sanctions order to the extent that it applies to you yeah i not her father question the only thing i'm doing here is that is the sanction order itself perhaps the issue is this the sanction orders on force ability and from denial of intervention i think what we're trying to figure out is do you agree that the numbers two and three the judgment of on enforceability and the denial of intervention you don't have are present the argument at least i have no concern no concern to me it's really only the first sanctions order and to the extent that the sanctions order was predicated on  you think we can consider the merits even if we can't set aside that judgment i guess what this means is you could be successful on the sanction were against you vacated but the pattern is still on forcible because the parties with interest in that didn't are you on the hook still in order to create standing here for anything or have all of the damages been paid by the parties know that they're not all been paid by the parties and that's a bit is an important distinction that's an important point conduct would be appropriate for us to remain and so that the court could determine whether or not there was an alternative basis for a sanction i don't believe so i don't believe there's anything on the record that would leave purposes is the sanction whether it's alive and well and it's i'm living with that's real and there's and there's money on the line i mean it's as real as it gets whether beyond that if the court decided and i think this is really an academic question but if the everyone didn't catch the difference including you well because they looked very similar and and the feature that was at issue was similar they came from different molds suppose that and i correct me if i'm wrong i thought the district court found this that they were in the respect at issue in the p t o they were structurally the se i suppose even for a moment will get back to it another point but suppose for a moment that the six ten was not prior art nevertheless the p t o examiner had the six zero one a very difficult to decipher photograph right if you had with you something that although it was not prior art you understood to be structurally the same why is it not material to give the examiner a much clearer view of what the examiner already had in front of him namely a picture of something that in the relevant respect is the same as what he had in front of him but couldn't see very clearly well because i think there's built into that that question and a faulty assumption and that is that is that it's the same thing even if the structure looks the same even if it's very a very similar hanger similar enough that people looking at pictures of it got confused and there are things you can look at and say oh they really are different there are structural differences there once you once a point that are obvious but even if you assume there are similar it's still a different reference ordered whatever the current american hangar was and what was shipped with the six ten whether or not the six zero one ever was a product that was shipped we don't know when you received these hangars you didn't look to see whether or not the refused to provide any information and it wasn't until the deposition was taken under the subpoena power of the court that that third party deposition of merrick that it was determined which product was what and when what was available and might i might  no obligation to disclose naam prior art or something not proven prior art in relation to two other references that were i to move that to be the law if i'm wrong and if there is some exception parked doesn't mean i was trying to hide something and this is what they were sent it's clear on their part of the part of the problem that you refer merely made a representation to the patent office that you couldn't tell from the image whether or not the hangers about each other and then you get hangers that appear to abut each other and then you don't do anything to clarify that's original representation i'm not sure what the court would have been clarif or materiality you treat this exactly as if it were a post trial clear error review well i think you also don't make anything of the sort of super high nine hundred twenty seven standard well i think i think that i do i do discuss the fact that this was brought up on summary judgment but i think that i think in the end that's just that's just icing on the cake i mean the fuck was this could have been after a jury trial and with this evidence it's wrong so isn't there evidence from which the district court could have concluded that the six ten was prior that is was a very either a deposition or anyway some testimony that says you know we started so the court admits flat out that yeah you know it took a look at this and we were all wrong about this and to this day the six ten years never been shown to be the prior art is the standard material information relevant to the examiners decision not material prior art in fact that's the exact language that comes from every case it's material information and in this case the examiner is trying to decide whether a piece of prior art in his possession had abuts or doesn't apply and we can't figure it out from a figure and you've got a physical and body image at that point in time and it might not be the exact same model number but you have a physical embodiment and mr dower he testified  ordered the same one shown in exhibit eleven given eleven is the six zero one and he thinks he ordered from the merrick website the same one shown in the exhibit a lot i believe exhibit eleven with the letter your on was the april twenty similar to the patent office and it was not it was the six ten that you thought you were getting exactly the same thing i did your honor i thought you were getting the same thing and you testified pretty much honestly to that effect you know early on that so it's at what point did you suddenly realize oh i don't have to turn this over the p t o because it's not in fact the l y when did you have the a pity that it was a different model number because it seems like you've changed course at some point and the point at which it appears to change course in the record is really late i never changed course around respectfully i from the very outset missing my deposition before we had square for the whole six zero one six ten issue in my deposition i said you had a physical hanger i believe a physical hanger is  different reference from the one zero to the different reference than a print the publication and therefore that even if the printed publication the physical hanger the same model number i do because you don't know when the hanging with the valves and i still believe that to this day you don't know when the hangar was available so the printer reference shows what it shows and the hanger shows what it shows and right maybe i'm misremembering but this is the printed references is that the kind of hard to see photo it was the web printer so why is it if you thought you now have a physical model and you thought it was the same and you know that the examiner can and can't make heads or tails of the piece of prior art he has ma hangar as shown in the photograph if the examiner have the hanger you could see exactly what the anger was doing in a way that he was having a really hard time seeing from the photograph because it was my belief relied on stand for the proposition that you have to disclose everything relating to that the same art to the extent that you have to the same market and that's the key thing in american tell car the facts are radically different the american my point the the physical embodiment showed him things that would not dispose of the printed publication he had both before the critical page and it was all about the same reference it was a it was a manual on this particular product the patent office and he disclosed information from that printer publication knowing that the product disclosed different things and he didn't disclose anything about the product but no matter how car it was the same product the product had different teachings than the printed publication and he selectively disclose this case i didn't have the product before the data invention and never had the product which some instruction manual applied i got a product came across my desk i said i don't know when this product came out and so whatever this product teaches that may be different from the printed publication  publication we're talking about a web page offering the hanger for sale it's offering a hanger for sale and it up in a different hanger but it but it's a picture and that's exactly a picture offering a hanger for sale and you had the actual anger and there was a question about whether the hanger had all of the elements of the claim right but it's entropy is a different hanger my client said on the record that part aside let's talk about what you did for the patent office because at the time you thought it was the same  don't know that they really were different in material respects right putting that aside you thought you had to say much but i thought i had the same hang and friends but my understanding the law and how i believe american counterparts supports my position standing here today problem here is that the printed publication that you submitted was unclear if you couldn't tell what it called and then you had a product that actually showed what it tells but i disagree with that it didn't it didn't show it didn't show what it showed  sale didn't didn't actually teach what was exactly in the product it thought differently with the top and my thought process was that based on to says like web site you're looking at a picture of a hanger and you have absolutely no idea what type of material it's made out of the claim requires it to be made out of steel and if you have a physical here and you actually broke it in half to look at what it's made out of inside it looks like plastic on the outside turns out it's made out of steel that the offer on the website doesn't in fact disclose that hanger made of steel correct but and if you get the hanger but you have to disclose material information to the office and sometimes information can be information even produced later in time about what was in fact on sale earlier it absolutely i agree and so why doesn't this sort of fall into that scenario i don't have a physical embodiment which shows what really was offered for sale on the website so that's that's the part where i don't think the record supports the question we don't know what we know now and this is because we know now that it was a different product and the code even made a we enough to get the rug out from under me and to sanction me and to and to and to basically hang out there as a pariah of the conduct if i made a mistake if i was i was grossly negligent and that when i got this hanger i didn't know the hangar as opposed to this this fuzzy area was out there i didn't know what was available at that the at the time had the examiner cited possible prior arts here one is the printed publication it doesn't matter what the product is like two because the printed publication has to speak for itself so the hangar itself can't feed material to feed it to protection of that document period and then as it turns out as luck would have it there is actually no other piece of primary our prior art namely six ten as a product because we don't know its prior corr