nothing became of the counterclaims if you look at the the court's post trial order the first two pages he identified to count the votes in the counting the counterclaims but then you never hear about the counterclaims again and at the end he said denied that motion and in the course of doing that made it clear that he was rejecting that indefinite this defense outright it's clear from the ruling and it's also clear from the way the parties in the court conducted themselves there after this is just in  can you can read that back statement by when the discussion that followed makes it clear that what the court was doing i was holding as a matter of law that the claims were not in depth somewhere in the analysis there's a point i think it was recent by for something that talks been this immersion addition immersion in a cooling medium whether it's liquid air or air doesn't matter because you made that point in oral argument that rapidly cooled was just too uncertain you know without the immersion no with if if if there had been this immersion part of it that it would still be an indefinite because who could tell what rather than no we did not reach benefit if you read it if you'd adopted edition every definition which was shot cooling a rabbit cooling by immersion in a cooling medium think the court's order makes clear that he was rejecting it as a matter of law of the party certainly the time to act is not on the question of why isn't it enough that just focusing on the accused product you put this extruded to come through a chamber which is temperature kept and its temperature kept at a level dramatically lower than the temperature of the of the polymer coming out of the extruding device and you keep it that way by passing cold water underneath the air to make sure it never goes over i don't ninety five degrees or something why isn't that enough for commonsense immersion in a cooling medium well because it isn't immersed in a cooling meat in your honor the first of all the the air temperature while it is lower than the temperature of the two it's thirty degrees higher than ambient air temperature in the factory and it five thousand or something degree to coming out and you put it into a chamber whose entire purpose is to have a shocking difference between the temperature of the air surrounding or don't have that and that's why immersion when you're cooling these tubes is important because you get the cooling media inside the tube and around the two and here it is just being drawn slowly through this very warm air i'm supporting cool because it is cooler but the point of  one priority aerial for another one in a prior art struggling to see just about how things went down because one of the main arguments on appeal here is that we're left with claims fifteen and nineteen and those are limited to fragrant but all of the stuff of it that they were just mistaken one defendant employee rep sam vincent gray the who is not a person of ordinary skill in the art that's a polymer engineer or a chemist in the parties agreed on that on the level of ordinary skill he's the only person who  question and i'll refer the court to and give you the zone brief where they talked about e f t p was only suitable because of the supposed percentage of concern for industrial applications all sorts of liquids are dispensing industrial side effects you're very you know it happens to have a two day goes down into the liquid so we can be any any of a host of liquid for literally any liquid because these claims are not in any way limited to the kind of liquid on that point could could the part of you please reply in a very two specimens you can get a result that says this one is more crystalline than this one and if that's all it means i don't understand hallo this climbing could same parameters in the same test and you get a relative difference and that relative difference tell you whether the crystal even the same that that reading does not say exactly what the crystal entity is absolute on the other hand is a reflection of the crystal entity in the sample like if you had x ray vision the looked in the sample and you saw i was twenty three percent like our expert testified twenty three percent of the crystal did it hire two competing experts the expert of that with their court at least one expert in the case one of the appeals federal circuit in that opinion said not basically it's indefinite because you can't tell which  lower than romney which is an absolute reading they're comparing apples to oranges to get a patent while that's exactly what happened in have exactly all the time it was a little bit worse because ace they said it was one thing in one case and another thing another case so basically these you know this is this is a situation where it does directly applicable and i think the judge on the the infringement issue found specifically the patent did not say whether it was absolute or or relative errors of findings in the infringement area so we have the same thing we have what should have been in the past now decided by a contest of experts and i think there should concern the indefiniteness challenge on appeal because they didn't pursue it at trial after summary judgment the other way was was denied you would ordinarily expect that some of you don't win a salary judgment given that doesn't mean the issue is over and the question is did you ever make that argument that it seems to me you're briefing gauges completely on the merits of bond the assumption that they're right in saying that the summary judgment ruling was affectively a summary least one of the reasons given by the district judge on the salary judgments really foreclose the issue namely the reason that they agreed to a construction the they could have put up an expert for example president i'm just i'm just i'm thinking that the the if it were absolutely critical in the summary judgment rule that the indefinite this issue was one then you appropriately adjust your testimony at the trial and that testimony can't have anything to do with the indefinite tissue which is already been determined so if reason number one or two or whichever one it was in the summary judgment ruling that you agreed to a construction  considerable and by the way i've got four or five additional backup reasons but none of them are actually material to the outcome because because i construed it and therefore it's a struggle and therefore it's not indefinite on i guess i don't really measures and how given that i think your reverie says that forty one that the technique that you use use fake your first test or your expert use was one of relative crystal and using the dogs  manual or something just how could this claim says a percent thirteen percent be anything other than an absolute just my understanding are the best i can do is give you my understanding and i think rex was counsel was getting at this when he said it absolutely is if somehow or other somebody could look at the adults in this material and count them up and say how not actually looking at the material you're looking at the scattering that occurs from the x rays and what they do is the take the relative amount of the body ratings which are shattering that i mean what what is relative to what i cook it to be and i took it from your every said forty one it that this is that what what you put on either side of that word relative is one specimen relative to another specimen is that wrong i don't think that's what we said iran i'm looking at page forty one brief it's relative in the sense data you're counting x rays and how they scatter and you're doing count of how much of the x rays scatter versus how much of them i'm sorry and the and the authors of the pander very clear the bottom with calling for to say we're measuring this by x already if you measure it in a different way i do see you might get a different answer so please make sure you always use x or d that's that's good let's call it relative means it means we're not counting the elements we're using the scientifically excited and repeatable method to extrapolate the crystal when it doesn't mean cooling lacks clear demarcation invested in this is not require a potential infringement to be able to ascertain the nature of humans product and says that a jury can determine whether rapidly cool least eleven other parameters to be done opened and intended my oral tradition is became a question of fact if they wish to pursue that a trial as to whether that rendered the claim indefinite and they chose not to during the extrusion process it had to be melted and it gives of toxic fumes in addition there were also concerned because their customers would be afraid to use a product with you had was before the district court the dad was tempted to counter that was a one page cut out from a plastics industry  to say but use this stuff with caution and conduct your the talk to your lawyers and make your own determination so with all due respect to my colleagues on the other side of the isl description that back in was eighty six or ninety six i think it was eighty six they thought this might be interesting they looked at the set and we know he had to do it and then they forgot about it for fifteen years or kind of way and being unable to solve the problem it's not means no more than this would have been nice we don't see how to do it this is about forty seventh on our list of things to think about there's hardly any demand for this we're just not going to put any effort into it seventeen eighteen years later they come back and say oh there's actually an interest and that's it's very easy to see how to do it well i would say here and there are two answers to that first the evidence that was submitted showed that the industry was in shortage on this particular item and invisible did too and then when the panties came up with it it was surely met with this  finally someone has done it this isn't something that chad you know that was of no consequence to the industry for years and years and years and we cited to apple waited for apple even after i so this was an important development and something that had been long sought secondly valois as i understand it head to development efforts the one you're referring to which was some time ago but they also started another one in two thousand and three and they  two thousand and two which is at least a year before they started their so who's the manufacturer plastics stampin her something they can't wasn't that a two thousand and three of them where he started manufacturing stuff commercially am i missing their statements with picard to that with people who were going to this manufacturing doing something in two thousand and three making it available in commercial quantities but that's not relevant to the question of it could they have known that it was available that point one way or another toward whether relevant skilled artist means on the assumption that they know all of the prior art would have been motivated to combine or something like that if say  had just created this but it wasn't really very widely known and so maybe val i didn't hear about it because it wasn't being sold in commercial quantities for a while and therefore didn't focus on it and with the level of demand for th it wasn't transparent to see through them so they had to go and do more work to determine what the problem was how to fix it and how to address it and come up with an invention that no one had before now defen also like to say that you know we're claiming clinton and our guys has something novel no we're not watching obviously has been known for a very long time but there are lots of rage test moanin there's nothing on the other side that's just wrong and i mentioned the diet can promotion obvious b p for food processing for medical devices for a variety of things and that was on the carrier part of the summer yes yes he absolutely absolutely and the was not with the products that had me in afterward but about the processing so that's not really relevant to the finished product the other thing i wanted to mention very quickly is to get just around to your question about quenching and isn't testimony isn't just possible but i think that's relevant to your question let me give me a for how you actually are the remaining i think we all agree that relative testing has to use the identical parameters in this case the patent was written by a test conducted by farmar that had entirely different software and there tiredly different detector distance it had several parameters that were undisclosed just like in the using slightly different parameters from those specified but my results scientifically lead to the conclusion that if you use the exact parameters you get the number within the range no that's i want to put the test  result now this goes back to what i said earlier what is a third party giving time sorry i type that one of the precise about about this because if this is i think one of one of your issues you may not have said you would have gotten identical results did he say you would get a result under have different parameters that was put into the patent to use a doctor even sees me was faithful to his that another set of parameters and those are relative tests you can't use different brain to retain the same thing so thank