apple has before in a little of six cases three are being submitted on the breeze later today without the benefit of oral argument on the three cases or arnold vs federal deposit insurance corporation appeal two thousand seven hundred thirty three zero four kuykendall versus office of personnel management appeal two thousand and seven that's thirty three twenty and now manco versus united peals thirteen ninety nine from two thousand and seven and ten eighty one from two thousand and eight mr nader looking good morning to you welcome to the court please proceed the workers are lucky to have specific well for instance viscerally only never said in his declaration and his position makes special that he thought it was devised so therefore it has to be a clearly erroneous finding of fact to say that he did so representation of where it came from and told where the eye falls product literature so it was very clear from ok so for those two reasons you say that the finding was clearly rooms but what about the other front with mr it's official basis to find that fact the issue is the fact the station does not have to pass a bill and there is a per se rule that a false of the and the m p e have two requirements to advance and the requirements are that the applicant has done a rigid comparison of the made a false statement was made that a part was done when in fact it did and the examiner was relying on that in order to expedite the application we know that because the findings the made by the district court here relating to the trade show couldn't possibly have weighed in the decision of whether to make special or not that that they somehow outlawed you may not consider whatnot said that they believe that the other side had slave usually copied and had so carefully inspected your client's invention and sleeve usually copied every jot and tittle of it  absolutely like a flat anticipations if they'd made that argument wouldn't they have been whispering or sending a little news to the examiner saying there's a secondary consideration here favoring our patent as being obvious because they had to slave usually copy made it absolutely false statement with regard to secondary considerations i said in the examiner you know here on the secondary consideration that way in favor of my patent being not obvious just in case you find  construction or not that some sub issue it says have stipulated that the case the whole case stands or falls on claim or whole takes now there has to have been a stipulation to that effect if somebody was going to admit now maybe you maybe you admitted the wrong thing maybe when you wrote and the answer to the question thirty seven you wrote true you should have written true for purposes  been more clear but of course as it stands it's a concession that claim one governs the case the case all issues in the case i don't believe that  look at this is a wrote this finding of fact and they say the two parties have stipulated that lawyers language means that they got together in a room or on the telephone and they discussed as the big and they rogers this case is controlled by general electro digital this case terrorized by scanners false declarations and a petition to make special  to have to say write the words so the question then is does rick does it when you say i'm a terrific comparison does that mean that you necessarily must have observed the accused divines you can answer that b no show me in there were you said today cop a feature you might have been totally unaware of copying actually intentionally using the same features not accidentally or independent and using in the record that he didn't take notes or wasn't there or the notes were copious he used your kind of testify here about what the real facts were we this is not a trial this is a court of appeals where we're reviewing a record and you're not giving us any help because you're not showing us where in the record is any foundation for all the arguments and assertions that you're making here  said because in that case the court had not drawn all the inference is favorable to the applicant that they could have done so there are inferences that can be drawn from the data points of the declaration and what the lawyer said and the question is have you drawn both sets of inferences and then decided what is correct and you told us a minute ago with regard to the lawyer's affidavit that you could fairly infer from him saying that he made the rigid comparison that he didn't need to have personally inspected the device in order to do that there's the circumstances it's for the truth of isn't sir isn't it possible that this is an issue on which you could draw two inferences i don't think so in this kind of thing your honor absolutely not and i also don't think it's correct that there's anything that c here in order for your view to prevail don't you have to point to that testimony you told me that everybody knows it open this claim means that the thing is busted your honor that's not a matter for experts like claimants or patients or that and since there was such a definition to presented at the trial court to be concerned i thought the other side presented their side of the case to say we believe it when we said open display we simply mounted the product was not locked up in the one who decides whether a petition to make special shall be granted or is it a different official in the past and all so far as i'm aware i don't think you're correct about to i think if you check to find out it's a different official and then once he makes the decision or he makes the decision it's sent to an examiner either for an expedited examination or if the position is denied for examination in due course i don't understand how you can stand there and say oh the examiner was misled the relevant official was misled and there's no evidence that anybody was misled now the requires her to consider the read anything about the petition to make special examiners supposed to do its job when readers of file and part of the file when it includes evidence of alleged stopping like this section twenty one forty one says it s statements for the petition it actually each spot will say what evidence he was relying on the answer every case and certainly in the case of all the independent crimes which you just have to show you one is definitely fresh this is  documentation about our system was wrong everything that we said our system was wrong and in fact an activist there expert