issue of material fact yes right now when i look at the record your safety issues are all to a pro quos statement of fact what we submitted a statement of facts in opposition to the government's motion for summary judgment and would think that's what we are referring to if i could take a lo is are we expected to what number one are we expected to rely on the statements of fact is a basis to say that it's genuine issue a material fact and number two on do you expect us to cited and no of course we do not expect you that the court to sift through the entire thing i believe we've identified certain facts that we think to rise to genuine issues of firing try squared allegedly shared its concept and technology with the postal service and we've referred to this issue as a shorthand is the novelty issue and after allowing argue square very limited discovery on the novelty issue the court granted the government's motion for s first the court held that there were no genuine issues of material fact on the novelty issue but in doing so and as your honor has interest that argument the court failed to draw the inference as i construe the facts in our q square to favor the court also refused  squares request for very limited specific additional discovery under rule fifty six did we wanted to take three additional depositions of individuals who had worked both on the r q square project with the postal service and on the u b s project with the postal service that how with that of testimony had you been able to have it relate to the novelty well your honor but that testimony may have shown is individuals who were involved in both projects would have been forced to explain how the information got from one project court concluded and we believe that the corrected so in there that the court failed to construe certain facts in our favor the main reason why the court concluded that u b s had developed the technology advances because it had a prior program referred to as u b s basic which like flexible access involved a so called dual label in other words a shipping label that had bar codes for u p s and postal service but the similarities between these two programs were very superficial u p s basic was just that it was basic it was a bulk drop off program where you p s could tender up a bowl shipment of packages i should say a number of packages at once to the postal service for delivery to certain rural areas that program did not allow for real time tracking of the packages in both company's systems it did not allow customers to choose whether to initiate a shipment with u b s or the postal service which is really be most valuable part of our case where it's invention and it also didn't focus and preferring the basic didn't focus on  very specialized shipping market which is the market for shipping products back to two retailers once why not just to be clear you're not seeing as the software was copied isn't right well here you are talking about the offering to customers the ability to initiate a shipment with either carrier for instance and then argue square who worked with federal express and the postal service to develop this concept bring it from the drawing board to something that was ready for launch and in the course of that effort which took place over  proximately two years they figured out how to make this work they figured out how to solve all the problems to make the company systems and these are competitors interact with each other and what do you mean by figured out how to some of the problems the problems of programming  lie think it's everything it's everything to bring the program from an idea that was hatched on a blackboard into reality and so to be to be frank your honor there isn't a lot in the record below about this process because the court limited o discovery and asked us to focus on it your process though right it's your client's process yes you're talking about why did you need to scan every on your client's process well it's a fair question your honor i think that to some degree there this was more than ten years ago and you swear my client out of business for a few years and frankly i think a lot of information has been lost that's not to say we have no information we do and we submitted government have your information well as i understand it you claim as but you're saying you've any way continue to answer your question and i'm sorry for interrupting i'm sorry you are so anyway you know this happened a long time ago information has been lost and we do have some information and we cited information in declarations in opposition to the government's motion for summary judgment our claim on this point was simply that there is undoubtedly more out there the postal service ought to have it to the extent it was done in collaboration and we all have been given a chance to discover me let me take you back to yes from additional questions i think i give you a specific place  of fourteen sixty eight fourteen sixty nine the answer is the product development process is it or if it's difficult to pinpoint it into a time and place or a specific person what does she say she can recall who hatched of the idea well honor i think if you look at the top of fourteen sixty eight and perhaps we have to start at the bottom of fourteen sixty seven the question was do you maybe we should but you didn't refer me to that you gave me specific winds of a deposition i see your point your honor i apologize to the well it's more of my it's leon it's more than that because that that kind of sloppiness runs all part way through everything you refer to in your proposed statement of fact i understand your honor and given that it's a proposed statement of fact not answering my question i'm sorry i don't take me to the top of the page tell me how on earth we as an appellate court can take this thing and why i don't mean these pages i mean your references to the proposed statement of fact which is rife with mistakes and as i said you do expect us to scrutinize the entire record because i get a bunch and every time i get i found an honor i don't know what i can say other than to the extent there are errors that you have my apologies and you know we we did our best to identify the information that was relevant and to specify it and to the extent we fell short that's my responsibility and i apologize to the court i do not expect you to go through the entire record i expect you to look at the things we cited and to the extent we cited things that are not on point and that's there's nothing more you lives to that express yes i a year after it was launched and our point was this was such a big deal for u b s that if you b s really came up with it you would think that somebody would be able to raise their hand and say yeah we had the idea i had the idea this is how it happened but they didn't have any information like that it was all very vague and it was a team and we don't really remember and we just didn't think that that that made sense given the success of this program flexible access for u b s and so we think that suggests that you really didn't come up with it and i would like to direct the court to there was a presentation and this is at appendix phage hundred thirty eight it's a two page presentation it's the initial kickoff meeting between the u p s and the postal service in may of two thousand and eight and in this meeting according to the notes we have that were produced by u p s on page two it states that the postal service expressed an interest and u p s using postal channels for drop off acceptance points now that is evidence that particularly when you consider in the light most favorable to argue squared suggest that it was not u p s who came up with the genesis of this idea for flexible access because remember the key to flexible access since it used well because it suggests that the postal service for it doesn't suggest it says a customer with a shipment that they want to send back to a merchant has the option of entering that shipment either through the postal service in other words but in your mailbox or u p s in other words take it to a u b s location u b s has a better do that name doesn't necessarily point to anything that's well that's correct but yes i've not already designed this system especially when considering the facts in the light most favorable to our case where there's no evidence that this was a brand new project that they were undertaking at this time this document is either the first or second meeting i believe it's the first meeting between u b s and the postal service to launch this project and so viewed in the light most favorable to our q squared this suggests that it was not u p s who came up with the idea for flexible access and certainly did not have the idea already in the hopper this was the postal service who came up with this idea proposed a few u b s and did so based on the information that the postal service had obtained in the course of working with our q squared on its project which had been terminated less than two years earlier i see that what about the finding on page i just want to know how what you just said relates to the finding in the court's opinion on page two one one nine that there's no  label and that was the u k s basic program that i referred to a few moments ago but the label is only a very small part of the overall program the basic shipping program was vastly different from flexible access flexible access as i mentioned had all kinds of capabilities that basic did not have that assume a times i may conclude flexible access had all kinds of capabilities that basic did not have and we submitted an expert declaration which was under but it attesting to those we also identified many of those in our brief and so the mere fact that there was a dual label meaning a label with bar codes for both energies is only a so very small part of the story a rotary phone and an i phone are both phones but they're very very different and that's developing the flexible access program the nature of any materials and information provided by the postal service in the development of flexible access and the personnel at u p s and the postal service who dealt with one another  scope of this discovery that the court of federal claims allowed argue squids discovery request show that it took advantage of this opportunity to explore its claim for example its first in its first round of document requests ar squared up for all communications between the postal service and u p s relating to the potential collaboration and defendants response to that request this defendant defendant interprets this request as requesting documents extending back to two thousand and three so our q squared aargh assertion that they didn't get discovery of this of codes conversations and discussions in two thousand and six is simply not supported by the record q squared also asked for documents old documents relating to the development of the flexible access program and notably old documents related to the process by which the label for flexible access program was developed again if the postal service transferred our case where its proprietary information to use an inflexible access it would have fallen under this discovery it was therefore not unfair for the court of federal claims to conclude that the united states has shown that there was no genuine issues of material fact on the issue of whether the postal service took the dual label or dual entry idea and technology from our q squared he gave it to you p s the evidence shows that that u p s not the postal service proposed to do a label and the dual entry and i believe i heard opposing counsel say that their proprietary information is not the software which is today's the first time they've made that admission up and to this point it's all been about the dual label or the technology behind the dual label are two squared it's attempts to show it's genuine issue material fact do not contradict this evidence for example there's no evidence that the p s in the postal service began talking about flexible access in two thousand and six there's no evidence that jungle or kristen fernanda were meeting meaningfully bolt in the development of flexible access and i want to emphasize there is no evidence in the record that the postal service it's seven seventy nine is a power point hold the introductory meeting with t p s june fifth two thousand and eight right and then this power point for example it's seven eighty two it shows the return service and at the post office postal and each one there are different versions but each one originates only at the post office other evidence is the memo our counsel for our q squared was referring to at seven sixty seven that's the u p s memo technology that is the part of the dual barcode label and that in the systems behind it we're using for flexible access and these are internal u p s documents and they're found at seven seventy four and seven seventy pending that's the exhibit and then the dual label is eight hundred and eight zero one in september two thousand a document shows the u p s if not the postal service is considering u p s and postal service acce discovery that it now is disputing in this court it did not argue that the standards of rule twenty six should apply to fifty sixty discovery and therefore it waived this argument below in fact it even objected to our request to expanded discovery to include the identification of the proprietary information to our case for its claim was based on our q square and said this was outside of the scope of the rule fifty sixty discovery and therefore they cannot now argue voice finally there is no evidence that the postal service failed to retain or produced create two thousand two documents i'm sorry for two thousand and nine documents and the best evidence that it didn't is the well developed record of documents from two thousand and eight which is the time period of the development of the flexible access program this record shows that there are no it genuine issues of material may of two thousand and eight and that is the document which the first two from u b s customers entering their u b s package in postal channels that is to entry because obviously u b s packets can be entered into a u b s channel this for the first time honor we weren't allowed to question anybody from the postal service in fact we identified two in two individuals posed in front i'm sorry or is there a deposition of somebody we were only allowed to take one deposition and that was a woman who worked for u no no postal service employees and in fact we identified three postal service employees who worked on both the project with our q squared and the project with you yes and we said in our fifty sixty request we'd like to depose these three people and candidly there's two of them who are of primary importan both of whom were at this may two thousand and eight meeting which was the first meeting mr gallo and mr cochran and we weren't allowed to take that discovery and so you know to really fully answer your honor's question i think i would need to be able to pose these  folks and that's what we had asked for and so our request i'm sorry it looks like you're going to the documents we started re since a lot better well you know what ok we don't see it that way we think that this clearly indicates that the postal service was the one who first proposed dual entry and yes the documents that followed this one which counsel referred to do show you p s developing flexible access from that point but what we'd like to know is for mr goh mr cochran and the people who worked on both of these projects and were present when this idea was proposed in may of two thousand and eight what did you say what information did you rely on what further conversations did you have u p s over the following months as they developed their flexible access program because that would really get to the true facts about what happened how this information moved from the archives where project to the u k s project if it did but we haven't been able to discover that because the court limited our discovery and denied article fifty sixty requests so that's the essence of