indeed dr johnson alleged for the actual reductions to practice of the subject matter of count one and we referred to those in the cases johnson controls one to four right you can see that five is not an issue five is not a five is the only issue with expected by this shows diligence but it's not an issue in terms of reduction of records and all of these reductions to practice were prior to strax earliest alleged actual reduction in products and struc substantially the same as the testimony regarding johnson controls one of the four that came in the interference perceived that isn't by definition one of that one of the things that that one forty six contemplates is the ability for their trial court to make credibility even by hyatt day they don't express an overall winner and so how are we supposed to do anything other than follow winner by its own terms but it's the trigger for the noble the novo review that i think is the issue here and the standard  it's critical that there be conflicting evidence and to say that that just because somebody testified essentially the same thing that they testified to in the interference as a trigger for in favor of the legally irrelevant evidence and specifically the law with respect to the legal standard for determining when invention works for its intended purpose and the law the law is very clear on this that this can be established by evidence and testing that proves that the invention will perform satisfactorily in the intended functional setting correlating to the actual use of the of the in this case the control competition and the district court stated got the law but the board relied almost entirely on johnson's own assertion that he knew it would work well importantly the board looked at the actual evidence that test data from johnson controls one of the four which was over a sixty day time period where the control was tested day after day after day and importantly the board recognized that dr johnson with respect to johnson controls  the earliest two is using no control compositions he was using a fake complete lack of control which had the white blood cells in the five parts in it that was a commercial product that already was selling and he was combined that with a standalone ridiculous like control which was again a commercial product so that was their testimony that it in what intuit didn't work the testimony regarding it not working and didn't have to deal with johnson controls one to four it had to do he said in a report issued in december which is a couple months after the johnson controls when the four were tested and i'm quoting him have shown good ridiculous light recovery with no degradation of other parameters for about sixty days that's what he said that's it a eight hundred thirty seven and a twenty nine one thirty five that was a report of his shoot and then there's plenty of evidence in the record following that report which he then gave to his boss dr detwiler said the same thing and then from that report from dr detwiler went up to the upper management at r and d and from that point they decided to go forward with a new a feasibility study now the new evidence that came in in the district court case it was about business that the judge relied on was about business decisions that are in the made not to go forward with a commercial product that's a business decision but the district court looked at all all these different elements that you just painted and  corroborating the testing of johnson controls one to four and you keep talking about substantial evidence we're talking about two hundred forty six actually treating it as a trial do no try and i think you need to overcome  the presumptions in that case there was there was sufficient evidence to show by preponderance that johnson controls money for the reduced practice and there was to meet the court standard of independent the laboratory with him that's all chronicled in the in the agenda to the brief we had a couple of exhibits that showed all of that evidence so there was plenty of independent corroborating evidence for johnson controls one  let me go back to your business evidence you said that somehow the trial judge was allowed to consider that but in every case that that court can consider both direct and circumstantial evidence is a fact that they never made a business decision to use the integrated control at least circumstantial evidence that it's because it didn't work they did make a they didn't go forward with it it was just a number of years later just a number and then like the testimony while several years later eight or nine years rank but the test test was they were selling the controls the standalone control separately and they made a business decision that they would continue with the standalone controls separately thanks a lot of work nights and business decision but but the the trial court mean the determination that it it represented circumstantial evidence that that that business decision was made because the controls didn't work but we think that it was legal error for the court to do that in view of this court's decision in law ralph and d s l which talk about commercial considerations that happen after the reduction to practice not meaning that the earlier work wasn't considered a reduction to practice talking about later failures of a test of the invention but not in those cases only said was that in those particular cases that wasn't indicative that it didn't we didn't say that the court never could looking at the totality of the circumstances of my own that i think factor in an appropriate absolutely the court could consider that evidence but it doesn't disprove that johnson controls wonder for were actual reductions in brackets it wouldn't be the only thing that could disprove it i agree with you well and in this case it didn't show up because for  number of reasons one of which is that there is no evidence that the the later testing that was done was using the same materials as what was used in johnson controls one for me back to my earlier point that if you have one set evidence that shows the actual percentages  johnson's controls well the actual percentages of the materials are reported in the data that printed out from she for you know thirty days sixty days nine days and so on john's controls one for in terms of the what was in there right how do we know what if what's being printed out because one of the newer commercial products there are commercial products that aren't he was making you know dr johnson as anybody in the company would have known exactly what was in there and would have known what to expect when it came out of the machine and he got what he expected but there's no that's all there's work and there's no evidence is there in the record other than his saying i knew what was going to come out on the back and you don't have you don't have lab results you don't have no books you don't have anything that says this is what i put in these controls so that i could know what to measure on the back and we have testimony that what was used by dr johnson for example for johns controls one and two where the commercial products that aren't he was making hasn't we don't because it was one thousand nine hundred sixty you don't have that but anybody in the world of anybody in the world who would have known exactly what was in those controls it would have been dr johnson and the scientists in this lab because they made it and the com evidence that there was errors that there was interference there's no evidence that came in not of the board and there's no evidence that came in in the one forty six actually there's going to any new evidence that would contradict what the board found it would have been evidence that there was interference and then there's it's very clear in the record that if there is an error if there is interference then you can look at a scattered around to see the board was putting the burden on struck when it's when you're the one who is trying to claim the parent board found we met  because there were no errors we had testimony from dr simpson who was an expert and we had to challenge the his evaluation of those numbers that it was stable which is by the way what the council says and at that point the board said we haven't been clear rule what about the implications of the supreme court taking higher i don't think that's going to have any effect it shouldn't have any effect on the one hundred six cases if it does your honor we don't well we don't know whether it will or not the high case i mean i agree if we look at  important findings of fact three of them were that scatter graham analysis is necessary to determine if a control workforce into the purpose they also determined there was no proof from johnson that he actually knew what was in his formulations or that they even weren't and lastly for this purpose johnson did not even appreciate or recognize that his control tests were allegedly successful at the time to just so i'm clear on this you you did way any argument with respect to diligence cracked we we made the argument what exact way we make the argument that we did the same thing he heard all the facts from the day one there was evidence as to what we did he believed that the fact that we didn't have a machine we couldn't get a machine was an excuse we did not argue that we didn't bring it up he found the result not based on  products did not even work on the machine that johnson used to test and they knew it didn't work they had to redesign that control from the start because the city four thousand which was the instrument being tested was totally different one of them in the design to testify is totally different from a technology standpoint and he confirmed that the c b three k which is what they say is commercial didn't work on that product never did the trial court was the exact same evidence that was presented before the board for purposes of priority absolutely not and yourself so why did there seem to be evidence at the trial court that was not presented to the board  documents that had not been redacted right they had been redacted in the board they have been selected by wendy as attachments to decoration written right there is no right to get additional doctors there's no discovery to get interested but they read back to the information about the five deep from the from the board evidence not in the trouble so the big difference there we also had a big difference in in the scope of the examination we were not able to use any information that we had from the trial in the clearance in fact they move for sanctions against me because i asked the board if i could and they said no you're probably protective order of the trial by simply knowing these documents are there and so a there are several graphs twenty or thirty grass for each test and in these graphs you will see spread dots each dot representing a cell there hundreds of thousands of cell and the machines have algorithms that can take the characteristics that the machine measures like scatter fluorescents things like that they have something like twenty eight different printers they take it all that the strain a highly skilled doctor why does why do they need the visual depiction of what we're talking about we're talking about a control doctors typically don't get involved in my control these are for the technicians these controls are or they repeatedly can he essentially do a scatter gram in his head to understand whether it's working or not no you cannot do is got a gram in your head you know they talk about the numerical data mr janet quote numerical data for scary i'm just talking about computer science like that if you want to go through all that he said i guess you could but it's got to graham is a picture you can see what's going on that is required to determine whether there's interference or not interference can cause the total control failure if there's interference ok but it being with wired for purposes of the end user using the machine on a regular basis is that different from gets from the numbers that are given to him with the problem if they're the same then it's good he's not testing the control he's testing his instrument he's trying to time with his instrument is accurate on the other hand when no not with one you cannot tell you can tell at that instance it was doing something but you have to whether it was or not but you have to look at over a period of time he do instability is there any interference that causes a change or not at the beginning when you first start you can't just accept the first one you continue to test to see if there's a difference over time stability and interference or what it thing worst one showed no into first and we have all  disputed he didn't use it he said it's not necessary his technical expert says it's not necessary to determine whether it works for us into that purpose but on the other hand there are technical expert will say oh it's absolutely necessary if you're doing research early stages of research and development i ask their expert here are a set of early stages of research about right and this was the first time that dr johnson ever did this experiment ever looked at these controls and he said yes i said can you get any earlier than that he said none and i said was that true for all these test all for the time but he said y fact disputed facts there were before the board with all test or live testimony by the way i don't think and then that videotapes should overrule the winner guess it's a live testimony to the district court videotapes sent up to the patent office shouldn't overrule the work that's what he's trying to say the abandonment issues your honor they review a district court determination on something as important as abandonment when it's just dropped into a footnote without citations to the record to support it it is difficult your honor and and we frankly we don't need it is so clear that they did not prove a reduction in practice they did not prove appreciation contemporaneous appreciation at the time in fact they did stop using he he sent a memo out in october when he finished his test then said this project looks like it's falling through the cracks we have no plans to do any more testing no way six years later they still have that what testing not only that they didn't even mix up a combination for the fun of them they just didn't do it they didn't come out with a commercial product that is some evidence that the judge could consider as to what they really did or they also lost their records clear they are lost their biggest client happened because they did not have an integrated control  that was also there is evidence that they went to the market with a standalone control which they developed for that machine instead of going with this quote successful invention that  for the corroboration of the district court said or in these evidence consists mainly of the uncorroborated testimony of the inventor dr johnson that if we had a composition in the world it was a twenty seven in that the judge ignored evidence that independently corroborated the development the work on john's controls one before and that those were of the other scientists that were working in the lab and of the contemporaneous documents but again the only evidence other than dr johnson's testimony about what the controls were what the percentages in the controls were that there was no evidence except his testimony you just told me it's because it was our commercial product but but you know your opponent points out that there was testimony in the record that at least as to five relevant to what happened in one thousand nine hundred six we don't know all the facts about what happened later on and that's i think what the court was saying in the case in the rockies and also there's testimony in the one forty six action consistent by strikes on struck conducted and lots of them more than ten were failures you know earlier one succeeded and the later ones fail so this idea that just because it didn't work later in takes away that the earlier test was successful it doesn't fly given the evidence and it was it was it was an error by the court to take that position and in consider that it is to knock out the duction practice of john's for one are you giving up three and four and what i'm saying is doesn't that in other words ok so you don't have a response really to the fact that five d was a product they were prototypes but they were still controls that were made by dr johnson in other words he made in the lab so he would have known how much of the different i'm saying for purposes of you know we can focus on one until now and i haven't is that one to work i want to also want to respond to the issue of the question you asked about documents being able to come in the new york exhibits that were in the