long manner within a sample change but basically they're reading out the words  flying manner because what they're what they're saying is what it really says is holding the sample within a sample chamber so they're reading out the words in a non flowing manner that's what they're trying to do and i want to address a couple of issues if i may for the history this examiner summary record which talked about the flow through cells was in the parent takes it was not in this application the parents face had different claims those claims were limited to cool off a tree what happened in this but in an amendment abbott themselves characterized natca jima as having a relatively stationary sample the examiner rejected the claims they are rejected again they put in the amendment suggest that there are arguments is sound in a non flowing manner should mean in a non flow through manner that's what the distinction was over the cited prior art as claims that would survive attack in litigation and they decided they'd rather go to the non flowing manner limitation which would which would distinguish both of them the examiner laid out an apparent case they could have adopted that they did not  and i think again if you just look at the claim language which is what i think district court judge did not heed that the non flowing manner language has that meaning and you're trying to read it out i mean district four looked at the pattern itself in the pattern itself talks about flow cells stopping flow cells it talks about slow flow and then it talks about samples at rest it does seem to be unnecessarily narrow to say in a non flowing manner means transfer of this mass transfer you can actually see it you can see this convection mass transfer that's what flow is you can actually see the fusion brownian motion is not flow and that's what's in all of these strips in including our strip after fifteen or twenty seconds and that's why  art and again this poor help that cannot be reversed in the district work that that cannot be unethical conduct because all the inventor said don was to tell the examiner how green the fire are and the fact that they themselves had other views that they themselves  attorney can can take a position before the patent office and then take a contrary position before the patent office in a different case and not disclose that you want with respect to characterizations of that they themselves actually thought the contrary that they themselves thought it didn't disclose that and this court reversed their conduct in part because those are not representations of material fact that this was or representations as to ultimate huge this is the i'd ask the court to consider is if there is an inconsistency here it is certainly not something that is as clear as until it is an invention and closest on point there certainly isn't room in those documents for mr pope or someone else to a read it differently than the district