supplier the key fact which neither party disputes is that one purchase order occurred before the critical date for the two hundred and seven patents and the other was from after we know which batch of traps said that it retains in a cage samples from each of those orders and in fact said that it was able to distinguish between the orders and was able to explain that later ship could have come from to its customers could have come from either order but p c never came forward with any evidence that would have links the product as reverse engineered to either order but but it is true that in your complaint you accused all the traps from all orders of entrenchment did you not your honor fundamentally the only thing of plaintiffs can do is reverse engineer a product the determining which products are consistent with that theory of infringement that is a burden that both parties under the under the under the proper standard share equally if you didn't have the opportunity forward with these purchase orders and said well all of these must have been the same and therefore your patent is invalid and what so some of the conductor did was wait for p three to prove up its defense to come forward with either evidence showing that the product that was reverse engineer came from the st batch or that the l e d components as they exist answer to the question is that you did not do you had the opportunity to do the discovery but you chose not to do it well yes your honor we had the opportunity to prove up infringement declarations from representatives of p three and which they assert that the two batches of the bug traps were identical so why isn't that sufficient to some of the products at least were sold prior to the critical date well the fundamental question is whether the evidence the p three has conferred is sufficient to raise clear and convincing evidence statements is inconsistent with the record and is inconsistent with the deposition testimony so the records that the two orders were placed and each of the orders that p three put into evidence said that the supplier was permitted to make changes to the products so long as the function and quality would be the same or better as what had been provided pretty previously so there's no evidence in the record to structures are microscopic they are on the order of a millimeter on the side you can look at the outside surface and see that they are the same so the question is was there any basis any foundation for mr  to provide any testimony that the samples were the same that the products were the same and i question him on that and he was not able to put forward any evidence in his deposition other than the order form which itself said changes could be made and that appendix pages forty six to forty eight dollars that that was clear testimony that disclaimed any knowledge of the relevant features and i also deposed mr kraus the c e o of the company and he said i neither of them ever said anybody looked inside the products looked at the l e d s or did anything to compare them to so all they did was say they have an independent belief that the products would remain the same but in doing so they did they are inconsistent with the undisputed record which is that the supplier could make changes in addition we put into evidence information that l e d's are constantly changing and w then you would take the risk that you wouldn't be able to prove infringement with respect to any of your own or what you're asking us to do is it is precisely what the district court to was to try to distinguish between the prior art and the accused infringing product and what the gist of court said is what we did wrong was being indiscriminate not discriminating between the prior art and the accused product and that that is flipping the reliable evidence to show that they are the same they cannot just assume that components remain the same and the fundamental issue that you're arriving at is well what happens if some of the products that are included in a royalty base later on are inconsistent with the infringement allegations the infringement allegations are only ever about the test samples that are tested we have no basis no no ability to exclude or include anything without information from the defendant and if the defendant wants to come forward and say well these products are different they are inconsistent with your infringement allegations and therefore do not infringe then of course we would analyze that information and determine what what what steps to take against p three did not come forward with any evidence to show that they were the same but that is evidence that they were similar are that they were identical that's that was the contention and you doesn't seem like you came up with anything to the contrary but your honor this is a summary judgment issue that's precisely the point your honor is we put forward evidence that neither of the witnesses had any ability or foundation to testify for the facts they were stating it cannot be the  testimony where the witnesses say well of course i didn't know i never looked but i feel like it probably is if that's the fish and to allow summary judgment of invalidity under the clearance convincing evidence standard well your honor that inconsistent with i for i the burden to establish invalidity is inconsistent with the supreme court's standard for summary judgment which says the movie party must st come forward with not just fictional evidence but actual evidence to support the theory that it's that it's providing and i i i find it difficult to to to to rationalize this idea that one somebody says i don't know and mr kraus said it clearly if there was a different structure i wouldn't know that's that's his sworn testimony under oath  if he then said in a declaration i do know well how how how can you look at the former and say well i can discount that and believe the latter i believe  that seems fundamentally inconsistent with summary judgment practice i also believe you are does that all of this is inconsistent with what this court has done in any prior cases that's and then more and  honor thank you very much in both of those cases there was admissible evidence showing that the products were the same and not just the products as a whole but the relevant components suggestion and again there the product was a court that there was no suggestion that the defendant could have merely said well we sold corvettes in the past and therefore it is enough for me to say we sold corvette instead they had to link the reverse flow cooling engine that was accused of infringement with the one that was sold prior to the big political bait and that was done that's also i would also say this you are going back to your prior question comparing and saying they were identical hasta be it least at this point if there's nothing more than a naked conclusion that's expert testimony that opinion saying that the layers of the l e d internally when you open them up are the same without ever looking inside there may be an expert who can make that conclusion that cannot be what  visible to the human eye so what he was doing was he was just providing naked testimony saying i personally believe without support that they're the same accuses all products of being the same and and that of them since all products are being a huge they're making the representation that they're all the same and there's no reason not to believe that they're get representative of all products that that was correct that these are also shell products that just are materially identical to each other just because they're fac they had they the record as to whether the items when they were stored in your client's warehouse or whatever were segregated by shipment are where they just all mixed together so far as but you knew that when there was a close shipment of the shipping documents affixed to it you knew what shipment those products right so when they arrived presumably obviously you knew which it was which my question is once they arrived and they were stocked in the warehouse i assume they were they were stocked not in the original packaging that arrived from china but were stock to some other form was there and is there any indication of  i think here there's nothing in this record about testing or p three s and ability to seek evidence matching up the products that's just something that's been at issue here we did produce there was no issue with trade secrets that had to do with whether certain testing methods should appear in the public record we did describe them as scanning electron microscope images tunning electron microscope tunneling electron transmission electron microscope images we explained what testing was done the issue was there was a witness who had difficulty explaining all of the details of how that testing was done and that is what it is we would have provided in the in from the information in detail it just is a distraction at this point in my view your honor what fundamentally comes up now is this idea of identity  diocese necessarily treated all products as identical and there's a fundamental misunderstanding of how this works also viruses can do based del valley concede it from the outside it's not possible for the hyacinths to distinguish between one or the other the only party that had any ability to access that information and the party that should have come forward with the evidence was p three and it chose not to and that's the fundamental unfairness of how this played out the the district court judge said you could have done the testing and that true she she is correct so by is this could have but fundamentally that shifts the burden to sold biases to disprove and incomplete and validity theory that's not how this is supposed to work did you ask them to a defense exists you must come forward with some evidence now whether they have to do all the testing or a part of the testing or at least open up the device and see if even from a microscope an optical microscope which many of us can by they look identical there are things that they could have done that p three chose not to they provided no evidence and that's the issue and for the court if it were to do so to say sole diocese should have gone forward to this group the theory that was never proved in the st instance that is fundamentally inconsistent with how i understand patent litigation to work we start with infringement allegations they come forward with invalidity allegations and eventually down the road we get to damages and damages are always assessed on what products are consistent with the infringement theory not all caulking gun and fringe it was caulking guns having specific features and that's what's missing from the record here and one more thing and p a p three council went back to this theory is not the basis of my decision that was in the the rehearing decision and she said no there any further questions and my question