we're ready to proceed who are they please the court counsel to make a very limited argument we ask this court to reverse contentment and equitable conduct because the nothing no art whether the inequitable conduct references or other are anticipating the two claims an issue and we would submit that none of the three inequitable conduct references would have  delta invention did and i'd like to say something about the background could i just ask you one question about what he just said do i remember correctly the claims don't require any doesn't constant and that becomes pertness i think when you're looking at the state of mind of the belcher participants particularly mr rubin there's evidence in the record that he treated those two  adrenaline product it's an anticipatory thing not not it's not a publication it is rather a product that was either in public use or on sale or otherwise available to the is that this product is whether it's document or whether it's an actual physical product that was it let's say on sale whose those elements can be proved a number of different ways careful opinion this case the district court made a number of findings regarding information that would either with fails to meet it or misrepresented to the p t o and one of the elements there is whether those the st part be a question of whether the withheld references are material and the nd part being whether they're not being provided to the p t o are a matter of bad faith of dishonesty and for or there are different standards depending upon which components you're looking at when you're looking at credibility based upon demeanor then there is an abuse of discretion standard or when you're looking at an issue where there's documentary or objective evidence  available then a clear air standard applies and one of the cases that we cite establishes that being in an persuasive or defensive witness as mr rubin would probably the st to admit that he was that doesn't necessarily establish inequitable conduct the district court was obviously very frustrated by the pesky monye of belcher witnesses but that alone as as application is the same as the situation for the final amendment the application did not recites ph levels rd the only pair of claims unexpected that that the effect of that ph range was unexpected to belcher yes and the misrepresentation is that they were these were novel and unexpected that's what the claim misrepresentation aids yes can you explain to me why that's not a material misrepresentation because the  statements have to be looked at in the context in which they were made and in a preservative free sulfite free composition i don't think there's argument that there's any misrepresentation and that was the context in which belcher was making those arguments in its response to the office action in its t page response and virtually all of it related to the preservative free sulfite free invention and and it's ironic as i say that the claim that eventually emerged and was mitigated that the pair of claims did not have those two limitations which is how the patent started off being prosecuted so the that statement among others in the patent specification that mr rubin drafted was false and mr rubin knew it at the time he made that statement to the p t o and others the basis of that knowledge were documents or products that were preserved to free or were not preservative free and i'm  one of the additional products is a preservative free sulfite free formulation that was manufactured by belters own contract manufacturer syntactically more than ten years prior point out that mr reuben knew and understood that the claims of the patent included formulation that would would include preservatives and soul fight there is an e mail that  adrenaline product and the syntactic a product mr rubin perpetuated the fiction that the ph was inventive by choosing unilaterally not to disclose anything that contradicts did those statements he told the p s told the examiner that the ph was inventive and that he withheld material that showed it wasn't and based upon the fiction he created the examiner allowed the claim the that mr rubin with how disclose that as a result of his misleading statements during the prosecution and its failure to disclose relevant information examiner was misled into believing clear error and there's no abuse of discretion i want to talk first about the issue of and tends to deceive which counsel raised in his argument there's statements in the briefs and then we heard again this morning that mr ruben suggestion that mr ruben may have been a novice that notion is wrong and contradicted by the record ruben was belters chief dion's officer he was described as the companies had a five p his job responsibilities included patton writing and patent prosecution  law in connection with preparing it with respect to belcher's development of epinephrine mr rubin testified quote he project managed everything it all led to me that appears that  also knew that the p h of two dollars to three dollars was not inventive or critical at the time he wrote the patent specification at the time he wrote in the specification that quote the thought of raising the in e mailed that to his regulatory consultant specifically coining out the pen finding rassam is asian had quote stood out and he knew about test data about the j s p product showing that it was within that it had the the ph within the claimed range and low levels of impurities in spite of all that knowledge included misleading statements in the prosecution history that rubin knew that the court the same excuses that mr rubin and beltre proffer in their briefs why the prior are was was not disclosed why the references we prior art including testimony in which mr rubin tried to distinguish the withheld references on the basis that they described high overage product in fact judge parker judge starr conducted his own examination of mr reuben on some of these precise issues which appears at x x i've been twenty three dollars seventy three cents after hearing mr rubens testimony including under direct examination from the court judge stark concluded that mr rubin's excuses were neither credible nor plausible and there was no clear error in his doing so and in fact judge starr determination that mr rubin's excuses weren't credible or plausible is entirely consistent with the record before the court the fact that the withheld references were high overage didn't excuse mr rubin failure to disclose them there is not a single match  shows the so called inventive method achieved new limits quote even if preservatives sold by our optionally included in summary your honor this is a case where mr rubin made multiple statements that the ph was invalid to the examiner allows the claim on that basis  possessed multiple pieces of information that contradicted the examiner expressed basis for allowance and mr rubin failed to disclose any of it on the basis of that record there's no reason to conclude that judge starr committed clear error or abused his discretion this is a situation where mr rubin made misleading incomplete if not  plainly inaccurate statements by and with the active omission of relevant information and fully justifies the court's finding of an equitable thank you your honor we thank you  what mr rubin actually knew and the district court did not distinguish between those two things and ideas fully mr rubin cannot be held responsible for a spirit of testing that he didn't have