seen but in any event there is no latches here and especially as a matter of law we presented evidence on each and every element we presented our own evidence socially because we burst the presumption bottom as required by the panel decision s e s that then shifted the burden some of this material documents and potential witness testimony that allegedly was lost will lead to that issue you are very certain dr ro's passed away in two thousand prior to cook having a product put on the market in two thousand and three is why its longtime assistant and the prosecuting attorney produced the records that they had mrs rose testify the doctor  denied the opportunity to present in a fair and full defense and exactly sides aren't and how they lost everything is important to the defense memory speed people don't remember but here she didn't pursue her legal rights field latches because if it was when it pretty much give everybody an excuse we all work we all have children turn raise i mean when will that be sort of a built in excuse all the time your argument as to why the delay was excusable because a minute ago you were talking about mrs drugs and and her work and having seen children but then your very sentence morphed into prejudice and these other things but these are each discrete issues it's not that we consider wanted to tell you the circumstances all of them in a lump sum and if cumulatively can raise a question of fact somehow to the ultimate issue it's we've to look at each of these issues we look at delay did you raise a question of fact about delay that should have precluded the judgement did you raise a question of fact about prejudice it should preclude the judgment so where is your evidence for it related to delay or is it only mr r just record as a matter of law they could not show prejudice so yes we are putting everything but our focus is on prejudice both evidentiary and economical we raced out just like giving up on the l because we presented sufficient evidence to burst the bar and they did not put forth any evidence of any nexus and economic prejudice we can see that they say they've spent millions of dollars of crocodile amount but how is that a result such they evaluated the doctor wrote was deceased gives an inference is a summary judgment that's not just a we wrote them a letter what did we ask them what did you do in reliance on knowing about a patent they said evidence of no material prejudice if i put forth evidence of either one in the present or to those which are evidence of no material prejudice on the economic factor they've started they did not make any  so this is the problem i'm having is your basically every time we ask you about what specific evidence you're saying they didn't show something but in this case because assuming we think the presumption applies and it seems to that and your kind of essentially arguing that because they didn't put forth any opposing evidence station get summary judgment which leads me to the conclusion that you think they should never get summary judgment in favor of l we ask them what did you do when you learned of the pat under thirty six with and they refused to answer on the advice of counsel so we are left with this we couldn't find out yes we we did everything lives we could do it seems to do away with the presumption i mean you may have a very good argument or the presumption is kind of flawed in these kind of circumstances because there really is evidence in their control that that's the last paper the cheer her husband asked her to keep notwithstanding what they've said that she threw everything away back in the eighty's and we tried to get those documents because as you pointed out there was this lee reference that we had shown would have otherwise  the the growth pattern unless they were able to predated under one of the two she and she testified that in two thousand and nine she had moved and it was sort of up her removed and documents had gotten lost that's in the record we cited that in every so so i want to make sure you answer that question now the other point is about the presumption and the discussion about the reasonable delay in their briefs it i'm economic side so we had retained an expert so their focus is the question of whether we had children access so we had retained an expert since thomas specialize in looking at economic large family of patents that had knowledge of the family of companies that had knowledge of the patent as you can tell from the privilege well so what you don't have unfortunately in the record is the actual  affiliates and related companies and that sort of thing and so we were responding to that in writing tory so we went to all the philly companies and looked at all their documents and said ok now if anybody ever see this patent once we got those documents and we put them in a while they're trying to say now that that large body of knowledge spread out a bunch of different affiliates and predecessors and successor companies all becomes the knowledge of cook medical that's just not the case so are you saying coke medical did not have knowledge of the path when it was sued yes or no prior to being sued are you saying you're telling me all these documents one of the privilege log and i wonder if you're playing a shell game are you telling me that coke medical was not one of the cook companies under the coke umbrella that had knowledge of the patent prior to being personally i do that somebody don't right but it's not part of the record so there's no evidence that's our point there this is all about whether the let me let me ask you this world summary judgment since you can't answer this isn't the i drawn against you that you knew about this patent at the relevant harm for latches and we have to move on from that and you can't claim lack of knowledge if you're trying to draw an adverse inference from on lot doesn't it reduce the prejudice that you likely suffer because many many many of these lives with cases that we have do not involve not a company that had knowledge of the patent and so you can understand why a company proceeding its course of business development in the absence of any knowledge of a patent would be much more prejudiced than a company proceeding in the course of business with knowledge of a patent maybe even having sought opinions and being concerned that this very patent reads on their device you can see that the prejudice could be quite a bit stronger in a scenario where there isn't knowledge but your honor for example when you say being concerned about whether this patent result or device you're starting to don't believe so we went so i think it seems to me your argument is we've met the standards for the presumption absolutely and we refused to answer any questions about our specific reasons even if that we knew about this patent for why the so they therefore were entitled to summary judgment that can't be the case well they could have gone that makes the presumption automatic well there's lots of different ways to rebut the presumption right they chose a particular let me do let's just talk about the economic things i mean on that basically if you mean the presumption they have to show that you didn't rely on the lack of suit work or had some other reason for going forward with their business plans or they could have discovered if you didn't you know put forth privileges that you looked at this and said well we don't think they're ever going to sue on this because the inventor is dea and that would show a lack of prejudice but if you don't answer those questions and how are they ever entitle to find out the reasons for why there's no nexus between your knowledge of the patent and your economic plans so you were and i certainly they could have asked whether cook medical was aware of the pack and you said they didn't ask that question i asked the broader question correctly so what are the questions that were the your client specifically which questions that they think mattered i think that's a better question for them because they have the burden of proof on that and you know what they ask what are they what are the a but my answer to that right now would be no they never got an order from judge mckinney saying look that their reliance on the privilege is incorrect we've got to answer that question there was no such question she talked about how he would sketch these things out and would say ok where's those sketches and napkins and she said what he told me to hang on the stuff they say you know i was told to throw everything out because it was two cents was going to let her tell that story next person was this friendly into far he supposedly had all these notes in meetings with the dr rose and he was going to testify going to try and tell invention story was the secretary same thing we asked where's all your documents about what he's seen and done at the time i don't have any more and we'd ask him what do you remember you saw the list of things they could remember the i don't know as i don't remember as there was another one mr prosecutor gets around with the i don't know and i don't remember persons none of them seem to go to anything important about the case like if you ask me what he ate for dinner last friday i don't but why does that mean the prejudice you i didn't see how there i don't know as i don't remember her you in any way i went through all of them couldn't find a single one that hurt your case but we had the letters presumption on top of that right we had that as well with evidence and they did not do that your honor on the evidence of prejudice all those witnesses testified they were corroboration issues how the prejudices of judge moore just said if the business hurt them and ith a given the opportunity to have a full and fair the fence take into account that sometimes witnesses forget things happened but were they given that opportunity the documents were destroyed and you wouldn't have a full and fair opportunity those were destroyed in two thousand one hundred ninety five after the application was part we produced a video cassette that the secretary transcribed dictating the disclosure for the original patent application all of that was produced