and it's an issue that can affect it particularly it would help me a lot if you could be an extremely short order forget for a minute the legal questions and go date by date with the matches that are at issue say what they were what happened between them starting a little bit with the exhibit and batches and the commercial batches but mostly focusing on new submit it was exhibit batches back in two thousand and thirteen eventually it got a complete and on file merck received notification of this and we filed the hatch waxman patent infringement case at that same time a meal had what they called a commercial batch size product that was a larger batch and these exhibit batches and you may have seen that in the briefing it's called the one fifty seven batch fifteen it was in two thousand and fifteen the exhibit batches were made in two thousand and thirteen when was the discovery or the discovery request you know i don't have the date right now but it would have happening it's not happening with breakneck speed so shortly after it little bit more than a week after they were ordered by the court by the district court to give us the one fifty seven batch they say ok forget forget that batch now that we have to give briefing one sixteen zero zero one batch and that's when they let us know about this and by the way will amend the enda and now we'll make our commercial sized batch a one hundred kilogram batch so what we have things start happening in breakneck speed the court orders them to give us any commercial sized batches that they produce in response to the f d a so they starting january to make this sixteen zero zero one batch they go through the first part of the process of making it which involves putting the different ingredients mixing them stirring the pot with different mixers and these are not this is not just mixing things lightly these are high speed blenders and industrial scale and they get to a point where the first part of the process is finished and that happens on january eleventh two thousand and sixteen and that's when they  or anything like that so this is now and be known to us in this period until january fourteenth their recent or this batch and on january fifteenth they actually remove another set of samples which are called the date for samples the sixteen zero zero one day for samples now i'm sorry that's on the fifteenth or even the fifteenth of january even though that's actually the fifth day of day one is the eleventh well i think i think they look at it in between you know and and that's what's called the day for let's call the day for the day for samples a day for samples and then by the way they've got data from those day for samples and submitted those to the f d a now  fifteenth also they proceeded and then they bottle some of the actually finished the entire process and put it in the actual bottles the spray bottles use a nasal spray and now all of this february after you know we thought we had gotten the phone and we needed some more samples say give us some more of your of your final but you made for the f d a now they have finished all the processing they still give us the day one samples again we have no idea that they haven't finished it at the same time they're producing documents to us the documents go down through march around march tenth the keep producing documents and there are some documents some batch records in february that indicate that the that the last data we know for sure they gave to the f d a we don't know what they've done since but they definitely gave data to the f d a from that day for samples but not from that sixteen zero zero one and not not did is because when they filed their response of rebuttal expert reports all of a sudden they have one expert that provided a report that actually used data and cited data from the sixteen discovery when when did this issues first so i'm a topic of a communications either between the parties or with the judge so we receive their rebuttal expert reports and all of a sudden we see that they have data that have been submitted fear from the day for samples which we never have gotten and we also see that they pretty sized are expert for opening the bottle because they gave us those samples from day one in actual bills food top foggles as opposed to a nasal spray and we say wait a minute why are they how do they have data from day four which they never gave us and you know this instead of we we didn't have how did they samples from that we didn't have for the day that and then they also why they criticizing our expert for opening the bottle with a screw top that's what they gave us and that made us promise to go back carefully through all their batch records that they had given us in march and say wait a minute they actually completed this production and actually put product in the nasal spray bottles which is the finished version of the product so we didn't move the cork was not truly outstanding  for example we had an emergency munchen on may ninth and that's on appendix page one twelfth airdrop one we had a second emergency motion on may saying the judge hey they've got something that is provided history were and they haven't given it to us but i mean i can i can actually do one better for that because in one of these pretrial hearings and we have the transcript of that which is in appendix one twenty eight  early in discovery and in fact back in december we had a court order specifically saying that they were to produce to us representative commercial batches sent to the f actually and we have an admission on that and that is actually if you look in the offended on page one sixteen paragraph twenty eight at the very bottom of the page and this is a stipulation they submitted to the courts or constitutes additional admission on january fifteenth two thousand and sixteen additional samples were drawn from the two hundred meter mixing tank and you will see that it refers to the the bachus one six zero zero one and on the very right hand column you will see all that is data from the testing the referred to on that paragraph think twenty eight of their stipulation and that to make sure that we have everything that we flexed data that's gone to the f d a but i think the patent aspect of this and i think the district court had some confusion here is that if you will look at the case law what's at issue here is that we're supposed to test the final product will it let me me let i doubt that that's what the case law says i think what the case law says is that you have to have evidence that shows what's in the final product doesn't say it has to be direct evidence i gathered that that at the core of what judge robinson did was to say it's late in the day if they have to give you something they didn't give you that may well be closer to the final product there is going to be a cost there's going to be a cost of the leg that is going to have to be testing you have to justify that cost i'm going to let you try to justify that cost at trial by showing me that there is good enough reason to think that testing the day one which you have had for a while is not really reliably indicative of what you would discover if you could test day four and the way and then she concludes you didn't show me that and therefore i'm i can draw a conclusion about the final product from the evidence we have which is the day one now why is there an case we're supposed to look at the finished product and that's the fairing case the fairing the watch and case there what we have is we have the patent you're supposed to determine what the final product would be and whether it would fit and under the patent that doesn't necessarily mean that you have to determine if by having the final product in hand and examining it there can be indirect evidence if it's good enough there can be but the indirect evidence cannot be an incomplete product and we do have a factual findings from the court here that she hair she heard the expert testimony and she did specifically hold and it's a factual finding that has not been disputed on appeal that additional and faster mixing does indeed cause offense to promote the conversion of the non infringing form of this active ingredient to the infringing form of the act so i do think when we have on the one hand a finding that says that if she finds that additional next or she believes the actually that says additional mixing does tend to promote the conversion to the infringing form what we have here is an intermediate that we know was mixed and that's by their own admission and but by their process records of the process records of jeanette mary that minutes and we know that's been substantial mixing after that point i don't understand how you can say to a patentee well too bad if you didn't have good enough evidence because we gave you something that was further processed in a way that the fact finding by the district court says that particular for the processing may have caused the conversion i mean frankly i don't see how we can prove that you wouldn't that this would not that this wouldn't matter how anybody could know it wouldn't matter when we do know that the additional m cause it and what we have is an incomplete product and this is i believe particularly problematic when we know that the finished product was sitting in their  incorrect because their actual process and remembering and the case what we have to look at with that matter under sanofi and absolutely would matter andersen over absolutely no no no i mean that isn't if they say sorry we're allowed to there you can actually see what's their master production records in their amended and he specifically says maximum box suspension time is not more than four days so even though they're saying they're briefing which is just during the argument well we're not going to hold it that's not really a process to hold it for four days there and us says they can hold it for four days that's why this particular batch was so relevant it's an undersea knowing yourself is relevant to the right  say the next one relevant day three you're exactly say the made one bad and they only held it one day and then they bottled it right that would be relevant but at the same time during amanda case during our trackman case if they had made other saying what you're saying here today but i'm a little confused by your brief because your brief reads as if it's framed as if you're saying the day one day there was some sort of intermediate product it's not the final product it's not the product according to the end spec have the discovery there is there is well i think there is something that led to a legal error because what we have we have an infringement case where what we examine is not the actual product but an intermediate now the reason that they won in the way they gave it to us is not even a product because let's assume they had actually hill killed him until day one but then gone through their bottling particle doing putting it in the bottle which includes more mixing that would have been a final product under a different version right because it would have done the hold only for one day instead of doing the whole four dollars but what they did here what they took out of in january two thousand and ten or eleven two thousand sixteen what they took out they didn't finish bottling that they just went into the va and pulled out an incomplete product that was never bought so that was you know an incomplete in process product we have never followed the final steps and in this case where the processing matters as to whether we have an infringement is let's take it let's take it as a general well the testimony all of that was in respect to what happens in the process of the product or the issue that the question is we can't prove it with you can't prove happened in this case unless we have their final problem is that what you just said i guess as i was coming into this this argument struck me as the core of the issue could you actually have i understand you would have one argument if what you said is science recognizes that there is no close reliable substitute for examining the end product it's not clear to me whether that's the situation to say that in general there is a tendency of mixing to promote conversion does not necessarily imply that the amount of mixing that they did between one and four and then the edition will mixing from four to the model that that would likely have any changing effect and the question is you were given an opportunity to prove that why wasn't judge robinson you know within her fact finding discretion and entitle to say you could have proved it but you didn't prove it and therefore i will infer  out they four and a from what we know about one because because it's inappropriate to render conclusion by the final product by looking at the intermediate and i'll explain why if we look at the fairing the watson case right in that case the rolls were live every verse because what happened there is the brand of company the patent t took an intermediate of the generic company and they tried to say prove infringement by looking at an intermediate it was there's no need to go to tie whether there is a link between that intermediate and the final product it especially a situation where you have a final product you test the final product to prove infringement to put us to put the patent team in a position where we have to with absolute specificity prove that the additional mixing in this particular instance would have cost conversion is a frankly believe an almost an impossibility because it's putting us in a position of having to say what would happen in this industrial process that we cannot replicate we do believe actually the fact that judge robinson found that additional mixing in this with this ingredient does tend to promote conversion actually shows us of what happens here is the processing level and degree matters we have a finding that says in  processing matters here and what we do know for a fact without anybody arguing against that is that what we had to test versus the finished product which under under glaxo under abbott under all the case law is what is supposed i'm sorry i did you was there any final thought here and shoot down there alan or me so there is what the this so called exhibit batches we talked about those were actually finished through and packaged but at the same time what we perspective all of the day one two three day for intermediates well the day for is an intermediate two it's a better intermediate right because it has received more mixing so it's closer to the final product it's certainly is there were three hearings where that was the topic that trying to tell her look we need to get this finished product to test it and if you look in fact where she said it's a fact of life that people don't always make the best decisions it would have been better for the is actually the closest in the product and what should be tested in the absence of that and because her order had said they were under an order to give us everything they used for the f d a and we didn't know that sixteen zero one day for samples had been used for the f d a but they didn't give us those were actually a better substitute than something that goes several steps before the final product i think we need the switch over to the other side now  because judge robinson the district court clearly found that there was no conversion no proof of conversion from m f a to m f and there was no clear error in the fact findings that testing  just a day once a day once and so he didn't have the day for sample or the sample that's correct here are so and i am i misunderstanding what it least i think the how i think of the core dispute here is the question is does it matter that they did not have the opportunity to test two samples that were closer to the final one of the final products that is permitted under the and  today for product and whether it matters that they didn't or whether judge robinson could find they had an opportunity to show that it mattered namely the difference between the day one sample and the two later samples they could have shown it they didn't show it and therefore it doesn't matter that they didn't have the second the second and third it doesn't matter that they didn't have the second and third that they for samples and the a one samples know why why why is that given that there is actually a finding that additional mixing and i tell me if i have the language wrong but because i think the language matters quite a lot here tends to cause more to inhance conversion if the language right i believe you're referring to is that a fourteen and the court did provide merck with opportunity at trial to attempt to show that the zero zero one a samples that there would have been some more compare them to the day one well it in the end and we're remembering it's march third they didn't even try and there and i'm sorry i just you tell me if i'm just miss focusing it seems to me if she said i will give you the opportunity to prove something that scientifically you cannot prove that's not much of an opportunity to tell me why science would have allowed them to prove that the mixing that of the sort that was going on as you moved from day one to day four and read you move from day four to the a samples why that could really have mattered how would they have done that they could have done testing with materials that they had they could have done testing with in samples that they had or samples but they might have made rectum the record doesn't reflect the kind of testing that that merck may have done to the what the record of lagniappe anything that they could have done the testing that they could have done would have been to take some of the samples that they had that they had they had day one samples on day four so in essence they had day four samples day for two and mixing how much how much did they know about the  with some i'm going to assume much smaller amount have replicated the duration and speed and i don't know whether it was intermittent or replicated the mixing that you did in the hundred gram volumes could they have replicated that in the smaller volumes that they had in a way that would allow the conclusion to be drawn as to what would what was actually happening in your larger volume they could have been should have tried they didn't do anything i will submit that they have done that even given that trial was six weeks later and expert reports are even prepare that changed your view on whether they could have done it the timing was was more than sufficient to permit it this testing could have happened as soon as june january twelfth when the samples were provided they had was not packaged because of the nature in which they got it it was in a screw top fall and they had the manufacturing specifications from the and so they knew that packaging would provide some additional mixing in the course of packaging so they had in their hands the information from which they would have known that the bulk day one material they had would be subject to some further mixing it was over because i just i don't know if this matters but as i understand it between day mixing is much much much much smaller than the first mixing from one to four there there can be to mix things if you go to day four before bottling so that you don't have to be to mexicans if there are two mixing i it just in terms of when they got the sealed little bottles and create one they knew that's not how it was going to go on to the c b s shelf so they may have known that when it puts when they're put into the spray bottles there's a bit of a dish in all mixing but may have thought that's really that's not going to be a lot but they didn't know about what might have been a much more meaningful amount of mixing in the day one day for process when when did they first learn or as far as the record tells us about the amount of mixing that took place between day one and day four they would have had that information by march the entirety of the problem here because remember everything else that merck argues comes before the boggling is not the finished product and so it is only that last bit of mixing that merck says makes all the difference in the world  in order to make a determination about the phase the finished product so on the assumption that the op the required determination is one about the finished product the question is how close to that did they have something version just one if it was one step away from what you could have to the to the finished product under the end of but it was two steps away in this particular instance if you could have one step from day following or you could have two steps day one then day for event following so in this in this instance what they had was two steps and what they had they tested and there was no conversion from m f a m in that product and they took no additional steps despite knowing from the district court that they would be given opportunities to make proof they offered nothing they made no effort they made no attempt at all to see if any further processing of the material they had would make any difference whatsoever and in fact their their expert said that his testimony was theoretical this was dr trout and attempt any tests on and the all system and that he had not considered that the chen reference and that sometimes agitation actually decreases nucleation doesn't increase it was also interesting here that so if there was conversion going on here over time the experts said it would be increasing and you would see more conversion over time and there was i believe a seven week gak or passage of time from the beginning of dr marquardt testing the end of dr mark for its testing and dr rogers said there was nothing indicating at all that there was any growth there was any increase nucleation there was any conversion going on here so the real world test is if this material was already converting on day one because because of the product converts then over the course of seven weeks one would have expected to see more and in fact there was nothing that dr roger saw and that was un marquardt didn't come back and say no i looked after seven weeks and in fact it was probably the reality of the situation is there is no conversion the samples were provided from the day one those samples were tested it was no effort by merck to do anything more with them but data was generated over an extended period of time and that's that testimony from dr rogers is at a two ninety eight specifications of the product that should be the same as if the shelf life is meaningful at two years and everyone demanding further conversion well if you if you have conversion of m f a to m f m you would expect that conversion to there has been some additional education education also escalates conversion to make the material that well there is the evidence is there is no conversion here and if the four day passage of time is a four day passage of time  there is no conversion on the three big m's to day one but the question is what when how do we know it was i think the way i heard the person the residing judge was when he was running the option that  on how could they possibly prove that they four was different from day one unless they can test new for when they are operating ceases over time an agitation you because it wasn't exactly the same as de forest so they would have they would have to do some mathematics and create a construct that said what we're doing has equal to what dave or we would look like if we  see was evidence that was something more than a theoretical argument that this might happen you said something before and maybe and i don't i didn't quite get it about  the underlying data that dr mark thought that in three of the seven samples that he that he tested he saw a conversion and dr rogers said he looked at additional samples taken over time and that he would have expected to see growth this in fact what dr marquardt was seeing was conversion and rogers was looking at what exactly underlying data from  analysis that when i don't single batch what happened to that batch over time i think the fifteen more minutes because i think you didn't at the twenty minutes to his fifteen minutes of the were these were sample preparations happening over time so in that sense all day one all day was right and what's at issue here as i understand it is that if there's early make additional mixing and mixing that occur and i were about to ask you about this about between day one and day four that zaps might have made a change that would change the trajectory into day forty three and fifty eight in one before and i hundred twenty two and seven hundred and thirty too and we don't know what that difference would have that the mixing on day fo day one and day four part i will i will find that cite for you i don't i don't i maybe you can even just describe it without giving this item if it is taking the samples from day one and mixing so that the material is designed to be a marginal so that what you test on day four is representative in case of the material that are used the term settling if there's anything that's happened is that a process is going on for the entire seventy two hours between day one my understanding is we're not just before you do the sample at our seventy eight it's just before you do the sampling on day four announce it i don't know a gentle stirring or a something more vigorous what would happen that that's one result that that could have happened and and judge robinson did not limit the proof that merck could offer in any way testing the day one samples would have been a very logical thing f further processing and testing they still had the exhibit batches they could have done some further testing with analysis with those she she did they could have made up their own samples and tried to show how that was providing informative information to the court the court the district court did not in any way did they did they have enough information about i guess they did their product read about how to do what they did they have enough information about how you made a one that in their own labs  production facilities they could have made one hundred gram batch of your product they could have made m f a they could have made it using the exact equipment and i think the parties experts agree that the exact equipment can matter but that's for an exact exact replication there was absolutely no effort to to generate any evidence at all to show just robinson that there was there was smoke here that should be pursued it was there was there was zero there was there was zero twenty fifth of may i believe was the last discovery conference where the court made clear that the trial would go forward the information was in mercs hands from early march and the information  eighty two at one the further representative commercial batches sent to the f b i and that day one samples satisfied that obligation samples of any further batches sent to the f d a your i gather you didn't actually send any patches to and i'm not aware of the material actually going to the f d a just data that was tested the data generated from testing amnio view it was fully aired in the district court was that the day one of the day for samples it's the same material it is the material that's going to be put in the bottles and sold mercs merck says that there was some further processing all that happened and they don't know what was making sure it was uniform prototypes family another way to say that is you agree that there were some further processing you agree have you disagree about the potential significance of that but was whether you know what you called just imagine the sation and whatever else takes place as you put it into the little the little spray bottles so there is a difference the only question is whether it's of a significance and now this right been into a dispute in front of judge robinson there was this kind of what do we do now question about scientific uncertainty about whether this mattered or not and a looming trial deadline and enjoy a drop in soon did what district judges are empowered to do she can manage the discovery process and the trial process she was clearly very aware of the competing considerations and prejudices to both parties and if you can can i ask you if you know in the middle of the trial the way judge clevenger was talking about or even on may twenty fifth  had said ok you've got to give him the day for samples and the day for samples at that point would have been a hundred and twenty four samples or something then you know and what then would have had to have been for the parties to prepare two if it's through expert reports or further testing or something to assess the significance of this new batch i don't think that was discussed specifically with the district court but the expectation would be that both parties experts might then do some further testing prepare some further expert reports and did both parties agree that that process would have taken such time as necessitated a delay and i tried i think that and that the district court and both parties contemplated that the trial could not go forward on the schedule that was in place at that point in time and  led to the discussion where judge robinson said we're going to keep the trial they were going to go forward with the evidence we have now but i'm going to give you mark every opportunity leading more trial time if necessary to show me why this is not relevant evidence for me to decide the case on because the district court wanted to be sure that she was very very comfortable that the case she was deciding was case that was representative amulets product and after listening to the experts for two days every airing of all the issues the district court a fact findings not subject to any clearer that in fact she was trying and deciding the right case and that she had the relevant evidence knowing that the old one a samples had been out there and hadn't been provided to him or the district court's fact findings on those issues after listening to the experts for both sides were not clearly erroneous and for that reason the judgment should be affirmed i want to ask you a question going back to something we were just talking about ok i assume you have a lot of an experience i'm hoping you can help me with this is a basic question which is just that from the perspective of the f and looking at that and the application have considered the day before batch being a different batch and today one batch i think it would not have considered it to be a different  think the reason for the testing was the f d a wanted to see that the day one and day four material shared a common characteristics so that the possibility that the product could be held for showing we want to make sure your products not changing significantly over those four days but was there any focus on the question of conversion from m f a to m f m that i can imagine and then just it seems to me the f d a could request that day for to specifically said we want this test because we want to make sure there is no conversion but been had the care business to move from the f d a should care if there's conversion and in fact be the product that's being sold as is a product that the f d a is content is m f a and not m f m now i don't know what all the back and forth is after the product manufacturing is over residents of that if that's right then it seems that the fact that the f d a wanted this testing and should care about very patent issues that we're talking about suggests that it was perhaps inappropriately presumptuous for you to think that they didn't meet the other side murk didn't really need to see day four because it might actually be relevant to an issue that both the patent inquiry and the f represent was a m s a not and that and products of the f d a cared that there wasn't going to be conversion in the to your life they would have cared if they thought it was a concern but there was no evidence that there was any concern at any point in time during the process that's effective had come and said we're concerned about conversion please do a test to make sure there's no conversion that would've been a very different circumstance in the case we have the case was you can hold your in the appendix to one nine seven i believe those that table that we can't talk about the details of those are the kind of characteristics that need to be checked or something that's right page yes ok can i ask is this as to suppose that we thought in the writing of our opinion that it would be extremely useful to be able to quote refer to this is stop so as to be able to test day four and day four model but they did not bring forward that test and they they they brought forth i could be fair they brought forth expert testimony on serious well that's right but they you're right samples were never put in place they try to make the legal argument i think you know the glaxo case and other cases make clear that so long as you considering the relevant evidence there's no action to say well if we have to we have to walk through  about the evidence they did present which they sort of walked away from that evidence today saying they can't prove anything but at trial they tried to prove the evidence they had on the zero one day one samples was showing conversion to the judge robins found no conversion that's a clear error standard on appeal but this issue of the old one a samples that's an abuse of discretion that's that's classic discovery and docket management and judge robinson drew a very fair line understanding the impact on both parties here and had the trial go forward but gave mark every opportunity to provide the information that would i think i'm actually going to stick to five let me let me start with what i notice is one concern you have which is whether merck has ever actually asked for this final product and of course we had and if you would turn to page seventy nine of the joint appendix there's a court order in another instance ordering a meal to produce things to us and it reproduces a production request fifteen's which cover samples it's unfair got five on the top of appendix page seventy nine manufactured in accordance with the procedures for meals and products that would have covered the sixteen only one a samples that were given to us not i'm from a little bit you know we're here talking whether merck should they're talking about whether merck to actually make a product example on on the june seventh pretrial conference we specifically told her and that's on vi one eighty nine during the pretrial offer conference we told her that the case is supposed to be up on the product they're seeking approval from the a for and even in the post trial briefing we kept emphasizing and then the case is about is supposed to be about the actual product and let me go back to what the law is and kind of the last question about whether is this an abuse of discretion of this illegal where you are correct a judge gets to make calls on discovery and those are subject to abuse of consideration what's in it in effect is not the product in order to determine or not determine whether it infringes is legal there and i want to go back to fairing which is the closest case from this court and it is varying the watch and wat an ultimate judgment that's based upon a determination of infringement on infringement that's not based on the product if i don't agree with you that day one was an intermediate don't you still have an argument because you could still are here me yes but  need to be able to look at before because even if they want to infringe pay for current in french exactly in anaemic i'm very glad you brought that up because there were some some points made that they for isn't that different is just four days in the mixing is just stirring it up the meeting is very won't be it's a summary exhibit that's based on their confidential information so i gave can you submit it and confer with counsel the other side about whether appropriate completeness of submissions is learn you knew about this early on you could have replicated that in your own way and i'm glad you mentioned that so that's about what i was getting ready to go to we actually can't replicate their industrial process for one we don't have one hundred clear kilograms of the material for another matter it matters a lot in this exactly for example the shape the material of the container the shape of the impaler that does the agitation all of this matters there are chemical engineers that spend their lives to make sure these processes are specifically precise for example when the f d a approves a product to come out of a certain facility you can't change a little piece of equipment without getting approval and that's exactly because these processes change you can't just do them in somebody else's equipment on and with other materials in a different place and in fact there's an rebutted testimony on this from merck's chemical engineer expert professor m exactly correct there was the fact that she found we actually prove that additional mixing causes it is it is a great result and we really can't have anything more than that but there's no way we can actually recreate what they do in their plant with their machines and that's the exact problem we could try to take all this off and by the way you're exactly right had we done it and that would have been correct it would have criticized every little thing we did it would have led to another he wasn't sure i remember somebody heard so she said your third one of this was scientific by the way if we had tried to reproduce the entire process which is pretty much impossible somewhere else that would still be theoretical because everything in that process would not match what happened to the actual and that you didn't you could have done stuff to do that asked to me to reach that level which you didn't do you keep keep in mind we're talking about recreating stuff in a mostly we're talking about recreating an industrial process so finding a planting can be done this is not something that you just undertake willy nilly we're not talking about just taking the bottle because that doesn't recreate their process we're talking about running an entire industrial process in a plant opinion is that increased mixing its vigorous attention significantly causes conversion eight right but there is there is a substantial gap between couldn't reproduce the just real process and couldn't produce couldn't undertake a variety of experiments that would tend to be suggestive would point in a direction that would tell you we really do have to have the actual sample keep in mind that we're talking literally as trial is coming up and this simplest thing frankly would have been if that's right but but but but by the time this came up the simplest thing was no longer an option because they didn't do what they should have done in january and that's the point that i think that matters when judge and judge robinson had to deal with that that's correct and sometimes of it as you know  tested and somehow then that we end up testing an intermediate which i do believe and the law of this circuit is that shouldn't be what the bridgeman opinion is the decision is based on and then what we end