may play the court the course in reverse that district courts granted summary judgment because the district court improperly weighed conflicting deposition testimony and snails to draw all inferences in favor of simcoe you want us to  all of micron's evidence as to the elements of changing parameters during the finishing cycle based on tracked changes comes down to a single sentence and dr dorn felt step is ition it all comes down to one premise and dr dorn field admitted in deposition that that premise was false the only tracked five they appeared twice so the only track information that they identified is an initial thickness so they had to show changing control parameters during the finishing cycle based on initial thickness the claim language is changing control parameters based on in response to an evaluation of measured data which is the in situ process information and tracked information which the court construed as pre process information about the way for being process the only tracked information so they have to show changing parameters in response to an evaluation of you want to achieve and then if the answer is no then you're going to loop back to go right before step four into a pool and then you're going to go through that process where you'll go ahead and calculate the between determining whether to stop processing that endpoint detection and changing the parameters during the process before and point has been reached  back into the process yes that's that would meet the claim limitation because end point detection just says have i receive end point if not the process but is not telling me to change the process in the process parameters the control parameters in response to initial and evaluation initial thickness if you will look so a column thirteen in the sun reference layer has reached and that's it now when i and that's the reason that micron dorn felt their expert didn't rely only on figure thirteen because figure thirteen doesn't talk about changing process parameters during finished instead he points to collimate and collimate actually explains the difference so call him eight up above in the paragraph starting in paragraph thirteen it's talking about end point detection and then at forty one to sixty seven this is where he says we're talking about process control during finishing  and he's right here's what it says at one forty one no matter what specific condition is designated as the end point of the process of removing material from a transparent layer that process may be controlled during the finishing cycle but nowhere in this real time processing control do they talk about an evaluation of initial thickness i hear what you're saying so submit that that is one that's not what my kind are you below to that's not what the claim requires the claim requires changing control parameters in response to the evaluation of the n c to process information and track information the only disclosure of changing control parameters during the finishing cycle is a column eight lines forty one to sixty seven that's what micron relied on and that's the only thing that the district court relied on now thickness and i said at the beginning there was one key statement on which their whole argument is based and that's because in this section nowhere does sun declaration attaches and exhibit a claim charge exhibit a which appears in relevant parts of this claim element at two o six he has one sentence of explanation before black quotes his one sentence explaining how sun meets the element of changing parameters in response to tract information is mainly some discloses a controller and process algorithm which entire premise of his argument that this element is met is that it's based on rate information that he says is calculated from the initial thickness and you say sun shows that there is no relationship between the late information and the initial thickness as wave information is determined by the sensors that are picking up the waves shown in figure eight that demonstrate the change in thickness and then you determine rate by factoring in time that's exactly right and when i led dr dorn felt through all of the disclosures these are not snippets ject of the district court's dismissal of the deposition testimony merely a snippet with he did which he did without analysis i led dr dorn fell through every single sentence of paragraph a forty one through sixty seven asking him does it relate four over four lines thirteen to eighteen and let him through specifically every sentence in column e lines forty one through sixty seven asking him the information being received in the form of figure eight so figure a day is the signal that shows the change in thickness but dr dorn field admitted that the signal in eight itself does not reflect or contain trac seventy and finally the force and sentence of that where it says in response to such rate information he admitted that was just referring to the rate information that we just talked about before which didn't reference initial  honor all of micron's evidence it's a messy record i knowledge that and they've tried to put it on the wall but it all comes down to the one place in his declaration it two  where he provides an explanation that the only way the track information is met is because it's based on rate information which he says is calculated from initial thickness but he admits in deposition testimony that rate also talked about so that's true so first of all in his report in their own in their initial motion in their declaration that they submit with their motion the only information that they disclosed the track information and that's it when ninety  initial thickness of the way for being can be entered by the operator that's all he refers to he goes through the later elements that refer to track information only referring to initial thickness now during the opposition it's true he did talk about  the second one the amount to be removed but he never shows and sun doesn't disclose changing the control parameters during the finishing cycle in response to the amount of material to be removed instead that only appears in figure thirteen which is only related to in point detection and when i asked dr dorn filled in deposition where does figure thirteen where do you rely on sunday school osing changing parameters and response to initial thinking this after discussion of thirteen figure thirteen he goes back to he says the only place emphasize two points that the court in response so first the court should limit micron to what they presented on summary judgment this is not and the court should limit its review to the district court's basis for granting summary judgment which in this case was only column e and forty one three sixty seven and as to that there is conflicting testimony in the record that the district court had no right away and failed to draw inferences in favor of some call it should have drawn all entrances in favor of them con which is that rate information is not based on initial thickness and where if it's not based on  initial thickness or a reasonable juror could so conclude based on his clear admission micron's expert then they have no evidence of changing control parameters that during the finishing cycle based on an information that was presented to the district court in support of the summary judgment determination was relevant to column eight with respect to rate information and that is not at all the neat and down to the record that was presented to the district court remember below there was no attack in there has been none here that dr dorn thought the micron did not present a prime of showing that sun anticipates and that there was not clear and convincing evidence that each and every that we conclude that that's not true where what is your argument if you cannot make the contention that the relationship between tracked the discussion of of rape in the briefs made it pretty clear that rape was coming out of the interference patterns that were measuring the thickness of the way for assumption is wrong i'd like to be disabused thank you your honor let me please do both because i read information i think clearly from what dr dorn told said the initial thickness information and let me explain your avi is showing the amount of material removed using essentially an optical signal but you'll note in figure a day that there is a reference to time and including time later which is essentially  elapsed time from the beginning of the process that material is being removed during the c m p process that is the elapsed time and what dr dorn felt said in that position and what his disclosure in his opening you will have no idea how long that will take so what you need to do is you need to measure how much material has been removed that's the signal in a day and you subtract that a man out from the initial th then tells you are you at your desired thickness or not that has nothing to do with rate yes it does if i don't see it because what dr dorn felt said and what the rate is described as being in the sun itself is the amount of material removed by the amount of time it is going regardless of whether you could have started with a block of plastic that was an inch and ethic and you don't care how big it was as long as you have the time in the amount removed that gives you rate rate is equal to the amount of because the length of time that goes into that denominator is the time when you start which is zero and the elapsed time that it takes to get to the desired they can see you then say aha it took me forty seven seconds to shave one micron of material off of this well how do i know it took forty seven seconds the reason i know that is because the target thickness was essentially the starting thickness minus one micron that was my desired so what sun is saying is in order to figure out what is the denominator of the rate equation i need to know the starting thickness and i look at that i evaluate it and i take a look opening declaration at appendix eight sixteen ninety eight sun says quote by also measuring the amount of time elapsing during the process from its beginning measuring the amount of time  in the denominator of the rate equation that's exactly what i was saying a moment ago and i think disagreeing with and i think the i think the no i'm not disagreeing at all i think what the with the confusion is and what i'm not explaining clearly is that said and what sunset is that you are using initial thick and s to determine that period of time in other words which are doing is you're saying i need to figure out how long it's going to take get to my desired thickness first thing you need to then know is have i reached my desired likeness all true and then i agree what you do in the evaluation is you then take a look at that and you say alright it's taken me so long how did you difference in addition to rate you're interested in other factor in the great context and that is beginning point in point but that doesn't mean that you're calculating the rate based on initial that that's my problem that's why forth is opinions and set forth voluminous citations from sun which show that in figure thirteen and also in column fourteen that track information initial thickness used to make these adjustments we can look for example at the top of page sixteen nineteen and we know for example that initial thickness is input into the algorithm which  e figure thirteen a that's on page sixty ninety nine we know that that initial thickness information is used in a variety of ways including for example at age sixteen eighty four that initial thickness can be used to determine remaining thickness of the silt so one thing that i can do is use initial thickness to determine remaining thickness and your honor i submit it can also be used in that determination of right we then go to pay what and so that's just a way to stop yes it does not just tell you when to stop what it does is it tells you how much is left in the film because you're going to be checking it periodically and so if for example you or you look at the remaining thickness and it is too thick you may decide i'm going to change the control parameters maybe i will polish faster maybe i will increase  reference so if we take a look at page a sixteen ninety nine and this is a citation to sun column fourteen lines fifty six to sixty two it says quote the result of the calculations of steps one twenty the first full paragraph i apologize your honor yes it is ok the result of the calculations of steps one twenty six one twenty nine can be continuously provided that is new quantities of the amount of material removed the rate of removal it cetera can be obtained as often as once for each increment of time elapsed between the calculations indicated by the steps one eighteen to one twenty eight this allows any necessary adjustments to be instantaneously now if we look at figure thirteen and you can see the outputs in that figure one twenty five one twenty seven and one twenty nine what son is saying that i can most any of those hopes for example removal rate uniformity the silm fitness and the amount removed i can use any of those to make adjustments in real time instantaneously to adjust the control parameters and if you take a look at page sixteen eighty necessary adjustments and also yes it does because it's referring to all of those results the results of the calculations of one twenty six to one twenty nine and so well that that is if the initial film fitness has been inputted by the operator in the step one sixteen there is a reference to initial focus we goes on to say the step one twenty eight also calculates and outputs the remaining thickness of the film at the location of each of the sensor units twenty four a to d so what that is saying is that you can take initial think this information you can plug it into this algorithm an output of that will be one thirty remaining fitness and earn twenty nine and initial thickness with the remaining thickness information and that can be used to make adjustments which is exactly what some says a column fourteen months fifty's and the adjustments come in with the looking back if you haven't gotten to the target is what will happen  is that if the if there is simply too much that missed the control parameters can be changed i can apply more downforce on the way for i can increase the rate that when a chemical slurry comes in there are many things that can be adjusted and you essentially look at evaluation of the initial thickness and so that shows clearly initial thickness leading to remaining thickness leading to adjustments or changes and in control parameters and it's all in exhibit a which is part of the opening declaration among other places at page a sixteen eighty three and just beneath the flow chart for sun you can see where it says that there's a long quote from back and it refers to using the beginning thickness of the film he says quote if the beginning thickness of the film is known then its remaining thickness can be measured in real time so dr dorn field is identifying that  here to show again through a quote to let fact that this is a bottom of the page that you can make real time in situ measurements you can control the process of doing that and one of the things  look at the remaining thickness if i know the beginning thickness i can figure that out then i can make adjustments and control parameters based upon that information so let's act also demonstrates this and let fact was something that was not addressed this particular limitation and there we have discussions of column eight figure thirteen column fourteen section focus in on the column fourteen lines fifty six through sixty seven yes at page eight sixteen ninety nine cruise the very top of that hundred ninety eight at sixteen ninety eight we're discussing this is where he discusses the element of changing control parameters in response to a show there is one sentence that i pointed you before that has his analysis and the rest is block quotes supporting his analysis the only basis that he cites to is the rate information that's the only thing that the district court rel this was not properly presented down below this was buried in a decorator in an exhibit to a decoration that's referenced in a single line in a brief which we responded to but it wasn't what was fairly presented below was the right information but they also it least i see your point was respect to some of their page sixty nine additionally lid back which is expressively incorporated by reference broadly discloses that measurements of a changing parameter can be used for automatically controlling the process in response to the measurements taking place there is zero reference to track information zero reference to initial thickness or amount to be removed nothing what he's citing what he's telling us what i read this to say is that he's citing l back for the additional premise that you can change the control parameters based on the measurements and he's right those things in the soup that roberto mentioned are measured parameters they're not tract information because they don't they're not preprocess information about the waiver and so i disagree that that it was presented below in this declaration or anywhere else that lived back his teaching changing control parameters based on tract information he specifically leads the court and us to respond only to lift back as chang control parameters broadly disclosed based on measured parameters which he did but didn't mention anything about initial thickness and that's why the argument was waived below and can't now be brought so first with with with respect to look back because were there one it wasn't properly presented it's not something that the district court relied on second it's talking about  making changes based on the amount about measured properties not initial thickness and that's in fact that's what dr dorn filled said about it that measured supportive of my cross position well it's not something that was presented in his expert report engine so not only was it not properly presented below but he would be precluded in the district court from so testify because it was outside the scope of his expert report he didn't testify to that fact and it is in his expert report which defines the scope of his testimony and therefore we were fairly put on notice that this is something that we had to respond to and he wasn't deposed about this point there was an evidence put in about this point you don't have a fully developed record on this point we would submit that when we get into this point there isn't a full disclosure and let back that actually disclose the changing parameters based on an evaluation of the national thickness we think that the remaining they can assume is actually a measure  and point detection is different and the while there is a disclosure about in column fourteen that says these numbers can be updated when i feld where does it disclose that the results of figure for thirteen support the element changing parameters on the fly during the finishing cycle in response to track information he only pointed back end point detection is different and explain why dr dorn felt analysis didn't rely on and pointed action and why mr bouck browse analysis now relying on endpoint to texan is wrong and that is from dorn fields reply declaration this don't end point detection is different it's not changing control parameters during the finishing cycle in reply dr dorn filled agrees and says i don't rely on endpoint detection for changing control parameters and point detection is different figure thirteen as it says in sun is about endpoint detection there is no express disclosure in sun that says that talks about changing control for amateurs adjusting control parameters on the fly during the finishing cycle based on initial thickness just remind the court of the standard that you know they bear the burden