reversed for at least three reasons we raise additional reasons that are briefs but i'm going to focus on three here st organized i would like to talk about the inadmissible being this ability issues regarding the source code and the defining with respect to the six hundred and fifty four patent if we were to affirm the district court's rulings concerning the source code we wouldn't have to reach any other issue is that correct w declarations from several witnesses regarding the source code from each rd party that states that the source code is a business record and kept in the ordinary course of business by the chi judgment the district court should have looked at it as as whether the declarations were case with whether the source code was capable of being admissible at trial and certainly the declarations could have provided supplemental declaration that source code was maintained why it was d created in supplemental declarations they could have also explain your alleged inconsistency in the source code in the dates in the source code that the district court  noted in its opinion it also could have explained that the circumstances surrounding the production of the source code had no bearing whatsoever on what the deck or and said in their in their  chip makers individuals were not going to come to court and i think also statements from maybe two of them saying that the supply of those declarations was the last thing that these companies were going to do in the realm of discretion isn't that a reasonable view of of a wrecker i don't believe that is the reasonable view of the record because wh to trial but nobody had asked but really the issue of whether or not anybody would come to trial to testify is beside the point because the because the blind man could have obtained corrected declaration court have to allow them to submit correct and declarations or to be deposed seems to say it was too late was that an abuse of discretion well i believe the district court applied the wrong legal standard and in value in evaluating admissibility d it did not consider whether the evidence was capable of being in the simple with corrected declaration  to testify and it's applied not just to the whole ball of wax but to particular assertions in the absence of a basis for saying that code corresponds to the chips there is no basis for it meeting testimony about how the coat operates and then the question is what is the basis for saying that the code corresponds to the chips and i don't see why under seven o two dr mirabel is qualified to testify about that he didn't do any testing of the chips that i recall and he  anything particularly about the record keeping practices of the particular chip manufacturing companies at which point all seven hundred and three does is say by the way there are not in their declaration that there was a correspondence between the source code and the chips he also personally reviewed the source code on their source code computer so he could he could testify about how something that operated in accordance with the source code would work but there's an underlying fact that without which none of that testimony has any bearing on the case without and that underlying fact is the code chip correspondence and he has no basis for on a business person's assertion just assertion that the code corresponds to the hardware well these these aren't business people the declarations are engineers they are one persons with firsthand knowledge of the design of ships they know the correspondence to not just business persons in fact defendants got declarations from the very same individuals defense argued to the district court and they can not stand before you now in argue the opposite that widely and does not and cannot argue that experts in the field would not consider fact declarations from engineers with firsthand knowledge of the  to the issue and that appendix into nine hundred and eighty eight well that sounds as though you're saying that in any case if you have an expert testifying that expert can rely  sir r or other inadmissible evidence to form an opinion and all you need to win your case is the opinion i mean take make a tort case for example an automobile accident case in which the expert is testifying that the existence of skid marks shows that the driver was trying to break that's a perfectly good thing for an expert to do but i don't think in those circumstances you could have the expert testify might not be admissible for substantial purposes the jury might not the jury is the fact finder right but the expert can certainly testified to that but that doesn't go to his expert opinion about whether or if if the expert was relying on a photograph and that photograph of the skid mark is something that an expert in the field would reasonably rely i don't believe so the jury would be permitted to will prejudicial effect as the circumstances such as that that you don't mean to introduce the evidence of the skidmore x or the underlying evidence on which the expert can you repeat that question i missed the beginning of a lot of what the case holds that you can have expert testimony based on something like the skidmore without introducing evidence of fall within claim limitations that those contentions say nothing about either direct infringement or indirect about comparing the limitations to to the chip in which case one would not expect when one would not i think fault the absence of reference to indirect infringement because the entire subject of who did what and even direct infringement was not even part of them at all i think that's right your honor the b is the district court scheduling order didn't require th only applicable to our direct infringement case and not applicable to our think case that just wasn't a requirement we didn't do that in those conventions we didn't somehow limit them we did what the court order do which is map those claims to the products and if you did did you take discovery of the defendants on the various on the kind of knowledge me that my time is up before the saddam have more one more question what did the district court order say about spelling out infringement contentions either then while and has no evidence of direct infringement by anybody and it need go no further that's because only the printout purported to show how the the perform  experts as was addressing some of the questioning that you raise just tronto and just say yes we're doesn't have knowledge and can't testify to the underlying facts they still have to provide some basis for proving that underlying fact and i think particularly where there is here you have the district court finding that the declaration it self is untrustworthy given the circumstances in which it was obtained indeed  the language including the language about there being no material differences was dictated almost word for word by while and as terms of a thought a moment and release of claims against the chip manufacturers and c current form and that they were not that they had not carried their burden and the burden was on them as a rule to make clear that the shows that the material would be available in a form that would be admissible at trial ind the sufficiency of the materials already submitted to establish eventual admissibility at trial was there a discussion in which while an said requested additional opportunity and fifteen thousand six hundred and forty six and in either supplemental brief as wiley and make the argument that it's going to be able to bring these individuals to trial and double down on a variety you indicated that you said something like of course there must be independent evidence for the underlying fact about the what the the code or the diagrams show what's actually on the chips can you elaborate on that of course why it was the other side wrong to read seven o three as an affirmative  crippen based on any facts brought to the attention of the expert that would include these particular facts function with respect the rules seven of three to ensure that the expert isn't being used as a vehicle for circumventing the rules about it and that is exactly what you would have going on here writing but it can kick can you work more can be disclosed quote only if they're probing of value and helping the jury evaluate the opinion family outweighs their prejudicial effect and i think that in this case when you have the district court finding that the declaration court didn't address that standard and i'm not clear that that's the right standard well just like i understand i think you have a problem if that's the right standard because the district court didn't address them well my  judged was that when the district court has has found that the declaration itself is not trustworthy is not reliable number one i think that's the reason that the expert can't properly rely on it number two is the reason that it can't be disclosed to the jury because in that circumstance will be certainly highly highly prejudicial even though it will put that point aside the question is what is it in seven o two and seven out of three that says that the source codes can come in through the expert testimony well i think you know again it's that you know an expert can rely on you know there are circumstances in which an expert can rely on something that would not be admissible and that would hurt the expert can rely on but the question is does it have to be separately admitted for the expert to rely on right and that's where you're dealing with i think what you have here is is a you know a foundational fact with respect to the  hate the the idea that an expert can then rely on a declaration the district court has found to be not only inadmissible but to be untrustworthy not even a little under the residual   because under under seven o two a foundational fact like this is is not something that the expert has any basis to know themselves what only good you have in the case law can confirming that i guess what you just said seems to me to be i guess it makes me think of judge sykes hypothetical about about the the expert and the skid marks where the expert is just looking at a photograph you still need somebody to say i took this photograph those are the skid marks at this place on this day and the expert i guess in your terms you would say cannot simply say well i'm an expert and i rely on what people tell me about that sort of thing all the time in order to get into smith issue which i gather it's it's anyway what document whether order or derogatory requests or any kind of other document imposed a obligation on wild land to say something about  at i understand and appreciate the question and i think here while i can is is conflating the requirement that they serve plain charts with the requirement that they serve infringements and conventions if you look at append three thousand three hundred and eighty three they had to provide a final infringement contentions and we had to provide final invalidity conventions  infringement contentions was i think october th team am i right that they're the entirety of it is mapping of products to claim limitations and there's not anything about any kind of infringement namely not anything about direct infringement not anything about indirect infringement it cetera i think my time has expired my question thank you for the follow up going the requirement here was not just that they provide clean charts but that they provide final infringement contentions of the district court procedures these were found frankly somewhat surprising that  they had not addressed i don't i i i don't actually think that's what stark said he was surprised but i think what he said he was surprised by fairly enough is that the stand apparently standard scheduling order etc deal deals with only half of the question of infringement namely how do accuse products read on or not read on for the plaintiffs point of view how do they how do the claims read on them but don't ask anything about the whole other half infringement namely who did what when is there a sale is there an importation is  is there i'm making is there a inducing activity and the question just isn't asked and in part i think because of the shorthand that everybody uses about how products infringe when that's not what the statute says well i it seems like there's no clear authority that requires her say that's the final infringement contentions disclosed theories of indirect infringement and he recounts the history in this in this case of the t back and forth the parties had to some half dozen letters that he's received from one land alone on their infringement conventions and any makes the observation that in all of the that one of the inadequacies was that nothing was said about about what kinds of infringement were being alleged because i don't think i don't think there's anything said about direct infringement either but just just trial so we didn't because the theory is that they think that they presented all our theories that would go to their direct infringement theory there was nothing after the filing of of the complaint nothing that suggested that this was remained at issue in the case any more than a doctrine of equivalence remained in the case and if you look at their their complaint it's very what they served in in their final infringement conventions are there their claim charts with whatever else they added to them and the question i thought you were asking and i misunderstood just like was what was this the contention that they had had served on and that we had responded responded to and i was simply noting that what we had we had objected to there and frenchmen contentions of continuing to be my responses that's what the courts will require the court required you to serve final infringement contention and if their final infringement conventions don't say anything about indirect infringement then i think under the circumstances of this particular case and all of the back and forth i think this is part of the point that the judge stark was making at appendix seven thousand eight hundred and fifty six that he weighs all of that in concluding that the that they should have known admissibility issues to emphasize that there was no dispute about the mapping of the code to the products in the defendant's own declaration that they obtained from the rd party chip was a set of submissions made in the alternative on the on the assumption that the various declarations were miscible that that's correct they say that they were submitted in the alternative your honor but actually they submitted those declarations in support of an early summary judgment motion and then relied on expert reports i