us if we were talking about the circumstances that existed at the time court rules you've got a very high mountain to climb and it's not only abuse of discretion standard but there were very specific findings of fact that the trial for me with respect to that the impact of any delay from the other sometime i do not i think an abuse of discretion is always a tough standard to meet when i was say that exercising discretion for the sake discretion does not serve the purpose i think a determination on the merits particularly where the four remaining the sort of claims that actually went to the jury are truly hanging by a thread based on the record and i know that before this merits panel we had a motion to stay earlier there is a parallel a geisha in which we're going after the validity based on those very  plans so i guess that's a roundabout way of saying that if we applied the standard of the only thing that mattered was the original  there is a difference between a foreigner pardon for making an argument on somebody's judgment based on potential prejudice to the opponent and the time and secrecy in this case that we said we didn't analyzing or even knowing or considering prejudiced and to minimize or i think that that have to be under these circumstances it must be part of the analysis otherwise we're retreating into a situation where we have an exercise of rules that they become meaningless as long as he is not you can say well at the last minute i didn't really hurt the other guy even though i know it on the court orders i absolutely not judge o'malley and i think that's why we did raise this issue on appeal we moved  consideration before the district court with the patent law is it leads in terms of presiding over the dry was new to this judge i think he did a wonderful job on balance those cases are been pining for judgment and i know when the both of those arguments either one of them would have allowed us an opportunity to reach this important issue of invalidity of the four dangling claims based on the same answer of prior art ed to allow the district court to look at how the parties conduct discovery and control and monitor that approach to discovery to deal with it changed and even without all of those eighteen you still have the parameters to testify to the court has this information that the comparison is not between my client to accuse cobbler's and mr minimize commercial by any means that putting aside the facts of the moment that there was no testimony at trial and all experts or otherwise that mr minim insinuation mr projecting testified to the jury and judge on examination in cross that he had no idea what the measurements were assuming each other was a one sided throughout and it was not testimony in the record concerning the widening because i i think we only had about four or five of the time the experts for doing their work early in case later the case went on to do a redesign in two thousand and nine two years and where they changed the outside kaiser locked in we had testimony with crew jackie and these were the only elements of the claims that were in dispute was were they approximately perpendicular t v and did they had to stealing land those are the only disputed islands in the case they weren't contesting for now we thought the  or even bars as much but when you do there are consequences and the consequences are that if the judge refused the record fine substantial evidence or the solution then he has to make that review the whole record particularly particularly when the facts are are facts when the jury disputed issues of fact there's nothing like the powers home depot's situation where you've got you know the jury leaders have the facts the don't satisfy that objective crime isn't that right absolutely and like what the court concluded that is at least as it relates to the issue of perpendicular to courts bad law the jury could have gone either way on that question whether or not whether or not substantially perpendicular is the fact that whether eighty percent eighty degrees are satisfied that the courts and the court specifically say in finding your paper on that point the that's one of the jury could have gone either way on it once a jury could go either way on you back it out you get an expert if you need it and you presented to the jury to preserve it and things like this and then looking at the defenses in this case first you want to look at what's not there because what's not there is very important you don't have an invalid since you don't have any advice of counsel you don't have any you know safe harbor claims instruction where they don't infringe you don't have you know you know even have a close case the jury came back in less than three hours so what you do have are these three statements contrary arguments as the judge described them and the defendants you happy with their characterization the concern the burden of proof  not even possible because a burden of proof offends doesn't seems and then when they have their contrary arguments you really ought to look and see whether there's toward my record of whether there is self contradictory given the weaknesses nine and so what you're looking at are september july twenty two summary judgment motion july twenty extra report and those are the ones day that we live to say this is our twelve and the prior are with respect to claims two three and four was some other stuff that we never saw again and then at when the trial date was as i just said time t so demolished the idea that there was some type of change in the landscape you know new anchor because the experts are the experts analysis didn't match the summary judgment analysis didn't match to eighty two analysis so it's all of those so no it induces discretion answer your original question the argument fails whether there was an extension or not the argument is only possible because there were later delays in the case the record he said he didn't analyze anything else he's not a piny on anything else what that leaves is the rest of the record in there is not a mouse with the exception of the bootstrap take a look at each of these models and it's also why you have to do it even if your expert conceded that none of the models have a greater than ten percent and the jury can get a model at eighty percent with infringing then how is that not sufficient not the the plane here from the plane is council might have been a little weak in their presentation of truth during the course of the case but whether at the time you're imprinting you had no objection really reasonable defense so on the the record evidence of the deposition and the in history we were our own kind of destruction we were saying that at a certain point you're outside of that and it doesn't always require expert testimony and in fact we didn't get any in this that the door between the gallon and the captain scores internal to the summary is watertight and that's what that says issue between whether or not evidence that the colors as a whole