next argument is in a pill twelve thirty one wesley in company versus department of the army that we have come down to essentially is a case where this court remanded to the road we believe the board made material areas of law and mixed questions of law in communal slept in the wrong state or to apply your honor is correct that the words decision does not say we are applying a clear and convincing standard to this case they clearly say they're applying to ponder it's of the evidence standard but we believe in the application they look for additional evidence that was not required under the preponderance of the isle i arst you know what you're saying who was how do you infer that they  to you because although you establish to propounder ince you didn't establish a higher level of proof such as clear and convincing where do you get that but we get it from and the one thing that as one of if you could show a legal error there's no deference on a legal error issue and so you have an easier time winning correspondingly if the alleged errors are factual there's a very high level of deference that we're  actually require we have no choice to go to for so if there is a legal error and that's reviewable without deference very important to get that clearly and focus that's why i'm asking you how  infer that they applied an incorrect standard such as clear and convincing evidence because i believe it's implicit from the fact of the evidence they considered and did not consider it's not a direct order what do you mean considered not considered so are you saying they didn't mention it so therefore i conclude they didn't even way it they didn't even considered they didn't even look at it is that weird yes i think it's a rebuttable presumption that the board considered all of the evidence and the point that we were trying to highlight is the bird itself it would involve its it's up directly in colloquy with witnesses that ask the ticket or questions to ask questions on cross examination before i was able to ask the same questions i intended on cross examination but the record is absolutely silent as to that testimony that was a deuced what's a bridge of contract here and what's the evidence of the evidence of breach of contract ultimately devolves to the point that you have a patent by calabash that has the same material features as the wesleyan concept of the fis flex you also have a patent by your client right that is hundred eighty five as in those features not all one of the key features as our patent attorney testified was that the camelback has a shut off the wesleyan prototype that was delivered to the army even as the board found ag had a shut off and wants to bring to again we believe that this is certainly a circumstantial case we're not going to disagree with that that the breach is at that either intentionally or negligently the army disclosed our proprietary concept and the beneficent the ultimate beneficiary of that was camera what's the evidence of that is the evidence of the disclosure of features in it that i was reading is your client walked in and saw our product opened up and there was a ten that was part of the that's right that's right the berber allowed on the bed evaluated all of this so that really you know that they didn't evaluate that particular evidence that was one of the points when they didn't comment on it correct they did not comment on the decision and we're saying that yes we completely understand the presumption but when you have so much evidence that was a do so by the court and they did not refer to it even as a footnote even though the government says well the the the board assess the credibility of the witnesses there's no statement in the decision that the board assess the credibility of the witnesses the judge allowed him to his credit he allowed in the testimony from mr schneider was liam's president that he had been taught by mr miller of mine safety appliances where it met with mr snow at natick labs the original project manager of the army intends to quote unquote knock off the wesley and robert which snyder then in a series of questions asked by the now to answer you and part of apologize if i'm being oblique but i'm trying to get the board's point that they try to raise on this they try to make the argument that the shut off valve was intuitive anyone would have put a shot off out on to one of these devices in fact the testimony from mr schneider was i never had a shut off valve in my original concept in fact when it was tested by the sensors in the field the army recommended back to me that it would shut off valve and because of the salt it was lying down wearing a gas mask the water would continue to come out to continue to dribble so as mr erickson the patent attorney for wesley and testified and as the board said it's out there was no ex patent expertise before but there was mr erickson he testified that the shock out in and of itself was not necessarily intuitive when you're just trying to understand what really happened because it's not been our experience that despite the testimony about knocking it off that this is a pattern of behavior it seems and i think it's not really disputed that despite reservation for private terry writes let us assume it was a valid reservation that by accepting the samples that that educated to that reservation here after the passage of some t their expiration of patents which would not have been infringed even if they hadn't expired trying to figure out whether they were is either inadvertent do a deliberate wrong doing is difficult and particularly because the details of the wesleyan device were published in wesley in patent the third they were public knowledge i think that the law is that if you learn and as i alluded to a little bit earlier judge freeman beat me to the punch and asked him questions about that particular process is it somehow reversible error the judge friedman asked questions or anticipated things you were going to say no he said telling her that i couldn't understand what your point was that somehow the proceedings a reversible because the judge was very active been in eliciting evidence now that's that was my point my point was where you have a series of involvement by the board or the judge in the testimony in gathering the evidence and none of that appears in the decision i think you rebut the presumption that the judge considered all the evidence before especially where he had directly a deuced that testimony and read and response to your honor if we follow the logic of what you're saying then if there is a trial where when there are six hundred bits of evidence and ten of them are left out it's reversible depends on material that bit of evidence is yes well it's because i don't know of any case well support for such a rule i don't believe the case law are all due respect would allow or if i could just finish in response to judge dumas point i realize i am in my bottle i will restore revoke time you need to worry about that and certainly better respond thank you thank you i would have assumed that the army at his post hearing briefs would have come back with some evidence some evidence a piece of paper a slip a tag a receipt saying here is the evidence that support recordkeeping system there is nothing in the record that supports that there is nothing in the record that supports that and the second point i have your honor on the camelback patent the army early on in this litigation decided camelback how they originated those patents and the patents i'm talking about are the two thousand and five and two thousand and six pacts which had the n b c compliant to back the two that runs from the water reservoir to the gas mask that was the original wesleyan concept there is nothing in the record explaining from counted back of it came to be well him back does not have a burden in this case we didn't introduce camelback to this case the army did and one of our points is in response to the government's position when you seem to be saying evidence is count by reducing that the government's request was weak how does that affect the reversibility of the board decision the board decision basically as i read it is you were unable to prove elements of your case that your theory was that the government prove that it happened and therefore you have to lose because the burden of proof is on you i mean you could read into that i appreciate that i think that what you read into that is the order was saying that a lot of the evidence in our case is circumstantial and i do not disagree it's circumstantial but when you have an army witness testify of almost ten years of contacts between the army and callup act to develop a hydration system at least the board should have considered whether that was material evidence and either handle it accepted it disregarded it weighed it did something with it and then the army people could have talked a count back every day but that would be proved in any of those conversations they provided secret information that they had under restrictions from your client it doesn't directly prove that as i said you know that indirectly prove it either i would respectfully disagree of the patent has all those similarities if the patent is the same concept i mean there is a corporation like camelback does not make decisions to enter a market or come up with a new product by itself you have snyder who was a small inventor you have camelback which became a fairly large company  prove the tribunal said you didn't prove it there's a lot of evidence in various directions to my initial reading and the fact finder said the evidence favorable to your theory fell far short of proving your theory therefore you have to lose because you have the burden of proof now when we look at that evidence we can't reverse unless we say that the less we conclude that the evidence supporting the board decision was less than substantial look to me like there was evidence going in all kinds of different directions the board could have come out with almost any  conclusion and it probably wouldn't be reversible here because it would be supported by substantial lead but but i would argue that it was more substantial out on our side and if the if the board had considered that that's not the standard if there's substantial evidence supporting your case and there's substantial evidence supporting the other side's case but your evidence is stronger you still look because if the fact finders decision is honor if if you go back to the court's decision in two thousand and six the court spelled out some detail what had to be shown what had to be shown was that there was clearly this is a case of failure of proof this is therefore a case where in order to win the petitioner would have had to have to do some proof that they did i'm just asking you to give me some examples the strongest examples of what it is that they needed to put on the evidence or read table in order to win that they didn't put on the table example one your honor is that there was no proof that there was an actual disclosure of some sort of information that the army gleaned from was the end to a third party that the fact that there was no disclosure as is first and foremost the problem though is what i don't understand what you mean by that that there would have to be direct testimony that either witness was there when the knitted lab guy told the camelback guy hero here's all the secret information meet of course that would be very dramatic evidence but you can't be saying that that kind of evidence is required or the complaining party has to lose you are we are not saying that the board could not look at circumstantial evidence to reach its conclusion the board did look at circumstantial evidence to reach its conclusion it and it analyzed the claim about the reports that were submitted the letters from i'll see it go over the suppose a disclosure took our back it looked at all of the circumstantial evidence presented by wesley and and said you didn't convince us from that evidence we are not going to draw the inference from that evidence based on  is what additional evidence would just barely tilt the scale the other way not what's the slam dunk green case that no more ever actually sees it it's difficult to speculate there are about evidence that wasn't in the record that wasn't presented in that there is no proof of what might or might not have tilt the scales in this particular case but i didn't speculate of i'm asking you to speculate because you're a lawyer who's the record in this case your honor i did not see dover the other aspect of what had to be proved that was not proved your honor and this book right back to the decision of this court with years ago the court said first of all even if the purchase orders contain prototypes twenty nine or some such number had physical tags attached to it there ha think bites green which tags contain reservation of rights which were viewed by the  sufficient reservations of russia and therefore if the army had disclosed information from those prototypes to help back or others it would have been a violen find it specifically did not find that the language from those tags was somehow incorporated into the purchase orders and in fact it would have been an error for the court to have found that because the only representative the government with the actual authority to change the terms of those purchase orders was the contracting officer and the board found as a factual matter that the contracting officer was never aware of these tags wesleyan didn't notify the contracting officer that was placing the pegs on the these products by simply unilaterally placing pags on the products that that they are shipping changed the terms of the purchase orders and do as you can steam pending on that decision there was nothing binding the government note does back that is a threshold question that the work frankly skipped over and it's it explicitly did that it didn't it didn't do it inadvertently it skipped over that because it said we've heard testimony at a live hearing for several days and i it looked at that live testimony is that even if we assume for the sake of argument and that's what they did assume for the sake of argument that this language in these tags somehow binds the army well we didn't get the evidence that we needed we didn't get any evidence from wesleyan that there was some sort of improper disclosure of confidential information additionally the board said they didn't get the in that they didn't they were not presented prove that the confidential information and what that was isn't spelled out but this court said before whatever the confidential information that's disclosed has to be gleaned solely unquote from the twenty nine systems that were purchased under these camelback which was the only one that was really talked about it like the alleged disclosure of the count back let me be perfectly clear is something that supposedly happened say eight years or more in the future and i'd like to talk about that theory that we heard a little bit especially i think what was the in his saying is that in one thousand nine hundred four in one thousand nine hundred five the army supposedly reverse engineer the system well there's no actual evidence that there was any reverse engineering no your honor is it was it possible that someone else knew mr snow was the person principle involved surely there were other people that were at least ten generally involved in the evaluation at that time but there is no evidence that any of them let me put it this way  the allegations that wesleyans has made focus on mr snow and that's what i'm focusing on mr snow you say there was contact with camelback by a different name the different from snow there's no evidence the record your honor suggesting that mr kerr knew anything about what mr snow did mr cote was not involved in the initial evaluation there is no evidence that mr cooke ever spoke to mr snow or anyone involved in the initial evaluation mr clarke was not involved in the same group that was doing the initial evaluation he was working on a completely different system not a nuclear biological and chemical resistant system when he was working on it in the late one thousand nine hundred there's simply no connection the record contains no connection the board decision and then the board find his i think he just said that the disclosure was made of secret information or did the board simply find wesley in hadfield to specifically that there was no tracing back to the twenty nine systems mr morehouse emphasize something and to what's your response to that he seemed to suggest that the  way the wesleyan product worked as it had a canteen on the side it had to came up way and pop and then the tube that came up to the protective mask well that's not the way the camel's back product worked there was no pump for the camelback product it was a different concept it was a different design and i think the only thing i heard a council say was that there was a shutoff valve involved with both products as best i can tell that is the only similarity that has been alleged between the camelback product and the west end product and surely the simple fact that both container shut off a different kind of shut off not even the same sort of design or or valve it is not enough to conclude that the prove that there was some bleeding over secret wesley information the camera that what you're saying here i would suggest that anyone who was designing a system the camera back in designing a system could easily have looked at the system and said independently of any information that was gained we're going to have shut off it didn't need information from was the to conclude that it wanted to shut off and so that does not establish does not even provide reservation right on the tags to the purchase orders i want to address the point that counsel made that you were found that there was no evidence that the contracting officer cingular knew of tagged prototypes the problem with that is and i will refer to the court to the joint appendix ten eighty six to ten eighty nine they're talking a believe about different contracting officers workers in question for the twenty nine prototypes and there's no dispute twenty nine prototypes are key to this case who were different contracting officers from mr shaw or whatever individual the ward had in mind as the contracting officer are these contracting officers mess or stall like jeffery were not at any time by the army to testify nor were they ever caught the deposition problem with your case because certainly this concern when a an individual or a small enterprise has a good idea s and provides it to the government  find sometime later that what looks like that idea is in some other product but here there was a prototype provided several were purchased yes and happened for another it is and that the product which eventually was produced would not have infringed the patent it had certainly some similarities but many of the basic presumptions would have to be made that there were as either an innocent but certainly a wrongful appropriation of proprietary information to secure and protect those who are willing to deal with the government in provide good ideas to the it's do have trouble making that said by notice the magnitude of the damages  you've requested this well and still perhaps the passage of time certainly is significant in this case the address that your honor i appreciate it i do want to make money right and one of it's probably a issue of whether there was post patent misuse and i will submit what happened in this case is that the concept of the on the move hydration system for a gas mask first propounded by w became almost institutional knowledge within the army i'm trying to look for an explanation it became institutional knowledge within the army and in fact one of the army witnesses this is also not mentioned in the board's decision testified that the wesleyan system notwithstanding the fact that almost at the time more than two of twenty five years had come and gone the wesleyan system as well as the camelback system was still state of the art so a lesson something that had molded for years on the shelf i think what happened is in my and this is speculation the army adopted the concept as if it were its own and this minimizes the passage of time because in one of the key elements of that is a hydration system and he had almost ten years of contact by his own testimony with camelback before the camelback patents for the n b c compatible system