but most of my time on the issue of manifest disregard of the law what i have here that is relatively unique is dispositive evidence and i certification law acknowledges that there are cases where the evidence the undisputed facts cannot be reconciled with a court with an arbitrator's award and that's what i have here it relates to claim five of the patent claim five is an open ended it uses the word comprising it's a method claim it has six steps continuous waves of electric electromagnetic radiation out times experts acknowledged that the acute device has such a source so there is no dispute that there is a continuous wave source in the accused device and in order to avoid this dispositive evidence the arbitrator fabricated a claim construction she recognizing that claim five starts with a continuous wave and ends with a pulse wave the and that the accused product starts with a continuous wave and ends with pulsed system the arbitrator knew that he couldn't be evidence having ask the expert for the defendant whether there was a continuous source he couldn't rule that there was no continuous source so he made up a concept the continuous pulse and said there is no continuous post here or that concept there's nowhere of fact he's correct there is no continuous post in the acute divide and the reason is because there is no such thing as a continuous pulse continuous and pulse are diametrically opposed concepts that is to say the sentencing order of law this isn't an issue of relying on extrinsic evidence or something like that it's an error of law and you know i'm a completely agree with you here and on that claim construction but that doesn't seem to me under ninth circuit law to be enough to get you over the hurdle of the great amount of discretion i have to give to the arbitrator so i don't view it as an error of law because he did not issue any specific construction of that claim prior to the hearing under the plain language of the claim the admission is that the source as understood by those skilled in the art alfon with all the money in the world could not find an expert who would deny that there is a continuous wages or so back a little bit  controlling the tone how can there be a bonus is just a vote of or he did not provide a claim construction to the original claim language stuck after the hearing when he saw that under the testimony of the witness the we had that the only element challenge so there is infringement and making up the concept of a continuous pulse after the fact that's not anywhere that's completely irrational has to be a manifest it's regarded the law the patent i device you can't say i don't think it infringes i just had to say i'm not going to apply to patent that you have to read the patent you have to have put your analysis at the base in the past and there's no defense of a continuous pulse concept it's not in the claim it's not in subset that you think this case falls into that's more egregious than simply something that would be clear well first it's clearly it's completely irrational in that there isn't just construe the claim after the fact without technology and they would pay for it and so if they're using it any undisputed testimony is that they're using it yet that arbitrator chose not joe's irrational method of avoiding that testimony but that's the testimony he had  ruling that he wanted to reach regardless of the language of the patent there had to be some level of quality control in arbitration we paid one hundred fifty thousand dollars and this guy you know said you didn't read the pat do you do you wan subjectively baseless and so i thought that's where i was going to end up in this case that's why we played it he has no case law that he's relying on that says just by pleading you waive the protections of the contract so if there was an analysis that g we could have gotten to the to what we pled and we couldn't have gotten there unless we played it so where we shouldn't be put in the unreasonable position of having to waive the class provision in order to  clear but i have something like sixty five former clerks the odds are pretty good at least one of them will work for some of the patent firms in the country and that's not a basis for recusal right but you're not if you're not in the you're not arbitrating a case where you're on the web site and you're stating just there and there are reading here today here in this case do you think that that's inappropriate or should i refuse you know you have a rule i have you have a rule that says if they're not currently a clerk then who they just recently so but i'm i'm trying to get at what it is that you think triggered an obligation by the arbitrator to get off the case with c p r it wouldn't trigger for example an obligation for me to get off this case because the standard of appeal and and and the standard of appointment are completely different so a sitting judge has both gone through the presidential appointment to take that to the fed and to the supreme court but that's not the situation were safely here and what i have is a client that called me up in shock when he saw this because of the ads and so i think they're genuinely appears of impartiality well but impartiality because there's an established practice everybody knows that the rule at the federal circuit is if they're sitting if it's a case that you worked on while you were lurking you can't be involved in it otherwise you're ok that's the rule right that's my understanding is that well yes that's certainly true but it's much more public than an arbitration ok so i guess i'll reserve ok this court's review it's extremely limited under the federal arbitration act the supreme court has held this section ten of the f a a provides the exclusive grounds in which arbitration awards became what is that courts that's a question of law would that be sufficient to meet the standard under the ninth circuit precedent it would not your honor because in order to be a manifest disregard a law the arbitrator must recognize the correct circuit's interpretation of the statute was brought to the arbitrators attention in the briefing when how can you say the arbitrator didn't recognize it if you disregarded it and held the country construction th awards for error even serious error the arbitrator has to be effectively dispensing his own brand of industrial justice he has to be imposing his own policy decisions on the parties that's how  the review is under section ten of course in this case were nowhere near had standard because anything even like a really in reach of error of law is not something we could touch and there ninth circuit precedent i don't think you could touch that under any not want arbitration to be a prelude to full bore legal and evidentiary analysis into arbitration awards the parties here bargained to have the quick officiant in cost effective method of dispute resolution that arbitration provides what doctrine he was asking is that you do a for analysis into the correctness of the decision and that's just not allowed under the federal arbitration act in this case in this case the arbitrator do follow the law correctly he stated this court's claim construction principles correctly he stated this court's infringement principles correctly and then he applied them to the facts of this case he took expert testimony he with expert testimony reviewing from manifest disregard of the law whether or not the arbitrator here recognized the correct while this court's claim construction principles and then fundamentally ignore them there's just no basis here under that standard to  continuously emitting electromagnetic radiation and the arbitrator found as a matter of fact that the lens x laser didn't have a source that was capable of generating output being continuously ami means just there is no non forcing beam that's just what he means there even if he just put the wrong word in there which i don't think he did that wouldn't be grounds to vacate the or it would just be a simple mistake interpret again the opportunity to admit i continuously in your calls i think that if you refer back to the sentence before just one word says its leader does not and cannot produce a continuous wave that's pulse us but you know taking a step back again this is reviewed of the highly differential standard review it's very clear from the context that he meant that he he understands that what's missing is a non person being from the output here certainly honor there's just three quick points i'd like to make about kos the first is dr neil of course asked for cost in this proceeding not listing the no cost provision of his claims if we look at the arbitration procedure clause itself it's basically says at eight forty six the basically all disputes arising between the parties you're under or the result of this agreement shall be arbitrated so any dispute his fraud claims which relate to the arbitration agreement would be subject to this arbitration clause and that the no cost provision applies to the entire arbitration yet dr knew of some costs the second issue is the parties jointly submitted the issue of cost to be decided by the arbitrator and no one objected to that this was a joint submission were both parties asked for costs the law is clear that when the parties have a submission agreement of issues to be decided they can modify and then the other side waits and sees to see what happens maybe he thought he was going to win but when he didn't word to him it was too late for him to object to the war of costs if there are no additional questions on costs we would  said he'd like to be moved to to work as a journalist in nevada because he could make up the news there can't move to become an arbitrator and because it gives you the opportunity to make up the law if you affirm this award you're sending a message that arbitrators do not need to follow the claims do not need to follow the patent a patent is an exclusive right it has a constitutional it has the force of law and there needs to be some quality control in these things this is an exceptional case an unusual case i've got evidence on my side when you do the way that there is no legally relevant evidence on their side it is irreconcilable the facts the testimony and the opinion are not reconcilable if you will if this is not revers