that's exactly what you said to the district court in chief at the status conference center yes yes the other but my opponent has said that my comment on the increase of the of the activation rate when i was referring to when i can i can give you that i was referring when i said this is what we i think my statement was this is what we just said decided all along that quote was it based on  only referring to that previous statement by kind of his prior counsel i wasn't advocating a baseline that or that there we had to show something in excess of that baseline oh oh i knew that several circuits pla construction on june tenth kind it was required to prove that active steps results in our oxidation no more no less under the district court's construction we were not required to prove the baseline level oxidation if there's something in excess of that what was another washing step right that again was certainly not doing nothing or allowing oxidation to occur on its own i mean i submit it doesn't take an expert to figure out that that's an active step as opposed to a passive step of doing two which used the word can i suggest that in paragraph one fifty nine dr sherman said what is actually a scientific fact actually what is happening during the actual through the washing and it wasn't the trap parts restructuring for the same reason that was based on the unreliability of conic as claimed construction the only argument she cites to reject both sets was the unreliability of conic as claimed construction no doctors dr kaylor is the reason for excluding that data it was the following issue right now dr sherman and the district court cite for his testimony on that issue says there's absolutely no support for the has to prove that there was peer review of that data before it would be would be reliable and we thank you for putting aside for a moment dr killers reason which is disputed right just read this into the record because it's important what he was talking about is what happens after you take a sample and you find and you decide whether to refrigerate or freeze the cells he said and he says what you do with those cells and the data shows that unless you rapidly freeze the cells and that's what everybody in the field will ultimately do and it was on to say the very best ways to speak to stop metabolism is to freeze the cells and that's basically the standard in the field so let me summarize what i just said first of all dr taylor has reported her opinion i should say that the fact that there is some metabolism increase after free after thawing there is absolutely no support for that at all and he gave the second reason is that we had to point to peer review of their result that's what i just did doctors for that reason not alone but for that reason i suggest your honor that their data is reliable we should have been able to rely on that dr sherman should have been able to rely on it and the other reason that her his report was rejected based on speculation that was based on the work can and i corrected that with paragraph one fifty nine between the june tenth decision and dr sheerin three port to argue that he relied on the wrong report so let me address each of those briefly right the first was oxidizing can cannot be interpreted as doing nothing or to so there was no reason for him to revise his report based on that reason the second reason was that the active steps must occur in a claimed order meaning something before extraction something after extract try to explain when i have some additional time in fact g m c admits that oxygen causes oxidation dr taylor agrees with that and judge malloy if you look if you look at page  good morning your honor may please the court this case is about causation the federal circuit and the kingdom weigh decision decided that oxidation requires an active step that result oxidation the reason that the court correctly granted summary judgment is that conoco has not put forward any evidence zero evidence of causation there is no evidence that anything they put forward that there is a washing step whether or not that more than or less than what would have or occur in a passive state but it's not a question of fact for a jury they definitely demonstrated that oxidation has occurred as a at directly after the washing there is a significant input from your data so why isn't that enough to survive summary judgment because there's absolutely nothing that tells us why that oxidation is happening when you look at that data you see oxidation happening throughout the process not not just in the washing soda it happens throughout the process when you look at those while while that's true it happens throughout the process it's a really significant jump based on the evidence in your first study from eighty one percent to twenty six percent just during the washing phase and you don't see a similar percentage jump during any other phase of the process so why is i mean this is a fact question like why i don't why should i be deciding whether that the most significant jump in oxidation in your data directly after the washing step isn't at least a fact question as to whether the washing step is fair for causing the oxidation the answer is that this process takes days and days and dates and each one of the steps takes different judge moore's question with two things why are we deciding this why are we letting the jury decide this there's two reasons first the only thing that konica put forward as far as evidence is their expert report the judge in her discretion decided that that expert report has to be thrown out because it used the wrong plant construction that's number one ok so if we disagree with you on the claim construction then i got a result has been around for for throwing out the report i that's a problem we can't rely on the other evidence that doesn't work dr sherman has to describe the steps what that was was a clear admission that they have no other evidence of relative mission they have no other evidence it's theirs they're trying to persuade her not to exclude it because it leaves them without an expert when you've got an expert but their record contains evidence and the other i mean i really don't see how i can decide this fact question the nature the fact question is they've shown  washing is an active step in kurz you all presented a study that shows at least one study during that washing step there is this significant amount of oxidation that has occurred granted it varied from the first lady the second study but that's all fat nonsense that's cares why it does it doesn't result in oxidation there's no evidence that a result of let me try to explain it's it's just because it happens at the same time doesn't mean it happens because of one thing that i think maybe may or may not be clear speculated during this entire process all of this material this goop is sitting out in the air it's oxidizing all the time so it sits out for five or six or seven days and there's substantial oxidation sure the question is why sure is that throughout the entire process it's exposed to ambient air which has oxygen that is certainly causing oxidation what we don't know is whether these other things are causing oxidation this is a very very complex chemical reaction when you look at what happened  this to the jury but the problem is the jury then has to guess here's what the jury is being asked and this jury is not the guest because you're a smart guy you're going to put on evidence you're going to have an expert that's going to stand in front of them and explain them exactly how the process works my guess you are smart i'm referring to you don't keep pointing  yourself so you're also going to put on some evidence that shows if nothing was done for seven days and it sat in the open air it would oxidize from this present to this percent so obviously it's not the washing step that's doing it i mean you know this is is easy for you to offer for them to offer in the jury will figure out whether or not it's the washing step that does it but we don't have enough information to make that call the problem is rather they don't have any evidence they don't even have an expert when you look at the record the expert does not even causation look at paragraph one fifty nine they never cited that in their briefs but put that aside that's dealing with a different limitation in claim fifteen which is not an issue in this case that's not claimed twenty two it's not claimed thirty three and it has to do with an oxidation agent totally different addition so there's nothing in the two sections that the expert actually addresses claim twenty two and thirty three that address whether or not these steps cause accidents and there's only three paragraphs in each section and  all of them what the expert says is it may be cause oxidation it can cause oxidation it theoretically could cause oxidation and we agree and we also agree your honor that oxidation occurs but what we don't agree with is that there is any evidence that the jury could rely on to find that oxidation occurs as a result of these steps because there's so much going on in this chemical reaction the jury should be asked this question if they had some evidence before the jury that the jury could do anything other than guess here's what the jury's being asked look at this complex chemical reaction at the end of it it's all oxidized journal jury and why do you think that now i know you have the study that actually goes section by section through the process your study in other words just because oxidation is happening doesn't mean it's happening because it is a weary is free to reach that conclusion but there's nothing on which the jury could reach the conclusion either right is because if the jury puts together the fact that there are but i feel like the jury could conclude he did based on that it wasn't a smoking gun but he's covered in cookie you know why isn't that kind of like what we have here not positive nobody nobody saw for sure the washing step causing oxidation and maybe there's not a study in this record that demonstrates an equal amount of oxidation would have occurred in ambient air absent no activity maybe there could even be a study that shows in ambient air with no activity more oxidation would have occurred than occurred here in the water did result in oxidation that would have occurred because the parts of oxygen in water are less than in the ambient air maybe you could do all that would help you mr rosenthal maybe we could order the district court to reopen discovery with that help your case because then you can put all those studies that would help  h whether or not the washing step does cause it since i think that's a question of fact but you don't think it is so maybe there should be more discovery below so let me answer all three of those points first of all with respect to your cooki situation here is your kids have been eating cookies all day there's problems all of them you've seen meeting cookies all day the question is do the cookies out of that jar i don't know i know that they have crumbs but the jury is being asked to become one of the jar of the jurors circumstantial evidence are both in fact valuable evidence and the law makes no distinction between the two that is that we cannot discount circumstantial and i don't want you to discount circumstantial evidence but here's the problem the circumstantial evidence could be the result of two different things one of the i'm a certainly happening passive oxidation is happening throughout this process everybody agrees now we're also doing something and the question is is what we're doing also causing oxidation and the jury is asked that those orders stay in place of the cases remanded that they're not vacated or voided or mood see that's not the way i read that i've read that because she's really putting it in the same paragraph where the parties rights pursuant to rule fifty four remain intact so it seems to me that she is contemplating that that a the ability to appeal from that denial remains intact i think it may be that that's an interpretation you can have it doesn't matter in this case this was an abus discretion she granted that motion to exclude or did not grant the motion to compel i should say on that material i'm sorry time of the two thousand and fourteen test results that we allegedly have is that we're talking about the materials that you have and there's a motion for re trying to understand the history to asking that this be incorporated into this judgment that's not how i read that i read that is that these are remaining intact for subsequent appeal if there's ever a forecourt point at which it were relevant to a final judgment that it would be subject to appeal but in any event we're happy to end it on the merits if you think that it should be handled on the merits she ruled that something's untimely and there's no be some discretion thank you mr rosenthal is actually occurring i just go back to paragraph one fifty nine that you can read that's a scientific fact but he doesn't know i don't think that's a fair characterization of his statement at all he didn't say there's no proof oxidation is occurring he said there's no proof that it's the washing stuff that's causing it as opposed drying steps in the washed up after extraction those are included because you can't take the risk of you're going to end up with zero percent at the end of the process with passive oxidation you need those steps there to make of the process you end up at zero any industrial process could not take the risk of at the end you would end up with twenty five percent reduced and seventy five percent oxidized when you