i need an explanation let's suppose for argument's sake that we disagree with you that it was a rigid requirement and that all she was saying was in this case this is sufficiently complex that i think indigent expert does  are sufficient factual findings in that to create a genuine issue on the same issues the district court wanted an expert for that's one possible explanation but the real explanation your honor is that the question here is but for material not in question of whether the and losing on the expert testimony issue with the pedal to you is not zero well it depends what the court understands the requirement to be if this court agree that expert testimony is required simply because of complexity then we of policy by congress would probably get a rule that had the following components number one assuming collateral estoppel is not applicable you cannot introduce the exception your other targets executive agency it's federal it's agency actions that we're concerned about whether the agency conducts its investigation through a hearing or through more traditional on the on the ground investigation the point is that those investigations are presumed to be different feeling it would i am not as familiar with the court of international trade or other but if it's not an investigation as if that is the trigger here then it wouldn't get this treaty that's right i do think it's important to note that every court that has grappled with this question has said ailill j determination me that basically what you were doing was saying here we're two tribunal's want to court and what it ministry a body that reaches conclusions you don't need to go any further and you agree now that judge fogel's decision can't provide evidence for so it seems to me that you've done very little to preserve this eight zero three you argue of it in the sense that you never really specifically said this is factual evidence you were citing that at least the way i read judgment you're not just citing the l g s that decision you're citing judge fogel's decision usually first and then the l g descension that's correct your honor but i do think the way this was presented to the district court is relevant here well i think it is and i think it's very confusing to the district court the way you've set this up which is huge judge fogel hears the id see we don't need a pre op put on any more evidence without kind of separating them out i mean i think i understand your point on eight o three it seems to be you now agree correctly rejected as you correctly rejected that they're not the issue for those of your audience but we were citing this as a coveted and i really would like the court to understand the way in which this came to pass what happened was we cited it as evidence in our background section and then  citing two different decisions of tribunal's as evidence and one of them is clearly not evidence i agree with you that it could have been more of leaves on your honor but even there the point is we were citing both as evidence we were wrong about one but we were right about the other and the other is sufficient to survive  to the intent issue sure as you know you're looking down the barrel of a very vigorous standard for proving the kind of intent that's necessary  be questionable in light of john strong conclusions such as inconsistency some testimony and pointing out that for example one of the prior prior patents i think the five sixty  patent was as far as he could see not shown to be related to the patent suit also the database that you rely on heavily apparently it had many many entries i think at least thirteen hundred nineteen i think that whether a prior had been rejected on the basis of j p one hundred and that we agree is not here but all the other evidence in this case rather than our single best piece of evidence is santas retention of simcoe in the three thirty eight reexamined but i look carefully at the testimony that and i don't see that that testimony says he was hired connection with the three thirty eight it says he was hired in connection with the id seem three eighty two investigation what is there that says he was refers to the three eighty two not the three thirty eight correct that are understood so i thought it would be helpful if we could establish for sure whether she made any kind of i guess it's not really a finding it's on summary judgment since we don't have any interest in actually on the five one seven at all well what about the a no three eight issue on the merits as opposed to whether it's been preserved what judge armstrong did not exclude there is no discussion whatsoever of hearsay what she was excluded on was the basis that it was a different record than the one that was before her and she did that after citing this court with legal determination to get definitions of the claims so rather than just setting out to see whether the barges were correctly tied up if i did she is going to start with a number of legal conclusion whether we have to have a rule for all purposes on those but for anything that starts with claims construction we're not talking about a factual investigation we're talking about starting with legal  those to the facts and then coming up with open theirself actual determination i mean that's what i find kind of troubling about this this argument you're making is the i t c certainly makes underlying factual determinations and reaching all of its conclusions and if a l j decisions are admissible in other areas for those kind of actual conclusions why shouldn't they be here so actually in other areas somebody goes out on the field and starts investigating the facts six and expert witness disclosure because but we never get to cross examine dr pashley or any of the other a lot about what we did we haven't touched on one other aspect of this which we did with your friend which is if we're only left with the completely separate issues because even if you lack the a l j soprani and there may not be any need for interpretation but there sure need for explanation and only an expert witness is going to be able to just equivalent structure for each of those in terms of what the p t o would have done that would they have found that there was a material basis for designing the patents in this case without expert explanation wh total lack of expert testimony to explain to somebody what it meant thank you thank you very much i don't see a finding there is a reference in your argument you made on page twenty four which is quoting your argument from judge focal correct article we don't know what's going on here is that this is all your argument where did she specifically mak the proceedings before touch follicle and you didn't introduce any of that evidence and you're trying to a lot on mostly what judge phone call you did before and him and it's just not enough to create a genuine issue of what we're i do want to direct you to we did in fact  what the court should have done is a balance of the same way that was the argument that we were making at the very same evidence was present in both cases we presented that evidence and said you should reach the same conclusion that focal did in summary judgment but what evidence i mean of the evidence or are you talking about that ambiguous deposition testimony is there anything more specific about the guys higher at that because that the hiring of the consultant i mean if he certainly was hired to work on that reexamination seems like a good point  same searches you ran the first time around and natural inference there is asking an awful lot of the district court to go around searching through the record to find something in exhibit thirteen that you didn't point out in your brief there are enough there are but i