misspoke on this heard that you would say they provided to cantor in two thousand and three i thought you know that it was reduced to practice in two thousand and three that was an a what evidence was provided that was what disclosure document that was provided to its counsel at the and then realized and then based on that believe that that wasn't the case that was in a privileged document privileged converse those are privileged documents were exchanged between the parties legal conclusion but that wasn't you know they didn't find it ready said it was his general practice to bring the proposal with him and he found receipts that showed he had been a dagger energy on a certain date and he had no recollection at that time of having provided diligence to find the records that would support he had trouble records that he was there they met with them they met with him on the date and mr winston is said that was one of his practices in the past the problem was the documents he had  two thousand and three letter was received by kantor a cantor attorney drafted a two page submission to the u s p t o of knowledge in the letter but but claiming it was irrelevant yes is it true that a cantor attorney crafted a two page mission to the u s p t o acknowledging the existence of a letter but i mean it was irrelevant not that what they did was they submitted a declaration saying submitting the proposal to the patent office and org and pointing out that it wasn't deliberate and the i'm talking about a draft that was never submitted to the us the draft was never submitted to the patent office  a draft it was created but they thought this was the easy the the most efficient way of achieving the fact that the proposal at that point was after the critical date and but still they presented the proposal to the patent office over that it was never filed with the patent when did cantor st see the august st two thousand and three e mail with the two july two thousand and three letter tach was at the deposition that was in the st with the with the actual e mail and where or mr kantor on mr winston s were asked by at least two sets of attorneys and the potential cleantech investor in two thousand and one for information regarding the on sale bar  than were not considered to be references in the sense of to the bat office they were considered to be conception documents showing conception of the invention and early working stages considered by whom oh by as as a pine bound by the experts by plaintiffs experts as well it was clearly thought that that was not that would could be it would be a relevant piece of prior art  i thought i believe the do you want because d the question of of these people doing these tests on these bench type centrifuges could not tell them whether this product could the only way they could do this was the test that the only way they could do is experiment with it the only way they can find out of work for its intended purpose was to go into an ethanol plant the character of the july isis test was using a  them going to the plant where they tested supposedly in july and saying hey if you'll sign an affidavit d saying we didn't offer this for sale then we'll give you some benefits and the response of the of the of of that plant saying no that's not true well up that they they honestly went to these people at this point in the middle of this morass of this lawsuit looking for people as witnesses because they honestly believe that it was an assailant and they were looking for assistance and nobody would ever was one alive when they had a benefit to walking away from not showing up as a witness for agra energy to say that was a benefit t said something of value to get cooperation because in the sense of of of of i understand your honor that this is a point with us melike suborning perjury no it smells like getting the truth because love testif law firm of patterson go on that weapon tyler i'm sure you were listening as your friend yes i was less do you have any clarifications regarding the legal or factual assertions your friend made i do response to the questions yes i thought you might the test document is cited in the record it witness writes that the june in july two thousand and three testing established four important points number one water separates the sli from from from the oil that's a key point number two the solids will not foul the center  se number three these tests lead them to believe it would work on a commercial basis and number four in the bar locky test report he labels it as the st discovery in two thousand and three mr the receipt of the st patent attorney prepares an opinion based they're representing to their st and nd patent attorney that they had a reduction to practice in in of before july th of two thousand and three so that's the st clarification the nd clarification is the  allowance without correcting a patently false declaration without clarifying and telling the patent examiner we were wrong we gave you false information about about that they of the transmetal and never correcting the two thousand and four feasibility testing representation that was in existence in all these patents and not asking you for cites of the record because my belief is that's exactly what they are and i think it's important you know the key there are several key findings by judge mckinney and  course we're here to determine whether their burden to show that he committed clear erin the facts and you can on this record i think one of the key findings by judge mckinney is quote material die documents related to the appendix that that is that is an overarching finding by the find refactor seeing the testimony of the inventors and the lawyers where you know honestly the the on sales are issues relive again and they claim that there was you know they were prevented from presenting evidence that is completely untrue there are too many record sites to advise the court where the inventor is and the lawyers really argued whether this was a commercial offer for sale or whether it was for an experiment whether it was reduced to practice or whether the tests were failures whether these documents were cumulative or relevant or immaterial the record is very clear all of that evidence was before the judge as the finder of fact he was sitting there observing the demeanor of the of the witnesses and he made very specific findings of fact on all of the fact factors he reiterates that this was a commercial offer for sale i think that's clear and i'd be happy to discuss those issues if you want to hear more about that he found specifically that there was a reduction to practice prior to the disclosure in august st two thousand and three he found that these were enabling disclosures prepared before that date he covered every one of the fact that that on the sale are for sale and then he went through the  the information that there was a patently false declaration that is per se materiality the feasibility test letter was per se material of their failure to disclose known record him information in the context of an on sale bar which this court has s particularly troublesome because the patent office has no fact finding ability and he has found all those factories he found intent and numerous specific findings relating to the to the to the inventors and specifically to the lawyers prosecuting and you had a rare case where the prosecuting lawyer was present in court and testified to his thought process and the judge rejected that testimony and the rejection is for good reasons that there is no contemporaneous document that reflects any question that this invention worked for its intended purpose and that it was reduced to practice there is a laundry list of statements by these inventors prior to the critical date we know this works on a commercial basis and all of their actions are consistent with that from them drafting an offer of the day after the july test to them and assembling a sales and marketing team to preparing a drawing that would be used for sales purposes with customers to driving and flying from georgia to minneapolis and then driving to litter in minnesota for the purpose to all of the evidence is completely consistent with that and the judge sitting as a fine refactor made specific findings and absent a clear error or abuse of discretion we submit that it should be upheld and with that decision being withheld which might to me which might have a with a possibility of being true is the claim that one of the inventors was mentally incompetent by the time he reached  testimony and i have no idea whether that true or not so there wasn't any evidence that's not true he had some physical ailments but i specifically asked him in my opening line of questions whether there was anything that would prevent him providing fruitful testimony he said no and one of the true things i think he say one of the only true things i think he said during the course of and there was no there was no evidence to support the other thing i have a question given cantor's con was anything referred to the bar and i'm not sure that's in the record but i'm assuming that that has happened thank you thank you honest thank you sophistication he specifically did not make a finding of specific intent to mislead the patent office by either of them which would have been essential under a theory since analysis and i would point out that when he you know my recollection of the the lawyers now moving to the lawyers the court never under the ohio will of one type standard we've talked about and there was sense ever asked or ever found that they believe these documents were word when i use the we're probably with the exception that the lay that i talked about with that the lay was caused by they were trying to get the facts from mr windsor this whole on the record you'll see was ill for a period of time during this this testimony period we had to hold up their positions for mont to while he was because he was too ill to testify that is in the record having said that your honor there is clearly under the ohio will would standard of materiality and an intent to see the panels what would be the and it's borne out by by me when you look at the way the judge characterizes it it makes it sound as if that's the only implication of it but he never makes a specific finding that it was that they knew it was material that they withheld it to deceive the patent office which is the requirement that gets you to the your theory sense standard of inequitable conduct st of all using the perfect example of the st patent issued they could have done that because they could have had a specific intent to proposal and they gave the declaration that it wasn't delivered now the proposal if you will if you read mr o'brien's testimony that proposal as he looked at it was for a test module not for the method of doing it and therefore he felt it was under plumtree clearly not a invalidating offer and believe that in part because there was no claim features shown in the offer other than the fact that they were going to send the test market what was that test module it had to be hooked up it had to be arranged so he didn't believe that that test module and that document within four corners was an invalidating reference but he still invited i think we ha