with the time to hide those references and we know those references are us p t o documents which means the examiner was not reliant on the applicants or the prosecuting attorney disclose any further information or documentation to assess the representations made in either the specification counsel i understand this to be a failure to disclose case i understand this to be a misrepresentation yes or that is correct but from what i've seen from all the case law from this court is that in situations where the examiner is not reliant on any further disclosures even in that misrepresentation cases there are structures such there is always an instance of not disclosing something further test results use a different a compound who was the true author of the article there is always some other material shop believes the prior research shows they can get patent protection for the secondary aspects such as software to operate such a hardware system and then it said the same thing in the six way specification those are the same thing in this deposition testimony so the court may not agree with him but being he was testifying based on his reading that day but he also said that he had nothing to do with the communications back from the patent office and i would refer the court to j one one one four five through one one one four eight to understand the true context the describes a commercial system now the talks about the device it calls an invention the device hardware and talks about the different components within that device which is twenty eight in the charts and then it talks about how it would interact with what other stance of commercial system subscribers in the second issue if i have time is the issue of an equitable count if you don't mind i'd actually like you to reverse those of such you're in a little conduct but show me where the intense exists or a finding of an equitable car on the second of the district court's findings namely in the district court that you mis represented in amendment b when you claim that none of the prior art disclosed the busy misrepresentation as to sleepy they're not infringement expert jean right agreed that representation was false as to sleepy their own and consulted in technology expert involved in the prosecution at the time her evidence that lead to that and yet you start with the proposition that it was a misrepresentation their people agree it was they tried to say during the bench trial before the district court we believed what we said was true  may have been mistaken the district court judge moore was correct in rejecting that it's not credible based on the following up number one robert shap the prosecuting lawyer was well familiar with these two repartees as early as march signal well seem to me that he said in that letter and i know they don't do this so we will try and claim that or we can try and get my point is they made the representation it was false their people agree that it was false their good faith that selection that we may have believed what we said is not credible because they studied these references they were familiar with them they were or three million with them they told the patent office that they had very carefully examined both these references they then put together this information disclosure sta they had admittedly with respect to the software representation would have told the truth about want to talk about the software representation i haven't heard to give me a single piece of evidence that would even arguably support an inference of intent and i'm desperately trying to find it valuable to file and something already disclosed in the past where is the tend to deceive as requested by well they can had they done it the right way to an i d s they would have provided the example with copies of the references the required to read the specification i think what happened here judge larry is that the statements by the applicants lay the examiner away from these references had the examiner actually reviewed these references pull them in review them it seems to lead the examiner away from those records but how do you establish and turn on that basis granted materiality that let's assume materiality you is established how do you establish an clear intent that the same time killings even with a very carefully reviewed those references so it's the it's the combination of the evidence they very carefully examined this evidence the representations they made were pure be false as their own witnesses testified they discussed the references with the examiner in a manner that allowed them to avoid providing copies of references to the exam there was no evidence they intended to do that there is no evidence that they intended to avoid letting the all they had to do with spawn at that point the next day or the following day the examiner would have had copies of the records as it would have had him in the manner that the in a manner that the impeached piece said you have to review it now couldn't they have decided there was no story might have made sense at the office actually come in that day or the next day or the day after but it didn't it came in one year in two months later they put the i d s together and got it ready to to the four five decisions of this corps that suggestion certain circumstances that reasonable argument about references before the examiner is ok let me just make two points to judge larry about that the first is that the examiner has the art before him or her it can make his or her own decisions here i suggest that the sort of overwhelming weight of the evidence is that the examiner was led away from these references and never really considered but there's no indication a fall that happened more important the decisions of this score indicate that even when we examined her hastily aren't there is a line that you cannot cross this court negligence case it was reckless indifference case this attorney messed up he messed up he made a misrepresentation that's your point say i agree with it but i have to find that he intentionally did this man with forty five years of prosecution experience see one i'm sorry a one and it's the language that says the list of information about the prowar may not be incorporated in the specification of the application in which it is being supplied  i think it needs to be done through an i d s and here the argument had the effect i think of not causing the examiner to review the art but the opposite it the misrepresentations led him away from the art and i guess tying into the intent to deceive point  again that they could do the right way they got the idea it's actually ready to find out and then made the decision not to file it so as they're making these misrepresentations they're making them in a manner that did not require them to write copies of the page twenty six of their brief they do not dispute the order of claim stamps which is dispositive with respect to one hundred percent of the system they try to do it in run around the order of claim steps by the ancient constructions of allowing  what they propose is a non ordinary meaning but there is no definition set forth in the specification but isn't the point that you can terminate a telephone call if if the line is busy before you determine whether the line is busy the day what they're trying to do your honor is to regain through playing construction what they gave up the prosecution in prosecution they said mr examiner we're different unlike all the powers we play  media you can also put after we've established a phone call between us that they can you can play at their music in the background or we talk on the part that a lot of periods you can send media to but the only period protected by six away is the ring back tone period so if they determine the callers identity  i counsel clients give us a quick question fisher the brink's designate nearly every mention of the patent attorney and his involvement as confidential yet much of this appears in the district court opinion so i'm just wondering you know as we prepare to