very well to begin when you're ready testimony presented this is an unusual situation in the sense that it is a highly material reference that we're talking about the old thirty three patent that was the subject of reexamination and the patent office point clue to it that it was highly yes that is that is mike and it's not the price that's correct and i was reading attorney testify i know now with respect to the who inventors they testified provided the district court with an copy said he doesn't recall who ever being considered open testified they didn't give any thought off so how can it be that they didn't submit because of this imaginary limitation which i believe it self that's not possible but also time the district court made no findings that about the explanations that the inventors actually gave about why they that they didn't consider it at all don't you think that there'd be a pretty good argument of cl  or have survived that it should be construed to include in the problems on the page i don't believe there's any way could be there's nothing in the end there at all i mean and it's not an invention is described described as going beyond that and yes there's one place where it says that another aspect of this invention is an e f marker that that simply has of course every below fifty five verst and that says nothing about abruptness so but it is not something that it's possible to read that into it furthermore when they when they testify themselves that this is not the basis for not submission they also testif we didn't discuss it at all and that is why it's not inconsistent with you know it's inconsistent because either you considered it and you actually did it because it's not a prop or if you never considered it at all so it couldn't be both of these things one of the maybe they didn't consider it because they didn't have in mind that the claims in question did not have an abrupt limitation well they provided an explanation for why they did disclose the four patents that they did they did disclose for x none of which has anything to do with the broadness and their explanation was that when they were choosing the patents to submit they quote had nothing to do with their invention had nothing to do with the brightness and they were just historical references to am markers that was dr copeland on page eight fifty three of the appendix is there any other testimony or any other evidence of any kind of coke will conduct once whoever on the part of these inventors yes there is for one thing dr coffee testified that even though now he knows what the reexamination found he knows the patent office considers this to be highly material notwithstanding that he still maintains he would do it again he has no duty to disclose lou even now while not now but as of the time of the tr but he continued to maintain that far as he's concerned he did have a duty to disclose regardless of what the reexamination had to say in addition to judge lance question about any other culpable and he also confirms on eight forty five of the appendix that the t c a product is made pursuant to live he's incidentally co inventor with respect to the other material court discredited they found her testimony that it was sold to be not credible there wasn't disagreement between whether it was sold or given away but the two witnesses stad mr patterson said that he does not take exception with balls and that it was publicly used only takes exception that so where is the district i can't put my finger on the district court's finding with respect to her credibility do you have that relieved hand i don't have well fine right that's right ok i also want it also says that it's packaged in quantities of a thousand or more and march twenty eighth one thousand nine hundred four so we would have to believe that it was packaged and it had to be activation problems in the packaging but it was never sent out or memo and that said page eighty nine no wait copeland said sure it we were looking at a k four labels in sheets that's what we do as part of the internal testing we make the labels in sheets and then we test it that and again today inventors never even consider whether to submit the zero three three patent to the patent office that should end the whole debate right there about whether or not there was intent to deceive because after all start scientific and only from the mullens case the holding was there had to be a deliberate decision to withhold a no material reference if the inventors never considered whether or not to disclose the zero three you can't have an intent to see if somebody knew about something and it was highly material and they said they didn't consider submitting yet and that's all that they had you know that might be a problem that might be except except when you have a district court looking at those witnesses and finding it's credible now well credible is the reason why they didn't consider it and the reason here with the district court found is because of how they read the coins they read all these claims as dealing with the brought markers based upon their understanding of what their you to have a useful lower coercively a bias material and that what testimony was from dr coffee for instance is that you could in the prior art have all kinds of different bias materials including lower cour in that disclosed in the background section but what you don't have is anything that's useful and what the abruptness allows you to do is get something so it's lower in course of a day but useful so it wouldn't easily specification and so the question is can this patent read it can these this claim for reasonably be read would it be likely to be read to include an abruptness requirement now your contention is that it would i take it yes it read that requiring abruptness with respect to all of what the invention claims to be claiming now what i didn't understand from your answer are you saying that's just not so i that there's a different thereabouts correct so your argument then is that that pairing opens with the cause according to a second aspect of the invention in such a marker such a marker being a marker that has some of the objects the objects being achieved by the characters yes are in the testimony and it's not just that you read it that way that's exactly how the inventors read it when they and the testimony was to be issue there are couple different points one is what you have by what you had was testimony by one person mr patterson in rebuttal talking about some field testing but you don't  have any corroboration of what he said and the cases are clear you have to have some kind of preparation he says there was field testing in the ninety four ninety five time frame doesn't give anything more detail than that in fact it's interesting in phoenix's brief they talk about didn't he knew he didn't know more than what he knew so yet that's what they're relying upon for their want to be argument that kind of vague reference ninety four ninety five isn't enough in terms of the time frame second what but there's a more fundamental problem with the public use argument which is for there to be a public use there has to be proof that the public what was publicly used met the in the limitations of invention and some testing was done and they found that we can't just to gradual it's not abrupt enough for what we're looking for and there was data contained within that memo that specifically shows that there was a failure to meet the saturation limitations of the there are others as well i can talk about those if you want but there's a main one thousand nine hundred five memo which has data that supports that a k four as of that time didn't need it for a certain other of the series claims as well  now and that's a five eight nine two so what phoenix does is they say there was no change but the evidence actually shows that the air on a pro four in two thousand and six was processed differently and it's not because i think i think the record wasn't one of the record is confusing i think there is an attempt to create confusion but the record clearly showed that there was processing that occurred in two thousand and six and that when you change when you take this material and process it differently you're going to get different magnetic properties even the specification for an approach for the one thousand nine hundred seven specification says it can be processed to meet different properties and ranges twenty to fifty five so i want to address briefly what phoenix says about this experimentation in two thousand and six in their reply they make two points first they say well this was later experimentation it came after they three where he says that feeding started using the army prone for labels at the end of two thousand and six beginning of two thousand and seven and what the those dates are important because all the memos on the experimentation processing that was going on in our milk for phoenix was earlier in the spring of two thousand sets so this argument that the experimentation is not related to the series fifty eight labels is be allied by the record the other thing that phoenix points out is that they were for the first time in the reply to this so called fish markers those are markers that were put together by dr fish their expert in the ninety five time frame there's no direct evidence of that so this attempt to extrapolate by referring to fish markers fails because there were only employed mr different just for the fish markers were process specially for phoenix in two thousand sets and that's page eighty seven zero four seven seven thirty two one through fifteen of transcript so on the one to be sure you've got a testimony about a timeframe that's insufficient  invalidate and you have insufficient evidence of meeting each of the limitations of each the asserted claims that the district court found either of which is your basis for finding the district court's findings were not clearly wrong things thank you very much yes john if i may just point out i have just a few moments but the markers that dr fish made are detailed in how he made them and that is on a one hundred nineteen through thirty two and