patent office into allowing his application based on actual reduction of practice would he correct a separation to remove reliance on actual reduction to practice the examiner basically allowing understructure production of practice statements about actual reduction to practice or not but for material in addition because anderson took action to correct any statement on actual reduction of this specific intent to deceive the examiner is not hurting goal of reasonable inference in fact multiple reasonable inferences can be drawn one of which is that henderson filed the corrected declaration to assure that the suffice that one knowing of misrepresentations in application or this prosecution merely supplies the examiner with accurate facts without calling his attention to the untrue or misleading assertion so where in this record is it demonstrated that your client or his attorneys told the examiner that the statements about actual production of practice and a prototype to the smithsonian and a demonstration we would dispute that the smithsonian information is false and the applicant did tell the examiner are you saying nothing false in the first one thirty one demonstrated at a meeting with russian modelled understood and that's where he made a big mistake and when he realized if you look at the repartee facing page seven you can see how complicated the prosecution history was there were many intending applications claiming different inventions at the same time when he recognized as the state he called examiner the very next business day the examiner called the cat attorney call the examiner and told the examiner that there were problems with the declaration and actual reduction but as the problems he didn't tell the examiner that were problems with actual reduction of practice there's nothing in the evidence that i can find that suggests that he says instead we're submitting a revised declaration and would like you to rely on constructive ructions reduction of practice but that's the problem that's not enough under roman times roman health of not enough to supply new correct you have to openly inform the examiner of the falsity of the sex you originally put forth and that's what's missing from this record so if that's the president's records show me where this your honor it's present in the phone call that she testified to however however you know where show me this testimony does not say speaking with you i told him to not rely on actual production practice because we didn't actually reduce to practice that statement was all i see none of that in any evidence related to the phone call to show me exactly where it is your honor looking at roman have no show me where the evidence is you said it's present in the phone call i had he said in the phone call that they were uncomfortable with actual production practice and they needed to go one comfortable with actual dress for practice a i don't see where he said that in the phone call or there's any evidence that he said that would be that's not the same thing as saying when we said we reduced it to practice and demonstrated it  didn't actually happen your honor even taking your facts that doesn't render that doesn't satisfy that there since requirements to separate materiality and intent requirements for an apple conduct number one he did file a revised that liberation and whether or not roman ha applies to procedurally properly correct it isn't the issue here the issue here that you're going back to intent now so material from their false statement the new affidavit puts in ripken continues to contains false statements now you're trying to try to argue with that was a reduction to practice there was month to month activity in support of bringing the claims subject matter to commercialization reduction to practice and neither reduction of practice nor commercialization ever occurred correct no it did not used the general intent standard the court said the evidence strongly supports the existence of an intent to deceive and that's a forty five but if you unpack what the court f will see that the court failed to consider the fact that surround the filing of the feb twelfth declaration the fact that i just went through relating to paragraph four statements relying on construct reduction to practice that they removed all of the supporting the facts and documentation and if there is no date in addition we know because the examiner says that he relied both on the venue or a twelfth had to rely on well what about the what about the press release that sent sent over after that point in time so it didn't fit course rely on the fact that that not only did that language remain relating to the direction of practice remains but then some months later a press releases sent over discussing a reduction to practice first of all if you look at the press release it doesn't discuss the reduction of practice it right and that doesn't mean that it was a reduction to practice it's a prototype it doesn't explain but in addition it's a prototype what what is a prototype but for a working model of the invention i the invention but in any event the smithsonian information or the press release came after the patents were issued so it's not material and it doesn't have to do with specific intent to deceive the patent office into issuing the patent based on reduction actual reduction that might come to him and which is just about the most quintessential factual determination that orders for fact made don't we have to defer to the district courts determination i mean this wasn't summary judgment this was after a trial you do your honor except the district court didn't look at specific intent the district court stated the right standard in the beginning of the decision but then the district court applied a more general intent he said that evidence strongly supports the existence of an intent to deceive and he use regardless of which declaration for referring to the testimony of mr henderson was number one it did not wirelessly transmit a picture it did not wirelessly transmit an image and it did not wireless regard to judge moore's our questions it is an actual working invention of the models are claiming vention the other issue is and does he continue to refer to fota types in the second declaration declaration he refers to diligence were based on the existence of the intellect a prototype in the smithsonian that was in development in the high sugar demonstration and in that particular paragraph nine dash you it also credibility and once in the event or means when he was referring to the to the second declaration the focus is on the february twelfth declaration according to a pound him in the state and he's trying to correct it and he didn't want to see if you examine the presumably yet after submitting the second declaration and on he eventually missed a press release with the same false statements that he said he was removing from the second declaration so you in the february ninth declaration i don't think the address anything you need to say it was a mistake the only possible mistake to refer to in the reply brief is that they failed to include the dependencies to the federal nine declaration and then argue somehow that stickler ration doesn't count because examiner only relied on the second declarations in february twelfth but in order to rely on that argument a mischaracterized the record and they stated footnote  that the declaration had been faxed the second declaration had been facts of the examiner before he issued the first notice allowance in fact that's not true there were two witnesses that testified at trial mr henderson himself had a fifty the inequitable concept because i think this goes to intent miss that he has argued that why would he have submitted the second declaration and if he wasn't trying actual production practice there's nothing in that declaration by the way ever since we made a mistake there's nothing that says we're only relying on from three thousand to practice in fact if you look at the transmitted documents  it was a simulation or it was on paper it wasn't an actual working model that's exactly and that's what you think would have been necessary in failing to do that you're continuing to mis read correctly because how would a typical person reef read unless you sa period in which short period of time in order to overcome the outward runs there was about a five to six week period of time when nothing had happened the only thing he had to fill in that five six period of time was a hush little demonstration her brief that subject matter takes brings us back to commercialization he doesn't say was commercialized and you know it's sort of cute with the language the same thing with you product you and feature chart shows prototype now in the smithsonian that was developed for hashimoto demonstration if your argument is these are patently people or that these statements are misleading and in light of the prior declaration show continued intent to but i still believe it when you read it and when i read it and we were going to discover we're trying to find out when was it offered for sale what holiday commercialised i mean those are the questions that would be nasty because you're reading about th finding materiality and you make a lot of arguments about the timing of the initial allowance which flag imply that you are intending to focus on whether or not it's  material is it necessary to address that for materiality when there is per se material i don't think it was necessary but the argument we had to address was this it was anesthetics mistakenly false means you couldn't have made a false statement by mistake so you are going to tell it was major news we made a mistake by making a false statement as you said to when we interpret it so when we look at the materiality here or could we rely on her same scale be in the absence of that express signing for though i'm not sure the court did not rely on person into reality because when the court goes through the state of the law and specifically says in this case this is what we would have to show he also states in his findings of fact that the statements were in fact false that the invention was to henderson knew a curiosity our this seems like a big patent family the right only to patents of that family are at issue in this case it's correct but this same declaration that is declarations which we've seen with false or contain false statements prior to that there were three other declarations which were directed towards pages and during the trial came out that even those declarations were unsupported and those declarations were ninth for twelve and then the related applications i think there were seven or eight after that where he made the same false statements that were in the word twelve declarations and i think the court found there was  t's in comprehensible that the inventor and the lawyer patent lawyer would miss them so many times if in fact they were trying to cure the mistake in the february twelfth in other words if you're trying to cure a mistake what you're going to do is be very careful in terms of reading that second declaration and then the seventy nine ten eleven twelve and fourteen so then after that you get to the press release and in the press release they're prototype first and said it was none then he said there might have been one and then he says i think i was referring to the eighty six two lb which is what councils referred to before as a mistake but when you go to the eight x two happened and you look at what his testimony was two year time if you need it thank you your honor and couple of points based on based on what my opponent said first of all there was subsequent contact during the prosecution to further correct the problem for example correct the examiners understanding during prosecution after the patent is issued they were trying to make sure that the examiner had relied on constructive reduction of practice and so they asked the examiner did you and he said yes i did for all of the declaration i relied on constructive reduction to practice and that in the interview summary record at twenty six one fifty one the examiner said that and so rather than cure something more saying this is what happened all along confirming that the examiner didn't rely on actually duction even if you had even if you asked the examiner to rely on constructive reduction of practice for one purpose isn't it true that you still needed that demonstration which your earlier affidavit the sick ride as being a full reduction to practice in order to establish diligence no your honor if you look at our timeline facing page seventeen of our clear brief there's a multitude of other things that are going on or deduction in fact it's worth working for the commercialization that would count towards diligence thought we would disagree that you need that demonstration at all believe the prosecution here are not clean they definitely are not clean but when you look at all the circumstances there was a lot going on there were complex there were