stability that would have been one thing but its present five chemical stability and as i see it it's not clear that you proved that the chemical stability think is what you are getting at argues the district court erred in his discounting of our expert testimony on the subject because of it requirement for a degree of expertise specific to profit when the chemistry that would and in this case because it was the testing was done in glass containers the bigger the physical instability that we're talking about here is ads or should be as in david where the propaganda multiple stick to the side of the container and  that test doesn't really mirror the accused plan to clients it is something that we can say that's clear i find that really challenging no i understand that and i think and by the way the  if i read the opinion the reliance on the lack of expertise of the winds was was of just their sixth after after the district court had gone through all the problems with the study below the test well and i do agree with you that  basically a battle of the experts on those very points that judge garzon has writ of course just of course not required to agree with my experts but what you can't do is dismiss my expert understanding of the scientific principles on an  for you to correct that error in the district court understand send it back to him and say this level of expertise in this particular narrow area propaganda chemistry was not necessary so it shouldn't have undermined your faith well  period end of discussion to some extent doesn't sound like this is the principle plank in the court's analysis of what the infringement but it's certainly significant enough that in a relatively short section he felt compelled to bring it up a compelled to agree with me but i do think he is required to do an analysis if you can articulate a reason for discounting one side that isn't clearly erroneous i would like could i i could the question about the  stability that your let me ask the question this way is there anything in your view in the district court's findings that suggest that this claim is in fact has been shown to be inoperative with respect to chemical stability the court does say that infringement section very critical of some of the conclusions that the inventor reached with respect  infringement and as ruling on the written anticipation section this is the page correct eight forty five forty five forty six i think he made a critical point there that he found on infringement that we had not met our burden of showing the issue here julie is one possible in chemistry what alcan decided to do in making and not its infringement case which rely on this single table in a study that was designed to and reported data with respect only further concerns that he is trying to make a leap from the data reported in table seven to bars and the product which differs in several material respects respects that outcomes own studies reported impacted chemical disclosure meeting one twelve when you haven't to narrow a claim and you've got a lot of species disclosed and and out of how to use a lot of postage material  why wasn't the district court of place where the basic problem with the invention specifications your honor is that the person ordinary still on the ark cannot just make it and be done you made it or you try to make you think maybe you  and then you have to experiment that's the problem and the art in this area is unpredictable you cannot extrapolate that's true that's true and all are from sort of the chemistry of so unpredictable but it's  what you would need to do experiments to check first of all is your process when you are stable because you can't rely on the data in the past to assume that because come time to doesn't tell you anything about an some work you have to identify the degradation products to run these different kind of studies and figure out do you have assuming you find any degradation products in the first place is this actually chemical or physically stabilizing and the results kent testified that you have certain the scope of the patents particularly problematic with respect to different types of ph so you would have problems with practicing invention with optical ph with respect to this whole class of well possible it seems to me though are you saying that mark thank you i don't think we need to show that the invention doesn't work what we need to show is that there will be on do experimentation to made in practice the invention that is the patent can't just be a starting point it can't that's all the case you can't just be a proposition that the person working in or skill picks up and runs with or trots it needs to be something that you can practice with our experiments going on in publishing let's suppose the science were clear that we didn't nobody knew it but it just so happens  does work with every model you don't know nobody proves that at trial are you saying that notwithstanding that nobody prove whether it does or doesn't work with respect to every embodiment none the less there has that would have to have been a lot of experimentation to establish that it works for everybody and that renders the claim in that one yes your honor it does and i would i would recommend that  which comes back to the question of whose burden it is to show that it is unpredictability i see that it doesn't work in some instances it's the i think we're where i would respectfully disagree with your honor that it doesn't work in some instances requirement is to make sure that the disclosure is commensurate with the claim that the person we're going to kill doesn't go out and have to experiment you can make in use the invention here to try to make the invention and then you will experiment and see if you is not clearly what's wrong before trial the patent he's failure to introduce evidence of non essential and or of infringement excuse me means judgement for the challenger and he or the first part of that test is on the to the claims were put in the case so it comes the three three since the close of briefing expired in august the zero five two patent still very much alive with respect to that hasn't given this court any reason why we should have our judgment except that they want to maintain the blockade happened after this letter it looks like to me that that the supporters the briefing tells us that letter went out and then we hear nothing more from either party about what's going on would result in interest mr with prejudice and therefore i'm hard pressed to see where the unstoppable issue comes and if you never really reached there was an offer in other words to dismiss it prejudiced and there was never any agreement that let me pardon me let me start the cross appeal and i'll just be brief on the show because i think the district court laid out in pretty good detail what was going on here everyone knew prior to trial that these claims were out of the case and the best in their own pretrial filing they have sections in two different documents where they say this is the relief we request at trial and in this pages and pages of issues on which they want relief and there was nothing at the three a three o five to pass and they expressed we define both in their own documents and then joint documents the phrase patents ensued to include the other four patents and executed these two paths the district court was one hundred percent correct that everyone through their conduct knew the flames had been withdrawn from the case that in fact it was written to the filing if nothing else were written consent to administer the pleadings and the district court was correct but the term dropped is a really unfortunate term would you agree does that mean litigation you were consenting to judgment on those claims or you could say well we're we're trying to kind of informally dismiss well no your honor complaint i don't think there is any ambiguity of this because the offer was made with to stipulate to dismissal of the claim we never offered an presumably from asserting these claims as a basis for resisting your opposing parties and i would assume no i think there's a critical distinction here is a critical distinction with the fight here is over is whether they can get an affirmative finding that is a matter of fact they do not infringe a stipulation of dismissal of dismissal prejudice does not give that and the absence of a declaratory judgment claim counter claim seeking relief on the merits on the patent they have no entitle him to that relief if neither option a lot did not in the federal rule that allowed the district court to order the patent t to go forward with a claim it doesn't want to go forward with in the absence of a counterclaim and if the patent he doesn't wish to go forward then that's just it the claim is dismissed it ha collateral consequence on the back to you know future case that for a future court but the issue in this case is is whether in this case without ever having a certain affirmative claim bar having known full well we were not asserting our claim patent infringement is entitled to infringement i think i said i've said my piece in the opening argument and i do think it's reversible error but i would say if your honour's are inclined to disagree with me on that you either need to reach the validity findings on the merits or you need to findings because an inability finding obviously has collateral consequences to us beyond whether this individual product infringes i think it's reversible i think you should reverse into our vacation send back the infringement but if you don't we ask you to reach validity the casseroles of the composition the unpredictability goes to the magnitude of the enhancement and the resulting end result the degree of final stability the product there is no evidence at all that any experimentation is required in order to achieve something handsome and there is no evidence in the record you can look closely at the two pages are cited in their brief and one page that came up their argument there is no evidence in the record that there is any configuration of perfect stability where there is no enhanced possible simply is not in the record it was their burden of proof to show both that under experimentation would be required when one picked up our cat specifications which is quite detailed and tells you what to your favor on those two patents versus a dismissal of the claims with respect to those two patents with prejudice for purposes of our had sex relations i will say that we requested when we got up to the motion to make the motion a trial we requested judgment of non infringement and that's what we want from the court whether there's a difference between not and dismissal with prejudice it's something we have to take up with the we would be more comfortable that we won't have a problem with with the judgment of no so if they had gone ahead with the agreement to dismiss with prejudice you wouldn't necessarily be out of the woods yet well what they had promised was to get our agreement