and that these are tribal issues of contested fact that should survive summary judgment three of the first issue only the validity of claim eleven is an issue and this appeal for a woman is very broad has only six words and as a dietary supplement comprising positive claim attention special occasion explicitly defines the term dietary supplement the something that is one naturally occurring in two has never been investigated or sold as a new drug that's a column for lines twenty to thirty one of the can you help there's there's a lot of arguments that feel like they're migrating throughout the district court and federal circuit level what bases for invalidity if you argue below that if you had if we looked at that statement by the other side is just what they mean what they mean by that is that they just don't have any evidence or knowledge to contest it but the problem is that you still have the burden of proof by clear and convincing evidence that to establish to a court that in fact cornelius did have the diaspora and didn't fact try to use it along with brenda nixon and maybe a couple other people so the real question is to what extent do you do your witnesses have corroborating evidence of what allegedly happened back in the year two thousand well that's our second point your honor that we do have kroger a sion that should we stand summary judgment but i believe going back to the first part of the question that there is an admission in this case that says undisputed that he had in his possession this was a very detailed specific statement of fact that it was in a vile five to seven inches long and it was ten to twenty grams in powder ice form if i were proposing that on summary judgment i would say disputed i would not say i understood in response i don't understand whether or not he had it in his possession how does that affect the lack of corroboration as to his use of it as a dietary self and having it in his possession doesn't seem to me to get you anything or not get you everything you want on well i mean if there is a mission is accepted by this court is an admission the against interest and enters your benefit i just don't see that that gets you where you need to be well there's progress and of of possession in this  possession i believe is a little stronger because we have evidence from the third party supplier who they also do business with they know personally maybe that or somebody with why they did not but the evidence of that use is corroborated by mr emails back and forth with this person that it was being sent and that if in fact there wasn't in that brenda nixon who was a party was adverse to us that she progresses that mr cornelius used him self and others used it on themselves this isn't there's a big argument to being made here as far as reduction of practice with this claim getting to the heart of it is a naturally occurring substance claim eleven basically says a dietary supplement which is natural not a comprising a natural product i have i claim a natural product a class of natural products that is satisfied with this one natural product which is the quote from the e mail that strongest in your favor that really males make very clear that this supplier actually mails it and he statements like hey did you get the supply there are no e mails afterwards but they did discuss that that they would enter into a business arrange both interested parties in that her testimony standing alone therefore couldn't corroborate him you said to me today she's an adverse witness to you and so i asked my work here that wasn't my understanding certainly from the record and did you establish that somehow did you because she worked at since recs with dr cornelius so at least based on that fact it seems like she wouldn't be an adverse witness it seems like she would be interested in sort of her interests would be aligned with dr cornelius's interest which would create a bias problem which would substantiate what the district court did so i'm just trying to pull apart what you said to see is there enough of the fact that was created here about her being depositions men or declaration there is a musician of brenda nixon saying i can't stand cornelius get away from amy but i'm still going to happen to be on his side when it comes to telling the truth in this particular case well she acrimonious separation their husband continued to work for cornelius he did and tracks right so i guess one of the hurdles you have is this juicy clip where this court only true if we agree with you on the dietary supplements a which you didn't raise below that's your problem that's not a bad argument except that you didn't make the dietary supplement argument below that the argument the preamble not a claim limitation and the whole case proceeded until your reply brief which is the first time where it came up and so the possession argument doesn't really help you with the concludes that issue was waived well your honor even if the preamble is a limitation it's it's a very broad limitation it just says that it's never been investigated as a drug and it's naturally occurring now see that's not at all right if you look at the sentence what it says is i don't even know i'm not going trying to put it's name of the chemical but it is a directly naturally occurring would have weight of t three try i can t two comma which has never been investigated or sold as a new drug therefore it may be sold as a dietary supplement it doesn't define the word dietary supplement what that sentence clearly d respectfully disagree or honor it it puts limitations on the term dietary supplement and what it is and it's a class of things maybe there are other limitations that could make dietary supplement even narrower but those are limitations that should apply to the term dietary so definition of what is a dietary supplement how connected is dare cornelius to creative compounds he is a third party advisor he's highly involved in the business and he is just a consultant  they please your court the court your honor i think the court is keen on several key issues the key here is that since eight hundred ninety two the supreme court has made clear that oral testimony alone isn't enough to invalidate well it is if there are multiple oral corroborating witnesses actually so oral testimony standing alone by one person is not the oral testimony by two people can i i know of no case which where oral testimony alone without a document at some point woodland trust out of our court that lists all the circumstances under which you would consider witness testimony in bias and how you would go about corroboree i think your honor and i don't know if that was cited by creative compounds if it was i'm sorry that i misspelled but it's you can have one like suppose that you testify as to something you saw all and then ten disinterested observers who had never met you before testified to corroborate your testimony how in what universe would that not be sufficient so it can't just be the fact all of those things but here what we have is we have since racks which theory cornelius i believe owned and we have brenda nixon work for him and then we have mr nixon who is bringing nixon's husband who is still working for knowledge of it if she is likewise an interested person she can't come up with the kind of corroboration that would be necessary to prevent summary judgment however if she's not an interested person she could if there is a conflicting evidence in this record about whether he's interested or not why doesn't that create a question of fact should have survived summary judgment i just sat here and reviewed miss nixon's deposition transcript and what's been provided to this court i don't see any conflict in there she was let go from creating france in fact that one point but her husband is still working for creative compounds the very defended in this action she's very connected to call her uninterested i think is not accurate now she might not have the same interest as mr cornelius but she definitely has some interest in this case they are saying they didn't put enough evidence in the record to create a question of fact that she is either adverse to them or disinterested that the record evidence as it stands can afford of only one possible factual conclusion namely that she has an interest that would be my first argument and i would see on a clear and convincing standard they have to meet a clear and convincing standard that's not enough here the second argument would look they had to do more that they had that testing had to show something it had to show that this was a dietary supplement that it had some benefit there is nothing in the tests that mr cornelius did and he freely admitted that to show that it had some benefit to your diet that's not something he was he was tracking i mean he didn't keep documents of any of this testing getting keep logs of any of this testing that he allegedly did on dyaks none of that was recorded it's just not the type of research if it occurred at all that we can rely upon to invalidate a pattern like this we have to give the patent holder the benefit of the doubt that's why he gets the clear and convinc standard they just don't have enough to invalidate claim eleven even if we were to find in this court miss nixon is somehow completely uninterested and therefore credible enough to meet the clear and convincing  documentary evidence if this testing occurred where five or six people at since rats were taking diag for a period of time there should be some law there should be some e mails if they were communicating outside of  people that weren't part of the company there should be some e mails there should be some logs there should be some internet web sites there's nothing there's simply nothing other than the word of two people and a third person who was working in the w to this argument about public knowledge page four twenty one page sorry page four twelve is the only place that i see public knowledge reference and they argued that and they're not appealing that here and the other argument was public use those are the two arguments and that was after they gave a very cryptic in iraq a three answer where we believe that the only issue was going to be prior inventor ship and so our and then at least for some period of time maybe even still today you work or is working for creative that's right when you receive it for august or is that we were asked about your