in the patent model hybrid no other finding was made in the other finding was possible on this record and there's only two forensic finding actually made there was no i when i say no other finding was made there was no finding  were only two other than the version from the end hydrogen for the model hydrate issue there was a lot of talk about whether there were other forms that there was and there was no ruling by the judge really where the other of the the judge did not accept the known and written down and had names associated with them but there is testimony that there were thirteen for one statement at the end of their infringement rebuttal case that said in ensuring documents there are thirteen forms there is no evidence but it's not their burden to show that one of those forms could be the product it's your burden to show that in a hydrate converts into the mind of hydrates that is clearly right so why why why is operations to the director of product development waiting dr trout in my in my reading from dr trobe let's look at page thirteen sixty one of the record this is dr trouts testimony so there are two known for it's the end of hydrate and the mother hydrate and during the deposition appetites gave me some information that indicated possible forms such as another and hydrate form and the sulphate i believe  day i would consider those possible forms but not known for the two known forms or in hydrate and model hydrate that we've been discussing so why that testimony doesn't seem anywhere near as clear as you're trying to make  to there's only two here but it even if there were six as in the hypothetical the dr cock robin dance or the district court if they're all known and one key is unique to one of those components and to no others the presence you know article that said use to repeat it all with the chemicals because three gave you a sense of rely ability and isn't it possible that with just one peak it could be attributed to something other than the presence of a particular and i try to moderate even if the overlap there's no ois there's interference but if you look between the range between five and twelve degrees at the low end range if you look at the chart from appetites as document that is the blue brief the page eighteen it's reproduced again in our yellow briefs page thirty generate a seven point eight because there's no evidence in the record that any information to this court date gave any information to the district court about what how those components what their x r p t characteristics a lawyer what testimony do we have from your expert witness that three peaks were required because there were only two versions of this testimony so you don't need three peaks because there are only two forms of the hydrogen there's testimony that says one you need speak is sufficient when you only when you know that the combination that pure i'm going to go along with it was said that there is a convention out there this is if you really want to be certain guthrie that's exactly that arizona's but were they so he was there was there testimony from an ex for put in not say it right i mean dr master said that you can establish the presence of the monell hydrate from the seven point eight p alone yes but he didn't say we don't need  because there are only two forms of the hydrogen right he didn't say that expresses on a so i mean this is all very interesting lawyer argument i don't understand why the district court has to make findings about this when there is not explicit testimony to this effect seems to me you're asking an awful lot of district court to address things that didn't bother putting expert testimony in terms of proving that the district court's three peat standard which was a sole basis for ninety nine infringement was clearly erroneous i'm focusing the court's attention on the expert testimony of their side i'm not up here re arguing that my my expert was more credible you should believe him i'm saying look at dr karp rather making a scientific argument that was made by the experts and you're criticizing the district court for not addressing it seems to me that that's not entirely fair i'm saying that the district court misunderstood the significance of the the three piece standard t cock cross testimony in a sense just proves itself in myself and it shows that it's not known universe of possible can phone components was sufficient to satisfy people but again that hinges on the notion that there are only two possibilities and they put into evidence whether it's right or it's wrong but there are actually  possibilities they didn't put it in the steps but that's my point the promise of this is that they had a statement that said sharing documents show that there are certain forms there's nothing to tie those thirteen forms to being in the half a text and the product because they didn't get that evidence into the record the district court excluded the underlying documents the statement by dr frankel it was theirs sharing documents of showing that these are the thirteen forms but they did that so they get into line got to mean which is the hearsay only evidence of record is that the only two things it could that were known that could possibly be in the end a product not anywhere in the world where there is some difference to me the only two things that could be in this and a product because i read to your experts testimony which acknowledge the existence of other possible things but distinguish based on no one thing the corpus testimony from our expert on page fourteen of our blue brief which is from  forms so the only two forms it could be in their product and the only thing this is they did not get the evidence into ends of the record that shows that any of those other eleven forms because two of them are the anti  possibly exist under the conditions of this formulation couldn't possibly show a seven point six there's absolutely no evidence of the record so it's a matter of the evidence the doctor throw up old one statement that sharing documents say that there are thirteen forms does not can rack the five witnesses that all say the only two known forms the appetite i mean there are three technical people it's their witnesses their formulation person their director of operations they all say the only thing and only thing the apathetic knew about were the two forms and that the only thing those were the people that would have known what would be an app texas product so there if you to get to the point where you would have to examine the thirteen forms you would have to reverse the district court ruling that excluded those documents from the record and you would have to remember the district court for findings on whether those eleven other forms could possibly exist in this product because the district court's ruling was i'm excluding that evidence because they've made no attempt to get i nto the record they make an argument now that we're raising this for the person or it's your burden to show infringement so you would expect that you would have testimony saying that there are three  his his expert opinion was that the seven point eight peak and the eleven point six peaks that were unique to the modified date relative to the anhydrous were sufficient to show the presence of mana hydrate in the samples that is our evidence on  side of the scale that would be our evidence we would want to jury verdict there's no jury here but if a substantial evidence i'm saying their evidence the only thing that they have to counteract the evidence is saying that there's these thirteen other narratives these eleven other forms that exist i'm saying this record does not circumstances one might be and if you had a relatively pure assumptions of where i was testing something that was clean i was testing something that hadn't been tripped up in the ground whatever the judge said this would be able different circumstance rethink methodology is it would be thrown out under doubt i'm arguing the three piece methodology does not apply when the universe is not you you know you not contesting the validity of the legitimacy of the three big that's enough the three peaks standard was in a sense manufactured for this case because we're talking about a range of information where there are only two to need speaks to them on a hybrid and so cockroach testimony was focused on saying there's not the third p by focusing on the lack of the first he was able to avoid having to confront the fact that the seven point eight peak that was in the samples came only from the model hydrate because there was nothing else in there that could generate that seven point  found our test results and analysis from more consistent and credible than works that's not reversible error here but i'd like to talk move you to something we didn't cover mr stanley's opening which is so robin testing when you're standing is conflated the two in is opinion in fact on page a twenty twenty one he seems to lose it's the reason that the robin testing is not adequate to establish infringement is because there were less than three feet  overlapping peaks means the rom in testing produces something that is not at all like the s r p d as i understand it and this repeat problem i e the handle was requirement of three identical is not something that would be find on the model hydrate peaks that should have been there in the p x r d dr mansker then said well i'm going to try to see if i can come up with an second test it's going to perhaps give evidence that there's model hydrate in there so that can be a confirmatory test to show that really there's nothing wrong with my p x or the test so dr mansour ran the running tests and said he sees a lot of model hydrate in there our expert goes back and reviews the thousands upon thousands of p s or the pattern i'm sorry of rahman patterns from an spectra and he says now these aren't matching up to your model hydrate reference standard they're judge believe your witness but in this describe this testimony by referring to the right i think that what is that correct yes i think that that's yes yes i think that what to do yes or no i mean why are you so difficult yet no i because i just match for one point was trying to create these raman apps using just one peak doctor just to try to sort spector into model hydrate versus and hydrate categories dr crawford absolutely wrong you can't do that then dr troll said i went back and i looked at the whole pattern which has lots of peaks and they don't match your reference standard so that's a separate reason why dr metzger i think you're wrong then i think if we look at the next part of that sentence that you draw me drew me to that says and by the way there either then i think they just report recognise that we had our own independent testing of rahman that conflict with dr masters results as well so that's why the district court ultimately concluded that the room on testing was not going to be for lack of but describe the way it was an act well i think and i said as we said in our brief i think it was a bit of a loose approach there whose language that he used because when you look at the actual testimony that he's citing in a prior paragraph he's bases for saying that one peak would be enough because there's actually another in hydrate with a peak at seven point eight show me where that is exactly sure if we take a look at the reference and i believe it's in the appendix at p apologize twenty two eighty eight and where there's the and as well as twenty to eighty seven the let's take them one at a time twenty to eighty eight that figure at the top of what you're referring to in that peak that first peak which could be a seven point eight is expressly said to be model hydrate because if you read the text what they were doing here is they started heating up the mana hydrate to convert it into another crystal form that's why the t x or  pattern is changing as they go up in temperature and you can see that for example if you look at position number nine in the bottom there's it's flat there but then if you look at the time you've gotten to the top now there is a sharp right so we shouldn't be surprised to see a peak of seven point eight throughout all the temperature range well that's actually our whole point is it is are driving off the water from the crystal the seven point eight feet doesn't go away if you've taken the water out of the monell hydrate crystals it's not a model hydrate anymore that's the whole definition of a model hydrate is that you've got a one to one ratio of water children how do you know you're throwing all the water off because so has a forty five percent humidity one do the crystal packing differences of these two forms and then they say in the next paragraph at a higher temperature and low water activity the model hydrate became maddest able and the hydrated which resulted in the formation of form two well i often get dehydrated but i don't generally think that means my body is this total absence of water or we do understand that when this says it became dehydrated it ceased to have any particle of mano hydrate remaining in it which would have been the basis for showing the seven p yet what it means is that you've driven the water out of the crystal cell the definition of a model hydrate if you've got a one to one ratio of self between of water to drugs so for example there's other cases that this person has dealt with where you have a heavy hydrate that means you've got half the amount of water for every unit of drugs in the unit crystal cell you can have i hydrate three you've got twice as much water so here the claims are specifically directed to a model hydrate so yes indeed as you start to remove the water first full paragraph on page eight twenty two ninety it says form two is a medicine table and hydrous form so they're recognizing that they've lost the water it's no longer a model hydrate and furthermore your honor as you rightly recognise the record did show that not only were there these forms but there were also additional thirteen additional forms that had been identified our expert testified and it was never challenge that these other forms eleven point sixty no expert of theirs ever said that no expert of theirs ever got on the stand and said seven point eight is in fact you need to monitor my dream no expert got on the stand and said eleven point testify in our product there's only two possible forms that could exist nobody said that and they've got no record citation for that in fact when you trace x through their briefs all they keep saying two are statements by people that are very general that says we're aware of two different forms model hydrating and hydrate nobody has ever testified that those are the only two possible universes things that could ever show up are exactly and furthermore the reason why their expert dr metzger who was the one testifying about this didn't do that is because i got him to admit on cross examination there were some of the tech samples he looked at that had new peaks that didn't match up to and that's why the district court was well within his rights to say i don't think dr masters results are credible and he credited ours because when our experts tested it by p x r t we found no evidence to modify a trait when we tested it by raman we found no evidence of model hydrate the simple point is that there's nothing in this record that reflects any other piece or any other forms of model hybrid it could be in the app a text you're talking about the chen paper there is nobody in the record testified about argue that you have an expert come in and say that the three peak requirement is irrelevant because there are only two forms i mean what's this trick or supposed to do i mean all of this is argument is not something that was placed before the district court in terms of the three peak requirement was he supposed to make a finding about he made a finding that the three people parliament was required to produce prove the presence and that three people foreign minister clearly erroneous there thirty because you've invented an organism in after the fact is to why you needed to make a finding about there only being two forms and but you didn't bother to have an expert witness come in and testify that this week requirement was not necessary because there are only two forms we established through five witnesses that there were two forms and that was a case that required them to come back if you look at the warner lambert case that this court decided it says it takes more than just mere speculation for us to have the burden to disprove that anything else in the universe that could have created the seven point eight peak that was another that was one of lambert versus have and the issue in that case was as a summary judgment and they said it's not enough you have to come forward with specific evidence that shows or something else in there that could generate the seven point eight feet they never brought that evidence to trial they never introduced that evidence they didn't even try and discover that these these documents that are referred to that were properly excluded by the district court there the that the channel paper that we're talking about here which wasn't excluded it says on the face as it only exists it's a medicine table product that only exists in love negligible humidity and over seventy percent seventy degree celsius it couldn't possibly exist