seventy six this is the section in which the district court stated its conclusions with respect to questions of material fact  give you just a minute to get there is where the court concluded that there were no one disputed facts and and listed those undisputed facts to make sure we're on the same page literally a fifteen and you'll see there that the court says wasn't that clearly the subject of the admission in response to question one fifty one let me answer that in two parts one could argue that we did admit that she insisted however we explained to the district court that we were simply admitting that she had testified that way that there was no corroboration for that fact more than that are we also incorporated into that response a list of and then we also listed in that response which we incorporated into the response you want to refer to a reference to the letter which mr salvatore sent to dr miller saying here is the protocol that we agreed on at the meeting so that the evidence is that the protocol came from a meeting at which two people were present dr levy was not present the contemporaneous record shows that it didn't come from salvatore it came from miller so what our position is that  admission doesn't say that i understand that you want to add and that's why i say it may be that we're stuck with that admission but we also asked the court to allow us to amend our answers once it became clear that we were on the same page here and more that we do not dispute that she had not in fact tested nine hundred milliwatts percent of a disk with a that's not an issue before us it was only in the sense that the judge concluded that if you did test nine hundred you couldn't conceive nine hundred and he relied on some testimony from our patent law expert what you just got wrong she was asked a question of if you test three hundred six hundred is that a conception of nine hundred and she said well no because you've only tested three hundred or six hundred and the judge just read that into the therefore you have to test nine hundred she also testified that if one conceives a range they actually have a convention of everything within the range and she was never asked the question if you've tested three hundred six hundred twelve hundred the highest a radiance which could be safely use was nine hundred milliwatts percent to be to square it is absolutely no evidence of that whatsoever the evidence is going to sit in the patent that you can use up to eighteen hundred milliwatts percent of me to square the tests that he talks about show that you can have no damage up to eight hundred milliwatts percent to be to squared and that it's effective up to twelve hundred milliwatts percent of me to squared the judge essentially made findings of those tests were not successful that they were relevant and he did that in the face of testimony to the contrary for example he said that some of those tests were run on normal lives and he said therefore you can't rely on those well three q well t witnesses testified to testing on normalized part of the way you do this testing on normalizes referred to in the patent dr miller had also tested disease dice and normalized in monkeys and concluded that they were parallel in terms of their response dr miller preferred rate irradiance for six hundred and after doing her higher radiance tests she recommended six hundred as the optimum number the there were then discussions back and forth between miller and t and a protocol is developed which contains a radiances of three hundred six hundred nine hundred and she goes ahead and test those but she believed six hundred was the preferred range that's what's in the patent that's what the f d a approved but in terms of an optimal range the patent says you can do up to eight hundred typically people do up to nine hundred my preferred vitamin is six hundred which is what the f d a approved was there anything in the records that nine hundred are that dr levy for so some  which she expressed surprise at the results of dr bill it was getting nine hundred is simply a number there's no evidence at all that it has any value it's simply between six hundred and twelve hundred read if it was the one number that dr miller had the test she tested three hundred six hundred twelve hundred eighty eight hundred nine hundred if you will was halfway in between there's no evidence at all that anything happened nine hundred that doesn't happen at six hundred twelve but the tests that were conducted why dr miller at twelve hundred eighteen hundred that that whole range of tests conducted early on those tests were conducted on using normal animals is part of the the program here and in fact the patent discussed as usual animals so what is true that you use normal animals but she concluded from normal animals that you could use up to twelve hundred effectively and safely and up to eight hundred actually safely is primates with disease but what why with the test results on the healthy animals that certainly would have stablished that the treatment was was not going to pose any sort of threat or cause any damage why would that provide any guidance whatsoever as to what the appropriate range should be not the blood vessels close that's deficits and if the blood vessels in the normal eyes closed then you know that the p t treatment is working in a disease the edible because there are new blood vessels that the drug will localized in the diseased part selectively and you hit that and it will destroy those of us but the effect of destroying the blood vessels or closing the blood vessels i should say in the normalize is the kind of thing that you look at  others to determine that this is going to be effective and the difference between the two was in the disease dies the drug will basically going to the disease carrier so that if you spread out your end of the disease tear you won't get an effect any from contributions to the conception of subject matter that actually finds its way into the claim in other words a principle that contribution to any element is sufficient in this case as we know  that encompass the nine hundred and i'm trying to understand the difference between what dr levy suggested and what any not just any lab technician filling the gap because this is a gap that  and six hundred and what dr miller said was that in those early tests and this is quoted by the district judge since in his opinion in the early tasks they were looking they wanted to go higher because of a choice in the treatment that they were looking for toxicity as she went higher and what she found was that there was damage at twelve hundred and damage eighteen hundred she decided and she testified under oath that six hundred was hyaena she seemed hemorrhaging at higher  at the higher the eighteen hundred and so the what what you're hearing from any high is attorney argument but it's not actually based on the contemporaneous documents but contemporaneous documents actually show that miller only wanted to go as high as six hundred so since leavitt came a line in in collaboration there's no question about collaboration and change the protocol and said no i think we can go as high as nine hundred twelve hundred was really not significantly different than problems you would expect at any of the other ranges not actually and this is the confusing part of the presentation in the i'm and i think what you are thinking of is there was an early document from miller in which he referred to in geographic results and that's just taking a picture and looking at it and she said it didn't look that different between twelve hundred and sixteen or twelve hundred and six but that you needed to await the his y where they actually take this that tissue sections and when she did that she reported back in the later document in june when she made the proposal to kill t as to what she knew the protocol she came back and she said that we saw  resolved in the favor of the non non movement and you have to establish given those parameters that there is no genuine issue of material fact and it seems to me that i'm a lot of the things that judgment let me tell you why for a couple of reasons of course conception and inventor ship are questions of law or the court they can turn on underlying facts but in this case they don't and the underlying facts are not skewed because the underlying facts are documents or contemporary documents what is unusual about this case is that new work herself never came forward with an affidavit declaration in which she said i conceive the range up to eighteen hundred i it's an upper limit of a range that is important to safety and efficacy and they did not claim a higher range and we have contemporaneous documents from miller saying that the twelve hundred in the eight hundred led to damage the legal point though i further want to make it is and this is a this is an unusual fact about this case and that is there was a double patenting rejection the judge the district judge mentioned  was a new invention and went there and under those circumstances it seems to us a person who literally contributes to the upper end of that range that they chose to quit has made a what the optimum what the upper limit is trying to underwrite and that insistence returns one in two the inventor of a concept that we're we've been presented with by someone else she's not this is a case i think where the conception comes out of design in other words levy wanted to try a higher upper limit the nailer did in the experiments going forward those would be the first experiments by the way in the point that we're making there is that there was still a lot of experimentation to go before one could conclude what actually was a say affected and selective and they have not tested any of these higher radiances in a in diseased tissue and there are questions not only of whether there is damage they refer to thermal damage which is just heat but the questions of whether at that high had a radiance whether it works effectively because you get light scattering when you go that time and so in a case where you have continued experimentation that everyone agrees needs to be done they don't know the answers yet they haven't solved the problem that they set out to do this is one of the this is a key part of invention had they solved the problem had nor solved the problem in one thousand nine hundred two now they have a lot of experiments together and another case that it's important i think so all the water case one of the points that's made is that when you're looking at subsequent experiments you're thinking about do we as a matter of law was their conception at this earlier point when you know that there were subsequent experiments well if there were subsequent experiments and they were directed to the subject matter that actually is claimed in the patent that's a strong indication that there the proper route i don't think so because the the facts and we started off as just one started off the facts were in dispute is the fact that it was levy who insisted on nine hundred that is the actual range that they claim you have to have to have construction you have to have conception of every feature of what you've actually claimed so and there this is this in this case there was no evidence coming forward that miller had a conception of this range of three hundred to nine hundred and there was no evidence from her there wasn't testimony from her that she had a range in mind up to twelve hundred or eighteen hundred or missionaries or any argument that every laboratory technician if someone says see what happens as you go out to the outer limits would be a joint invention it will i would think change completely how scientific research is done in a in dustrial context it would everybody who gets their hands on an experiment acquires ownership of the rights then as opposed to the rules which have been is you  please about there's no question in this case that this was a collaboration that was admitted also and the nature of this collaboration was to try to optimize the parameters and the the constructions a they refer to is merely based upon designing experiments that were not complete didn't provide complete answers we know they didn't answer anything for look the song we know that in this or anything for disease  up the experiment and it may be it may be that until the experiment is actually even completed that there's not a complete conception but in any case we're talking about contributions of a very small number of people and interaction between a couple scientists on it as to what should we touched and so the simple stepping back from all of it i think that if we can take the answer to come back to to judge mary's i think you need to wrap it up yeah but to come back to judge mears comment in this case what was claimed was three hundred to nine hundred and let his contribution to that is not disputed and the other arguments about prior conception just fail as a matter of law because levy did contribute to the upper end not just nine hundred by the by six hundred t report was that the maxim of the average was at six hundred and eighty eight hundred six hundred fifty eight group this is a laser shining it is there's always some damage that's what the patent said there's not a shred of evidence that there was treatment limited damage if you will in twelve hundred for treatment limiting damage at eight hundred the evidence is to the contrary and the pattern reports that so whether or not the average we see the image is always seen the question is is it significant damage proving efficacy at a minimum whether or not dr brotherhood sure that is certainly a disputed issue a fact we believe she proved now mr ware says that she didn't want to test nine hundred she posed to rigidly testing three hundred to six hundred that's because she didn't go to the six hundred it's your question or it was her preferred value she didn't see any reason to test in something prior because she already tested this is my speculation i could see but she'd already understand it a number of issues raised with regard to whole host of the limitations in the various claims in this patent as to the inventor ship not only by dr levy but inventor shipped by others as well the sense that and i and i'm concerned that if you if you win this battle you may ultimately lose the war when it goes back on some of these other issues it's a little little bit of money unusual it not have been better to allow the district court to the flesh out all of these inventor ship questions and reach one judgment on all of the inventor ship issues before this individual piece was set up here for appeal i'm not sure i think our position was that he had decided on this matter which is we believe he was wrong