of my colleagues but let me just begin with my first issue which is who all seem to be disputing whether the whether the whole the gap  i don't see anything in the trial court explanation that even explains to me whether the trial court thought the schrage to decrease susceptibility to the movement  apparatus was a functional requirement or simply a descriptive one that is to say does there have to be more than a gap in order to meet the what is the meaning of that element the claim is it a functional element or is it simply the requirement that there be a space and the to decrease susceptibility is sort of descriptive but not a in her baby quired function because there's almost no evidence as to what how big a hole we have to have to achieve that function but rather what do we do with all of that that's a terrible the patent is obvious because anybody would know is if they can himself as the expert for us us as he testified anybody would could tell you that if you have a hole in the foot as if you have a hole in the sail there would be a reduction of  right that is correct because the claim is estimated and then that estimated value was put into the bankruptcy plan which was then confer the claim is discharged and there is no means to litigate it further after the plan is so the last i understood was that other  she court did with regard to the patent dispute what's the consequences of that it will go back to the bankruptcy court and the plan the distributions that are to be paid under the plan will be modified according to the judgment that is issued in lot of the court of discretion standard a pause to claim estimation but there were clear errors in the amount of these that were awarded here the discrepancy between the contingency amount and then only about the inclusion of costs for acthar expert witness fees which this court says cannot be included in a two eighty f about this case the e m i below claimed that our contingency could not be a basis for award of attorneys that is in their pre hearing and as a result we presented evidence about a lodestar recover and compared it to other cases primarily arising out of the eastern district but also the southern district fees they we recover from our client what the basis of our contract with that so this money goes to the client and we get whatever our contract provides he five percent of one point four million dollars which ends up being right around here five hundred  payable out over five years we're receiving payments from them through this bankruptcy over about the last year and a half i would like to your honor i'm not planning to go over the hundred seventy pages or written briefs that you have in this case there are that trial even though it has all kinds of trappings we lost that battle emma we wanted a patent trial and the judge in the context of this bankruptcy proceeding which she was being told none of the remove the referral couldn't get we did get the referral removed in other words we got a hearing on the bankruptcy matter in the district court rather than the bankruptcy court the bankruptcy court had said to the to e m i you have to admit liability for it to stay here and i will determine damages and so they wouldn't admit liability and so he felt like it should go to a judge gilmore the district judg article three judge and then she gave us and they argued give each side two hours for this patent here in the patent trial she gave us a bit more than that but it was all in the context of a five zero to see won which i will point out is not an adversary hearing before the bankruptcy court and her discretion is very wide and your review if you should review this case is very limited to an abuse of discretion a stander under the bankruptcy rules on all points now it would be to me the me just and there for the moment because had questions like a punch of the evidence what is it you understand we should be expecting the trial judge to have done in this litigation or do we simply say we got a bankruptcy proceeding where all the evidence comes in we got very limited discovery there was no claim resolution we didn't have a marksman hearing at least a separate markman hearing and the judge said she collapsed into and frankly if you look at this record and particularly ask you to look at the pre hearing brief e m i there is no claim construction at all of this appeal has been about claim construction there is no plane construction dispute raised by him live below and now they're criticizing the district court judge for conducting this hearing into bankruptcy and not  she took their representation even though there was a factual dispute mr egan had said that they started filling them with silicone and put them but they also sent his children out in the field to fill held it out to sale and you are trying to design around them so that then i would say yes now i are also so you that you i'm doubting we are far more expert than i am the reason we had a bankruptcy lawyer was because i'm a trial and i don't profess to have back patent expertise of that nature that you're talking about so i'm giving you my response but with that i think what the judge is trying to ask you is in the course of and put on the market so if the caulking took place she hypoth hypothesizes before it was put out as a finished product then there wasn't that a gap it  matter under certain theories because his theory was that the gap was there too with the distribution of weight and that it had to actually close under load in order to not the in fri and that the cost would not prevent that but i fully acknowledge that i think there is a significant issue there in the on the facts of this case and with the very limited  discovery that we have we don't know how many of those went out how many were filled in the field and whatever our case was that they had made it and that they're going back later and they had advertise arguments for this elop that were never brought up a lot when again i would refer you to the year in brief where they say what the issues were they offered no definitions so they basically invite anyone could perceive that they invited these errors that they now complain about i would like to get to this point they misrepresent the central issue in the case and the claim language it is the susceptibility to movement of said apparatus it is very clear that the s apparatus is an individual foot it's not the platform as applied in the case but it's equally clear that the first are only limited to water air and what was the other one that was those and could go through those would be the things that could that would decrease and those were the only forces that were limited that were explained in that element in the pattern so the notion that other forces are involved was seems  inches it weighed twenty two pounds you you fully loaded the forces on a roof and the reason for this was that remember they didn't want to attack this apparatus to the roof because it would compromise the membrane of the roof and in all this in the record modern roofs are actually quite fragile in terms of that and so they reduced the the weight on fully loaded two pounds per square inch unloaded this the apparatus had a weight of the force on the roof of one point seven five ounces per square inch if this is not a child pushing across the great wall of china as  forged drawing showing one sixteenth that we went to trial would reduce the forces of a half inch of water on that route by just basically one half this was picked functional limitation as that manner but they didn't present any evidence we put on our expert they cross examined him there wasn't anything there i will also point out in the minutes left that there was no degree of limitation on the patent it wouldn't you just said it applied there was the fast date of sale there's this silly reference to the advice of counsel when the record showed would be held at seven hours that he had been a consultant in this case you know i of the bankruptcy claim and into ours its not easy to put on a full blown either attack or defense of the who to virtues in the scope of patents and yet you complaining that there wasn't a market here and we're not complaining about the seniors that were followed were complaining is that the district court judge got a lot wrong in construing the patent in finding willfulness and finding attorneys fees and under the bankruptcy claim estimation  shouldn't we treat this a little bit like we used to treat jury trials that is it comes up here in this particular context around the most as a black ops judgment and what our job is perhaps is to see if there's anything in the record that would provide support or the judge's decision rather than spend a lot of time trying to figure out the judge her opinion shouldn't we just sort of look at this and say is the record is there substantial evidence in the record to support her outcome would that be a fair way for us to look at it no because the  but it is not just eyeball the result and see if it seems like it's in the ballpark which by the way it's not when you have a one point four million dollar award on what is an underlying at best two hundred thousand dollars worth of damages very quickly i would like to say that we did raise the claim construction point point the court two were spared to seven hundred twenty three and twenty four of the appendix page eleven sixty two eleven sixty five through sixty six all of which show we raised the claim construction points that we are raising in this