the court were to reverse on any one of those grounds it does not have to decide the remaining two of mr fleming appeal from a high level of the issues of the first whether the district court erred in holding that there need not or read to construe claims on the prior are suffices to invalidate those claims and third whether the just report aired in holding that an invention that was kept secret for three years due to a corporate bankruptcy is exempt from with respect to that issue the district court acknowledged that there was no corroborating evidence for each claim limitation but it up held the jury verdict anyway on the basis that not every claim element required corroborated our evidence pacifically the district court ruled as follows and i quote let me argue that the corroboration of events must corroborate every element of every claim that has scored six been validated yet fleming cites no case so hold determine credibility and such evidence could establish the credibility of the purported inventor without the stubble showing every element of every claim that is the case here and that that doesn't the inventor testimony then just become surplus we would need to get to know we would need to look at that in dinner testimony if there was already other evidence supporting each and every claim element going back to the supreme court's barbwire case well i'm just isn't that true though if if we accept your position that there has to be something besides and then her testimony to support each and every claim element then then they then the testimony becomes superfluous right i believe that's true will so your legal position would then render inventor testimony not useful in any circumstance i don't think it's  that his testimony must be corroborated because he's an interested witness and the case law is such that if that were the only evidence then that would be not be enough to invalidate the claim at issue because he's an interest  reference because there is no issue about what troubles me is the logic of your legal position renders inventor testimony essentially not credible for any purpose and not that doesn't seem to be our case  specific claim but just to show that his his testimony about whether he actually did in fact at and then the device or not is credible that has not been  think is the strongest on your side you cite six cases we do which of those cases do you think is the strongest for you in articulating a rule that every limitation in every claim that's under attack has it seems to me there there is something to be said for the proposition and maybe even if it was agreed that if you think about the elements ones i want and ask was there a specific corroboration that identified that specific elements if maybe there wasn't why isn't each element as you describe basically in three categories corroborated by documents showing mr or was working on radar detectors he was interested in g p s g p s tells you about locations he was interested in what about location and therefore about distance why does that not tend to corroborate these elements in substances even if there isn't a very specific mapping why are you going to integrate a g p s into a radar detector unless he wants to tell that radar detector something about where you are in relation to something else in terms of distance presumably to prevent  prevent signals from that distance triggering the alarm why doesn't that effectively provide corroboration i think i think the documents in the evidence that were supplied to the at the trial court to the jury duper operate that mr ward was working on certain things what they don't corroborate is that he made the invention in other words we don't corroborate that he had a radar detector and then he put the g p s in the radar detector that are there are documents that say he was working on radar detectors we don't there are documents and when that makes it maybe then that the problem or the issue is what exactly corroboration the as it means it doesn't mean  suggest and so if if if if it means something softer like that why don't the documents that showing he's working are radar detectors he's looking at g p s in conjunction with his work on radar detectors g p s gives you location and therefore distance information that tends to settle it is there some other theory about what he might have been doing other than trying to use them for if you're looking at the g p s specifically to figure out how to use it with a radar detector for example i mean there are there are there are greater effect on the market the don't do that have a g p s than for example you might corroborating the documents or two e mails that were discussed and in the course of testimony at seventy three fifty four and seventy three fifty three of the joint appendix one is from greg or and the other is a response i'm sorry speak for and the other is a response to mr or in which relate by context and by testimony to a brainstorming session that was held back in ninety six i think it is and one of them  one of the comments made in the second e mail is that could we this is the discussion there mr orr's idea can we patent the concept of vehicle speeds not engine speed muting and vehicle position and this is in the context of a discussion of the role of the g p s in the radar detection and referring to mutiny isn't that sufficient to establish that mr or are thinking about the muting function in connection with location determination in a radar detection system i think the issue of whether or not false signal over and radar detectors was was recognized for a long time a lot of people probably worked on that and thought those two in order as one method of rejecting the false alarm was never done in the prior art and in those e mails that that level of detail was not discussed i think it is true that mr or was working on radar detectors it is true that he was considering using a g p s unit but there is no evidence that he can bind those two there's no evidence that he generated a  distance between sort stored in a position of a false alarm use the radar do the g p s in the radar detector determine the distance between that stored location and where he's at and then use the distance between those two another store to walk out this is to reject the folklore and let me ask you one other question just a factual question that was not clear to me from the record there were some references to the software that mr  that he cuts at the form of something that had been left over on the bankrupt companies discs and may have had a disk it was that evidence that software yes or it was it was and what does that software date his reduction to his conception day was by his testimony as i understand it in ninety eight correct that's correct may twentieth ninety eight something like that that  sounds familiar in the case though we didn't rely on an earlier conception of diligence to get his invention days earlier because we didn't need to do that well i'm a little confused by that i mean are you are you nine day but well because because everyone here is let me just let me just all cards on the table here on that on the abandonment issue it seems like you may have some argument there  but not to me the way you've actually presented it it does seem for me that the twelve or thirteen months that mr or i wasn't working on that might be termed and they hadn't met but then he restarted working on that would be a constructive reduction practice correct that was the evidence the trial it never is the end of the issue never came up as to whether or not that particular date mattered because it was claiming a trial that it reduced the practice in ninety six so you know argument is that there's no evidence that he refused to practice in ninety six and after ninety six when they went bankrupt for three years he didn't do anything and so web where mr fleming's eventually came in think there's differing views of the record about the main idea that seems important because it does seem at least a debatable he wouldn't say understandable but there are there's significant evidence that at least for a about a thirteen month period he didn't do anything but that he did restart working on it after he came back to work for escort and so if he it seems to me that he could have the band and then restarted it and he may not get the priority date all the way back when he could get that restart date a priority date and that seems to be smack in the middle of the day ninety eight when you're talking about conception and then ninety nine day twen let me let me just ask that plainly if we think that his really early date is not supportable because he did abandon it but he restarted working on it sometime between july and september of ninety eight and we're going to give him that date what does that do to your case i mean because if we assume that that's his and then today sometime in ninety eight if we take the patent date your patent date as the effective date of your patent then it's still prior art well  i don't think so your honor because i mean there's no evidence whatsoever in the records even if you decide that he started reworking on the invention in some time in the life and yet there's no particular diligence rules of that conception later reduction that was not and that was not that there was evidence about that but that was not an issue that was ever decided by the jury so you're not relying on that main idea you're just relying on the though we may have been reviewing the issue of law on this question well i think that i think you have to decide based on the evidence that was advanced you know a trial is part of the record in this case and i believe that evidence shows that mr or abandon it for at least three years  a to try to give him information about the projects he was working on including this project but clearly the bankruptcy was a major disruption mr quinn had to come in and sort out what was left of cincinnati mic way is is it your view that the fact of the bankruptcy should not matter to the lack of activity during that year long period start early production to practice of the invention and they were heading towards applying for a patent in the lab burned down and reassembling all the materials getting the experiments going again and so forth down or not agreed he has every intention to continue to develop and you want to get that back to rebuild as fast as we can and his mind and maybe everyone is reasonable mind that that particular circumstance is not abandonment but it seems to simply not acting as soon as you possibly can and the something substantially more than what we have helped to constitute insufficient diligence for this record  make a product or eventually filed a patent application patent application i think that may be fine those are the circumstances here but there's a basic circumstance if i understand it right is cincinnati microwave goes bankrupt  works with the because the committee to look for purchases of the assets the assets include as the assets of c m i not personally include this intellectual property they find a buyer the buyer that how needs to set some priorities about getting some revenue first works on getting a particular product out and then in pretty short order basically within a year brings mr or back not as an employee but as a consultant to now refocus on this project is that the basic scenario here well you have some of the facts rise to the one one fact i think that may be critical here is that the asset buying company which became escort was in the process of trying to collect the assets and sort th six and then he wanted in order to refine his invention he needed a new computer he needed some help with it but the best of the company at that time was in placer dire straits and had not declared bankruptcy yet he asked for a computer for the new company so he could work on his invention they said no we don't have the money for you to get a new computer he lost the source code things went down and then some number of months later of during which he did nothing and eventually they declare bankruptcy so it was in ninety six that he's bought up the bankruptcy occurred in ninety seven the new company didn't get going again until ninety nine the first product a new company came out with didn't have anything to do with g p s their first priority was just to get the product on the market which had nothing to do with g p s it wasn't until later that they told or hey you know that g p s stuff you're working on let's see if we can get that going again ok maybe we should hear from the other side  truly tiny piece that we can say that that's enough because the jury thought that for eight hours he was personally very very credible or this corroboration have to expen some pretty substantial amount of scope of the substance of that that's an excellent question and i think in this case it's more on the lines of the adam scenario in any event but the required being a function of how otherwise personally credible in demeanor and so on the witnesses i'm not aware that the court has specifically done that sort of a balance in effect and if you have or if a court has and i'm not aware of obviously there's no objection to those instructions there was no objection to the crop ration requirement and the prior invention injunction so the jury had the law and they had the witnesses and it wasn't just mr or he was corroborated through certain documentary evidence but i can get back to your exact question i do think that and would tend to agree that you a party would need to put in more circumstantial corroborat radar detector so far and then the third element is the g p s receiver that coupled to that microprocessor and is operated operable to provide the microprocessor with data that indicates  n seventy three fifty four talked about utilizing a g p s and a radar detector and mr other documentary evidence shows that indeed location through a g p s and he testified that was connected to a laptop which is certainly a circuit and a microprocessor and he works for radar detector company and he says he has a radar detector so shit and the evidence shows cited the taurus case certainly does not say that every element of a claim needs to be corroborated separate and apart from what the investors testimony is because as judge  essentially be the addition of such things and i'm not aware that i agree and i'm not aware of the president of this court goes to bat i'm just not aware that that's the that's the issue you think those are catches the strongest case for you on the rule of that was not in evidence because it was not it didn't exist so let it exist at some point i take it it's just lost is that correct so that was the final that was what mr or was using at the end of his project as of the time the bankruptcy corrected so just to be very specific about this mr or and certainly in one thousand nine hundred six because you can tell the the company ultimately in one thousand nine hundred seven did go through the computer and this is during late ninety nine ninety six hundred sixty nine i believe it led up to the reduction to practice in april may have ninety six because this is the software that has the you know you hit the s lockout that's the missing portion of the code that one section that is not in the record it was testified to but having the actual code didn't occur at trial because he returned the laptop back now i will say that leading up to trial p rewrote that code to use as an example but the court concluded that because it wasn't the actual stuff it was a matter of  i think forty fifty lines of code or something to that to that standard but truly yes it was not in evidence if i might address the the topic of mr fleming and his may of ninety eight there was testimony about the issue of may of one thousand nine hundred eighty eight and his invention disclosure so it is in the actual record i'm not sure it's in the  frankly asked the questions myself and mr fleming show me where in this invention disclosure document from ninety eight you have these things that were to mislead the plans in other words where the claims are at issue supported or do they find support in your invention disclosure if you're trying to go all the way back to there couldn't do it and i think this court wouldn't be able to do it if it looks about that elvis so there was no diligent period so that that in there and it wasn't just a one sided jury instruction slanted towards mr or having to show that it was also put in that that mr fleming would have to make that same showing but there was never  there was not a specific jury verdict in arriving tory asking the jury to find whether or mr foreman had demonstrated some conception in may and reduction to practice through all that after that potential abandonment was resurrected in june or july of ninety ninety eight and then proceeded to file a patent application mr or that is right there with them almost exactly a two month gap so so i don't believe i believe that that underlying issue you off asked about is wrapped up in subsumed in the what the jury actually found but i can point to a factual finding by the jury on that specific issue and when they moved forward shama well did they make an argument based on a priority dat i don't believe there's actually a dispute because the question of whether of reissue is valid or invalid is a question of was and is reviewed to know by this court there isn't actually a dispute i don't believe for a challenge about any of the times perhaps since in the brief because i'm having a little trouble understanding what the significance of that is i mean for purposes of error something happens in the market which is i think not uncommon a the you realize it suddenly strikes you way that's my invention and then you go back to your patent and you say oh my goodness i didn't actually claim that and if you're within two years you to go back in your declarations say he was mistaken in my understanding of what my claims covered or my  it is certainly become place for pattern applicants to amend claims file continuation application and i'm talking about the original prosecution to survey the market and adapt to modify their to modify your claims to cover commercial products you don't have to take a position that oh i made a mistake i made an error you had to do anything like that every issue statute as a panacea or a corrective measure  but the so if he drafted his claims too narrowly and when he looks back a year and a half later and and and decide by specification supports a much broader claim my invention is a much broader claim why isn't that precisely the situation where you can go back and see korea should happen with the broader claims i believe your honor that the should packard case makes it clear and in fact the statute itself talks you don't you don't satisfy section two fifty one with one thing when you look backward to narrow this to narrow needs if it doesn't mean too narrow to be as well it certainly could mean that it's too narrow in the sense that you put in woman patients that you don't say i didn't need to put in because of the scope of the prior art because there's a possibility that somebody could infringe that but to have the what's the difference because you know that this case the precipitating factor is seeing the product and thinking to yourself oh i wrote these claims of the program and what is the error that established here the error is and here this is a also a bit of a unique situation relative to any of the real issue cases because mr fleming is bull the inventor and the past attorney so this is not like you know in re wyler where g the patent attorney didn't understand the scope of the invention and gee  inventor didn't understand claiming practice and so there was some miscommunication which was the error or the stake that no plaintiff that really matter i mean are you suggesting we should hold them to a different standard under the statutes and that hold other people did i don't i don't know the fact that but is your argument that if an inventor discovers within the two year period that he's claimed less than he could have that that's not an  that error in your conduct well that would be one thing but here that's not what happened he testified that he made a conscious decision he's a panegyric so he mistakenly perhaps choice i mean he's a licensed pan attorney and he he obviously shows how he wrote it wasn't a conscious choice to avoid prior art or anything like that said no no your claims were not written in a conscious way to avoid if that's if that's what you're saying then i don't see how claiming less than what than ten has with ever constitute an error in your analysis of course people when they write them are making a conscious choice about the language they use but they could still miss the opera head and what their invention was and not intend to limit it that way i understand any indication that he actually intended to limit it in actual indention to his claim language i mean it seems that this as a programmer stop them to a whole lot i guess the additional factor may be that he'd testified that at the time that he filed original patent claims are the claims you're going to spend sixty seconds on the corroboration issue i think what you heard today and you'll see from the brief there is one document that mr or an escort could have produced at the trial that w proven that he made mr clinton mentioned that was the c s t forty six hundred that rhodes mentioned that document is missing the store says he had it but he said now it turns out that he supposedly lost it all and all that we're left with are various scraps of paper and those things that we specifically asked mr or and escorts us expert at trial do these additional documents outside of the software the t s t software software and i did and i think distorts precedent is clear that that is not enough to establish a prior invention under one of two g on top of the reissue  issue the first thing i think we should draw us is whether or not this is an issue that we should be considering at all the first ten claims in mr fleming's first three issue kathleen that the result of six of their success on this argument would be to invalidate a whole lot of claims that currently stand as valid claims right does correct why doesn't that and the question of whether there's jurisdiction to consider their contention liability judgment can be affirmed on some other ground then that there is harmless and need not be addressed on appeal right so so in the first ten claims that original which are reissued claims the hewlett packard case says that even if you find these other reissue claims claims eleven through thirty invalid because there wasn't an error in this case qualifies them to be reissued those ten claims will stand no matter what your f is on the other claims within those ten claims the jury found that every one of the accused products in french and i'm going to use claim seven because this is the easiest there's no contention about that and french claim so all products in french one claim there wasn't any testimony for evidence or anything else about whether or not the damages should be different depending on which claims of trench they would come away with they not with a stronger judgement of claims seven was invalidated in particular they wouldn't have to worry about doing something continuing to practice it or doing other things that might come within it that weren't at issue here and traditionally a invalidity judgment is and has been i think quite consistently treated as a stronger judgment and the trial was such that you know some claims apply to some products and other claims applied to other products and the judgment the money judgment didn't differentiate between those two then if you find some claims invalid i'm going to have t to figure out what part of the judgment corresponds to the claims that are still valid that's not our situation and they'll concede that here claim seven is not going to be touched on appeal and every product that was accused  is enough to warrant a full damages verdict on the merits of the cross still i take it that you agree with the your person counsel that there is no decision this court that really on point here with respect to the question of whether a failure to cover as much of the subject matter as could have been covered which comes up in light of seeing a new product on the market that could have been covered by the patent if it had been claimed correctly with that that is a permissible ever under no case that i haven't seen it in it's exact same thing i think section two fifty one for this exact same thing i would say then let me ask it more directly to get at the argument you're posting councils making that simply saying an expression for a correct about not having drafted the claim more broadly at the time it was initially drafted is not a mistake it's its regret is different from steak and why isn't this i regret cases opposed to a state case where i don't know i don't corresponds to talks about and questions section two fifty one and though the actual holding in that case is there was a failure to comply with a component of that portion of the c f r that doesn't exist today or when  was operating under the the reissue procedures in that case so i question the court has to be careful in terms of the reliance mr aarons is placing on the because the simply doesn't exist now or when mr fleming was applying for his reissu what esports argument on reissue boils down to and this is what they say in their brief they say swimming admitted lack of intent during prosecution of his original patent to draft claims that were ultimately submitted in the reissue free systems states that since the needles were not claimed originally they were not intended to be claimed and that absence of such content is not an area correctable right by richard that too is an incorrect statement of the law so the idea that mr fleming was writing is claims the only way he knew how because of his background as a programmer that he didn't intend to return the old way cover a product that he found out more or avoid prior art that he later found couple of minutes for for thank you very much first of all the issue of whether the reissue issue should be here and heard i think i having additional claims before the trial evidence relating to the jury verdict was essentially that mr fleming was attempting to sell his patent portfolio fifty thousand dollars for these two patents our theory for the court that lower court would be essentially look one of the two patents that is subject of this lump sum award is is out if that's what this court were to decide it's not valid that the won't support the verdict of seven fifty it should be essentially cut in half that would be our theory so i believe