just for clarification consistently with the briefing i'll refer to the opponents collectively as shannon way you're looking at the question of whether the chip the district court had jurisdiction over the alec clingers let me clarify fr we've never had experts opine on the issue we haven't developed any factual record that would allow us to take a position on that right now there's just not evidence in the record that would allow that allow us to take that position i proceedings then did your opponent say well we really want it we intend to produce such a product and they have poor agrarians insufficient interest to bring it before the court your honor what happened is the separate declaratory judgment counterclaim that attacked the validity of the aloe claims the court denied the court granted shannon ways motion to strike that please send way had argued that it was far too late in the are i point out that the district court found expressively that the only claims asserted against senator med were the non our claims so if there was an affirmative defense to that assertion it would only attempted to do that in the court denied that request the court further found that there was no invalid counter claim with respect to the title claims in the case so there was never an assertion of a mistake of some kind there was never a factual finding of a mistake in fact it's hard to imagine that there could have been a mistake when sentiment actually tries to assert a declaratory judgment assert a power point and was denied and then later say while the representation not well would likely make this product and we are trying to make this product and therefore why don't we just take care of everything at once i'm not sure that he was influenced by that you're on her and i would point out that that they argued that the adult claims are obvious but they never stated any of this factual record in our response we pointed out that there was no factual record that would give the court any jurisdiction over the other claims only at that point now it for three years it never raised the issue and now wants the court to determine that there was an immediacy to the controversy between the parties on this issue it just certainly does not when you are the one that started i mean you're at least your initial there everyone admits as well there are so i don't think there was any question that we there was no question we were going to sort out all claims against a glove and very early on in the case in july i believe in two thousand and six and it's very first briefing first there are no records of any tests or analyses that would demonstrate what was on the eurostar lot of at the relevant time period this is an important fact because it led the discussed in the past and since my time is running low i want to just point out one important fact here and that is that dr randall wick schenn ways expert reviewed all the documents that are used by the the court did not find that dr wood gets that doctor it was only qualified they did not find that there was a problem with this methodology they did not find that his opinions were conclusory are not based on facts they simply ignored but meanwhile in response after response it's now this is the only product is this is it where is it something as critical as another product which is going through f d a clearance with it was never sold in the united states what happened was that a flight for f d a approval and then as mr harris says in his declaration as soon as we saw this lawsuit we stopped any attempts to commercialize it it never been commercialized in the us it really wasn't in play in the litigation in the sense of sales or damages however the declaration also makes clear that senator mitchell was very interested in pursuing the claims and if these claims are maintained is claims isn't there an obligation to come forward and say this is a problem this is an issue let's consider it whether at this stage we'd like to import your medication is following straightforward as i can my concern is that nothing more he said upfront until after discovery after everything and then all of a sudden well we really would like to have done this we've t jurisdiction and then they went to the merits they said that they talked about the prosecution history referred to their expert decks they didn't argue it they never asked for more discoveries or anything else that issue was completely briefed only and there's been no evidence that there was clear error on the district court when they did that there's been no showing of an abuse of discretion by the district court with respect to changing the case handling the counterclaim other rule in fact  were not asserting any of the our claims against the defendant after the summary judgment briefing they filed the motion for leave to file an amended counter claim which they limited they said here are the specific granted yes it was however our defense has been in every pleading and we were granted leave to him and dark answer and that's still a certain paragraph forty controversy with respect to this other problem yes and yes sir that's perhaps as complex a question whether or not the complaints did or didn't  what stage included the specific claims directed to reality but i cannot how do we get to the article three case your country received for a product that case you contrarious you aren't really this is much much more than just a desire to manufacture love when you file a five ten k with the government you're saying you have to detail specifications they even have a sample box of what the clubs are going to come in this is this isn't just an idea we want to do it development for greste very very far they read it they want to commercialize to do it they when they were sued they said well we better wait and if this is all resolved that we can go ahead the h p case which was decided last month basically says when you're charged with infringement there's definitely a case or controversy back complaint said enhanced clouds of enhanced gloves is not language from the complaint excuse me the patent pattern refers to skin conditioners kid waist arises anti inflammatory skin hansing is when we use that language covers all the claims because vitamin e is considered cloud before an infringement action absolutely and even if it was an apprehension of litigation we sued when your suit you you're entitled to resolve offenses and that's what we did can i before your time runs and can i ask you about the other side manufacturer the glove manufacture said i use the dark mr olson testified i tested the ostara powder which was put on the car to make love to make sure it had arab being in it because we had to comply with what we told the government there's no dispute here that the club actually had skin cancer properties we have several declarations that say when i put on the gloves i just dry when i first put it on and i took it off and i felt most arised this is the typical case of that which later infringes if earlier anticipates what happened is and even their experts it meant that the issue here is not how to make love's that was known the process for gloves  an issue is if you put a skin and hansing substance on the inside of the two up step papel that's their whole patent that's what the experts testified to and once you have the ostara love which indisput side issues there is no dispute that arity is on the gloves they say we don't know what for doris because they spoke to the specification and say oh it doesn't say arabic but it says oil oil comes from the opus scientific scientific literature it is it contains vitamin e all oil contained oil extracted from us using certain processes specifically the processes that were used by th the oil and the vitamin e what the patents have done to try and bottle up the record to say oh let's look at this other patent and if you use that other patent which there is no record whatsoever which used so if we can show vitamin e and a prior art club all the claims are valid and that's what we did ok question claim basis just by asserting a patent in a case does that mean that every claim in that patent that there's a case or controversy with respect their claim to the patent and judge freeman you would ask questions about when when did  then it's certainly not in the case and it wasn't there was no reference to those claims at any time during mark and so certainly at that point the district court would have been on us now with respect to the ost our arguments your  i know i don't have to tell you this but i really invite the court to look at this record because counsel for sentiment repeatedly says undisputed there is no issue of fact and in almost every case that's wrong i chance so we could look at labeling and be certified for bacterial contact because we had a specification within the five ten k that it had to meet he testified the five ten k required use of ford are in fact the five ten k importantly at page eighty five five one two nine of the record mr olson says he didn't even do this kitchen testing until nine hundred ninety nine mr bratton and dr redden that's the bottom of the production of any vitamin e but it is not in any of the marketing literature relating to ostara or to air or even that's been produced in this case and the quota seeing all this advertising and it's a very cornstarch i see my time's up pretty sure circuit court starts at that time had been associated with latex allergy problems and the industry was looking for an alternative so ostara came up with the idea that