may please the court i'd like to address at the outset undisputed facts that establish as a matter of law that statement separate cannot carry the burden of his establishing the right to the six six three contract language and the statutory language and i'm confused are you saying to prevail we have to accept parole evidence that the intent of the parties was not to be bound by the literal language of the contract but rather that this literal reference that this part of the contract was meant to be governed by the scots and that's not that you know it's not to ok so if there is no reference to the statute in two then your earlier argument which suggested to me that when the stat when the contract if we're looking at three c or c two you still prevails when i give you a chance to go ahead and address that under c two how is there not substantial evidence to support a jury determination that this does not result many work performed by him for the company on the resulting from from his work for one thing he describes among the actions that he took as at counsel was to analyze  very direct result of the work that he did it was within his duty to five patent applications in the genetic analysis field the only regulate the other side makes as to why the resulting from wrong is not met is that he was not hard to invent or only did i mean this was a paper patent there's no arguing that there was a very wet chemistry go on your father patent application he was working in this technology area he was analyzing the strategy to in the briefs that suggest that this invention didn't derive from work he did for the company but rather derived from work he did in the filing of independent patent applications on his own dime which he was allowed to  do what about that evidence couldn't the jury have credited the evidence that this didn't stem from anything he learned through his job but rather stemmed from the work he was doing on the side i mean it depends what you mean by stemming from it was two things one is it says this is a very broad it's not just you know mix sequencing it relates to forensics it relates to medical diagnostics to relate to genetic counseling it's broadly in the genetic analysis field and the second thing that patent says it is it  problem is related to the company's business was the one line or so if if c two applies see one of the three well i mean the back construction of this contract i mean i think that that you can the the use of the trade secret and then get to that the time thank you on the use of the trade secret he doesn't he never denies using the trade secrets on his conception page and then there is only response is well there's two different ways to do it and ther just two different body means that he had his initial conception well it doesn't matter he came up with the conception using a trade secret of a b i as one of the could as part of the conception it's on the page of conception just simple there's no response you want here any good response to that he denies that it was his invention that's not the point we're not saying it's adventure it was in its conception of how it was done he says that's one of two ways on obvious misters two issues of obviousness one is would you label the oligarchy and the other is trivial debate everyone knows what to make approach that labeling is the most common basic way to do it didn't didn't just prove part sushi in order to establish the right not covered by the related to look we did argue to the jury that you only had to satisfy one of transcript from the final argument that does panix i checked and i don't agree critical of him well i think the critical point actually here goes back to this twenty eight seventy issue in that a b didn't ask for any kind of instruction at all and didn't object when there was no instruction the jury on how this contract and these three exceptions and related to result from or any of those are interpret so they waived any objection to the interpretation of the contract and they fail to ask for any construction or instruction to the jury as to what related to should mean or whether it should be or in to see  certainly but doesn't really incorporate reference it does not incorporate it by reference it doesn't incorporate through express and there was no request for instruction on that if you want to talk about it being ambiguous it will be construed in still being drafted well i know it says or but they really mean and that's a shortened version of what they said but that's nonetheless what they said but they went on to explain why it wouldn't make sense to draft this in a way to say more because clearly companies would mean to prevent employees from doing both of those things not one or the other and so we are of course bound to apply the california contract law principles to this are we balance by that particular interpretation of the california case law deals with whether under twenty eight seventy the contracts are enforceable and that's the case law in california that they dealt with twenty eight seventy employee pension agreements deals with the issue of whether those contracts from forc e not as to this kind of situation as to whether you should be able to apply one of the other in any event we win under either interpretation because we satisfied to a to b to c wanted to two see  motion there to show that we didn't have substantial evidence and you can go right down the line to a not disputed he did it on his own time to be the only raise the trade secret issue but we've put in testimony from a savage we relied on testimony from  seventy's didn't use any information for maybe that he did it on his own but if you have to prove the he relates to it's kind of tough for me off the top of my head jury was entitled to rely on and parent we did that in fact his rep the seventh is revolutionary which was revolutionary new sequencing technology which was completely different from sanger sequencing was not related to a b s d n a sequencing business which and this came up trial actually there's a difference between whether mr huckabee who was running at the time or maybe itself or somebody at a b was interested in technologies and whether that technology was part of its business and there was there is nothing you can point to and nothing i'd be pointed to that show that the a b was interested or but more importantly actually incorporated as part of its business anything other than saying sequencing there was a good reason for that it was the only game in town a linkage could be used in a d n a pro based affinity as say and they didn't put in evidence that showed that one of ordinary skill he would have are still there without the mad reference because his doctor as dr ballard was usually labeled not an elegant can be used by itself used as a pro could be used as a probe without a label could be used as a probe with a label in fact the evidence showed in their own experts testimony showed that you could no reason to put a label on a kleagle foster imitate containing a little piece of d n a there was just nothing in the art that would have motivated you to do that and they didn't put any evidence to show that you would want to get to one across a probe to an extended duplex and the language of the claim is quite clear so that when you conduct five hundred seven claim one that method that once you've gone through a cycle you don't have initial so that when you repeat you can't go back and extended initialising all go nucleotide if it's an extended duplex all day and all that means is from the plain language of the claim is you have to use more than one you have used different initializing all going to play died when you repeat the steps it's a simple as that now this would cover a process in which you went on and actually added multiple probs like getting them again and again and again to something that was originated with a single in order to satisfy the claim you have to reply and in fact i think the critical issue here is that i'm short on time and not another words to claim or is interpreted to an observing to an impracticality you don't satisfy the claim unless you repeat if they had one of these hypothetical one step sequencing methods i can guarantee you they'd be saying they don't infringe this claim and in fact i think the critical point is that we distinguished over nick for why do you have to repeat i'm not was no need for repetition that's the exact language from the prosecution history a four five one three in the appendix we distinguished over a reference that didn't repeat because we said you have to repeat in the before if there was no need for repetition therefore it can't satisfy the school so the plain language is repeated and we distinguished over a reference of the patent ability of this claim was dependent on that and you have to repeat but in order to infringe it you would also have to repeat the perform first that's when i was up here originally i pointed out that you would not hear any argument that in terms of using the trade secret which is absolutely banned it was their word to show there is no use of the trade secret coming up at the convention that the contract says that you wouldn't hear one of two ways to perform it and that's the one that he showed in the conception then when he went to write the patent up he didn't put the trade secret in it in the patent but he used it to come up with the conception it's just a two step or and there's no denial that they spent ten twelve minutes and they sanger right that's the plan something different but they didn't do a business deal this is their own employee their own trust the patent council had a patent would they have accepted it to fill out and expand their portfolio as was his obligation of course they would of would they did they want to do a joint venture with a on an expensive technology no that doesn't suggest to me that they would have been interested in there obviously interested in i really think there's no doubt it's related how can you put a patent your patent counsel you put in a patent application that says sanger has all squarely so the cadence case that you that was referenced earlier what the court there said in california the scope of the invention of it said the language of the remit closely tracks the language of twenty eight seventy it's family are different from twenty and seventy  here i mean the contract here and the agreement expressed the reference is the statute doesn't incorporate my reference preferences it the scope of the invention agreement is there for coextensive with the scope of twenty eight seventy that's the way people understand it's nonsensical just listen to my argument on the confidentiality who would never write a contract that creates a gap between what the company had to keep confidential and what they could keep under that interpretation of the contract they'd be able to ke with their understand that argument that it's ambiguous they don't make a big deal of this look it's buried in their grief there's about a paragraph on it and the reason is because it doesn't make sense you ever come up with a contract that says even if it's related directly  reaction that the mag says probates that say that means use it as a probe there is no expert evidence on the other side and then let you know you can use it as a problem labeling it is trivial their own patent application says thank