good morning everyone know mr gates before you approach let me just announce that the panel has before one case being decided later today just from the brief without oral argument that is appeal thirty two ninety proceed good morning and may please the court this court said in northern telecom vs datapoint about twenty years ago that an equitable conduct should not should be determined in light of the realities of patent practice and not as a matter of strict liability whatever the nature of the action for the p t o the district court in this case didn't follow guns instead what was their routine act upon prosecutions has been magnified out of in i believe the summary judgment standard has to apply that's the standard that the magistrate judge and the district court applied in finding that there were no disputed issues of terril fact i also think because of the importance of the issue in equitable conduct that if there are disputed issues of fact the court should have an evidentiary hearing and resolve those issues in accordance with the normal procedure did did your side ever ask for an evidentiary hearing we did after the hearing on the motion judge that there wouldn't be a trial like proceeding that the motion including the underlying issue of inequitable conduct was going to be decided as if it were a summary judgment proceed honor i don't believe that that was ever decided one way or the other that the hearing was scheduled on the motion without it could have been at your hearing and i admit we did not ask at that time and asked him we bring white witnesses we understood that it would be an argument on the papers but if they were disputed issues of fact as it turned out there should have been isn't it isn't it the case that your side put in some additional documents by leave of the magistrate judge at that hearing yes we did and then why shouldn't we perhaps conclude that if you wanted to present live testimony or yet further documents you knew that was your chance that was your you know speak now or forever hold your peace moment and if your side i know wasn't you and your firm were just your side didn't at that point say judge we've got to have an evidentiary hearing or judge at least let us put in some affidavits because are some issues here that aren't that aren't well frame we did not do that here on earth and we could have at that time but we did not understand also that the judge was going to resolve this saying the word the disputed issues of fact your honor we believe that this was so far from an equitable conduct that we wouldn't even get to the point that the evidence the record that been presented was so far of the thresholds of materiality and intent that it wouldn't be even reach that point where does that mean that we could say that you proceeded on the assumption that a summary judgment disposition would be fine and that you were so confident you would win that you weren't interested in putting in more evidence the extent evidence you thought was a sure win for you so therefore we shouldn't hear a complaint now that you actually wanted a trial that's a fair point your honor and i have to admit that the procedure that this came up on it is a little confusing because it's on a motion for attorney's fees which is not normally handle and the normal course as an equitable conduct is whether there's a summary judgment motion we may have gotten that wrong but we certainly did not think that this evidence rose to  level of an equitable conduct and we did ask for an evidentiary hearing have to word for purposes of this argument i would still contend that what's on the record now is not enough so that's really our first argument as well even if there is no eviden ary hearing i mean what kind of animal is this mean how do we i'm a little confused because whether us for an evidentiary hearing or not i still have to figure out whether this was a decision made in a summary judgment like fashion or whether this was a decision made at the conclusion of something more akin to a trial and i realize it doesn't fit squarely in either but i'm not positive the absence of your request for an evidentiary hearing dictates what which one i treat it like i think that that's true the only the best goings we have is what the judge judge the magistrate judge said she was doing and what the district court judge said as well she treated it as summary judgment applied the summary judgment standard said there were no disputed issues of material fact i think it should be reviewed on that basis because that's the way the court decided but having said that the evidence that was before the court i don't believe rises to the level of from the record of nor ceases deposition that something like half of the answers sought were blocked by attorney objection yes so if if your side's position was well we know that nor sees can justify what he did in what he didn't do but you also knew that his deposition was very incomplete it wasn't a burden on you to fill in the gaps in his deposition through an affidavit or some like manner if you look at his deposition i believe there is enough there he answered a lot of questions he answered a lot more than were checked he explained that he didn't believe this that your main application was material there were questions that went to his state of mind is mental impressions that there was a work product objection to but didn't judge steve's i'm trying to recall didn't judge a devious complain about the incompleteness all color of the explanation by narcy says the prosecuting attorney of the patent application yes those kind of held against him it was so it shouldn't your side of been able to predict that the gaps in his deposition would be held against him not not at this court's case because the internet is an equitable conduct situation even if there is no credible explanation for what happened that can't be held against us there has to be other evidence of int let me at let me ask you this if we may not have spelled the cell but wouldn't it maybe be a logical paradigm to say that if the defendant in the case who's attacking the  patent puts on a strong case of materiality and intent that at that point a burden shifts i guess we might call it a burden of production shor consistent with the case law and appropriate in a circumstance like this very case i believe that's consistent with the case law but i don't think that's what would have happened here because i don't think that that strong case of an equitable conduct was made up of the first place it taking the practice here paradigm in that opinion we talked about high immaterial or is it your view that there was no indication here of high materiality and for that reason there couldn't be any shifting of any sort of burden that would certainly be one of the points as it is the judge did in this case the magistrate judge found that the threshold of materiality had been met that it would have been important to a reasonable examiner but refused to go any farther would you think praxair can be limited to the circumstances of where high in materiality has been found in order to trigger some burden of coming forward with an explanation by the prosecutor i think that it's one way to reconcile that case with some of the  case and that's certainly not the situation here although the judge did say it was highly material that's not backed up in the record or really in the findings high materiality judge davis it judge davis as well as the magistrate judge we're treating them make a prime aphasia case well the judge you can't impose on us because of our case law and the panel bound by it that we're not limited by the p c o s definition of the but for sort of approach the threshold but if all you do is meet the threshold then you certainly haven't met that higher degree of materiality to say it would have been important to a reasonable examiner but what would he have done with that way it's a you suggest i mean what is the case and to get higher to so how do you so what's your view of how you get to the highest level materiality well there are other levels there's a primal facia case that the examiner could have made and there is u information those thirty the final range important to reasonable examiner is the threshold that's the bottom that's what this court has said is the broadest so what will happen on the specific facts of this case is what about with respect to inventor ship if the withheld germane patent application had been put before the examiner it would have been wouldn't it have been logical for the examiners say wait a minute i got the same claims in these in these two applications but two totally different sets of inventors there might be an inventor ship problem here i better look into it i better ask these parties to put in some declarations or whatever so i can sort out this issue whereas because the  application was not given to the examiner it would have never occurred to him that there might be a question about whether inventor ship was inappropriate in one or the other of these applications yes let me first start by saying there is no question of an event or ship that's there is no information here that would show that the in a better ship was wrong germain might have led the examiner down the wrong path i agree yeah but but but my point is regardless of outcome if putting in the term mean application to the examiner would have alerted him that there might be an issue however it might properly be decided in the end of the analysis it would tell him he'd better do an inventor ship analysis where withholding it he's blindsided he doesn't know there's any possibility of an inventor ship analysis so why isn't it important that he were it important to the examiner to at least know whether there's a potential issue that he should examine letters do not routinely look at infection issues this might have triggered something but it would have triggered something wrong because there is no issue of inventor ship it's like submitting a reference to the examiner that is clearly not prior have done that wrong but here there is no doubt the inventor ship was correct so although germane might conceivably have caused the examiner to think that there was something going on there wasn't and what about  pad the same you know questions arise with spec to it without the germane application the examiner would have never thought there might be a double paddling issue if it had been put before him he could have big sam in that issue and decided whether to mount of anything or not but he again was blindsided because that your main application was never submitted to him well let me be clear on that the seven six six patent was submitted in their germane application when i was a double rejection after the seven sixty six issue right a was under examination yes why wasn't the jury mean application given in that examination to the examiner so that the examiner could see that maybe there's a problem they hear not only of inventor ship but also a double patent maybe not maybe he would have decided it's a false good no problem but by withholding it he doesn't even know that there's a potential issue here whether it's early or priority or not an earlier priority that in both examinations the other should be put on the table before the exam the other thing i would point out is in the seven six six pound there already was a terminal disclaimer file and that it would do it it would expire five years before the german application so although there are other aspects to double patenting and they have to be a common abyssinian those sort of things in the normal course of things p t that's not what would happen here but the first application would issue because as the earlier priority date the double patterning rejection would be made in germany and that's what happened here let me ask you a question about it or even made i guess mostly in a footnote by the other side is that your client has sued the prosecuting attorneys or at least the law firm of the prosecuting attorneys and as i read the footnote it suggested that the grab him and the poor of the lawsuit was in effect an admission or a verdict that material information had been withheld from the examiner by those very same attorneys well that's not to you tell us about your date of that lawsuit or there what the allegations in complaint are or are not i believe the complaint because in the very end of your appendix at the very tail end of the last thing it doesn't clued a number of allegations against the law firm but go much farther than beyond this particular situation and the outcome of that may in part depend on what this court does with an equitable conduct there are different standards involved there is a negligence standard with them when it's involves professional responsibility and misconduct and we're talking about an equitable conduct which is a much higher standard a a bit but but but what i'm asking for sort of a more of a factual and since they suggest i thought in their brief in the footnote that you've been affected mi misconduct by the lawyers from that firm who prosecuted the the patent an issue here because of what you've said in the complaint i think if you read the complaint it does not say that it doesn't publish that there were derelict in their professional responsibility but that's not the same thing as conceding an equitable comp and what's the status today of that was that there has been a motion to dismiss in that case and i believe it's currently stay but there will be a hearing at the end  so as of yet there's no adjudication on any issue in that loss there is not know what exactly is your evidence that race is a genuine issue on intent which a ratio of fact what exactly what tell me what is your best evidence that race is a genuine issue and it would be clouding our ceases deposition testimony and what in particular does he say that you think raises a genuine issue of whether or not he intended he said he did not think germane was material because because it was not prior art but isn't it clear that in addition to prior art there's other there other is there is other types of information that cannot properly be withheld from an exam that's true but that's sort of leaves a hole in his assertion that it was it wasn't material because it was in prior art but we all agree that some non prior things can nevertheless be material that's true but for purposes of summary judgment you have to take him at his word he did not believe it was material because he did not believe it was prior art he may have been wrong but that is what he believes and whether it's a credible explanation or not it is his explanation do we do we have to take him at his word if it seems absurd this is a hypothetical question i'm not actually meaning to comment that i think that i just mean what what is the level at which i mean obviously litigants could come in trying to avoid summary judgment by saying anything at all and we don't accept as gospel all of those things if they're totally outrageous and inconsistent with everything else so what is the standard that i look at when i assess whether or not that creates a genuine issue of fact i think as you've said there has to be a point where an explanation like that would no longer be plausible but here's a certainly his experience not trying but it also reflects on his credibility that they must believe that what he said was untrue because if he subjectively believe that this was not material that is important in assessing a time i don't know how it cannot this case for based on what he did do you think that his long experience nor ceases long experience actually cuts in your favor as opposed to against you as the two judges seem to hold your honor i could i can see that going both ways somebody who has experience should know more but on the other hand he also knows the way how the patent office operates and i believe what he was doing was correct so is great isn't length of experience did to me it was not appropriate to send that into the exam we did not but you could because we did not but his testimony is that he did not believe it was material he has an explanation for that because i thought it was not right that's right and i have i have addressed the particular regulation that deals with copying certainly the title of that regulation his request for an interview or briefing is very clear and explicit ok thank you all right thank you now we'll hear from normally normally before an equitable conduct is found we have a trial especially the case of withholding now if an applicant flat out lies and it's right there in the documents then you might not need a trial but in a case where the inequitable conduct is based exclusively on the idea that something was withheld that should have been submitted to the examiner to not have a trial very unusual i can't remember a summary judgment in extra ball conduct in the middle of discovery as we read from the magistrate's opinion she's about to grant a motion to require them to actually answer a number the questions they have to be answered when that's right and when and how they dismissed the case is not an issue in this right but but but your honest question was about whether the the magistrate judge should have held a bench trial and if i may refer to you to page eight thirteen ninety three no four of the appendix levitan discourages is that they made a bed tactical judgement they should have to live with the consequences they didn't ask for a hearing too late now for them to say they wish that there had been here well not only did they not ask for a hearing your honor they actively discouraged the magistrate judge from holding a hearing numerous non answers were proper objections or not right now there is no there had not been a really and what if there had been a ruling on your motion to compel answers there might have been answers that would have needed this case great there may well have been yes r but frankly we can never know what those answers were going to be that's my problem is that there's some black holes in this in this case where we have a kind of a half an explanation from the r c c but we really don't have the whole story from our seats because his then lawyers blocked him from answering a very large portion of the question that's right and the case lot from this court and others it is clear that bear denial of and of intent to deceive for example it's not material yes exactly right counsel i have to bring you back because i feel that you made a misrepresentation of this court and i don't find it to be very palatable in footnote four on page eight thirteen ninety three to be clear what the  said was thus in order to rule on mayo's motion the court would need to reopen discovery and conduct a bench trial in an equitable conduct and exercise that we be totally unjustified for the reasons we say in this opposition they make it clear that if the court's going to rule on an equitable conduct they absolutely would have to have a bench trial they only say it's unjustified because they say we've provided adequate explanation that would obviate the need for that bench trial but if you're going to rule on an equitable conduct you absolutely would have to have a bench trial and i think you characterize to this court that they said a bench trial is totally unjustified and i don't think that that's very fair so i apologise certainly didn't mean to mischaracterize that any way shape or form your honor your honour's right with their point is if you want to if you want to rule from a house you should hold a bench trial because there are disputed issues of fact and what you told the score was that they told the court to have a bench suggest that if you're going to rule against us we assert our right to a trial if you rule for us we don't want to trial but if you're going to rule against us you've got to first give us a trial why is why wasn't that a fear position for them to take and take clearly and and yet the magistrate judge did rule not stray off the point at the moment that they told the magistri if you're going to rule for us we agree that no hearing is needed but if you're leaning to rule against us we're demanding a that position if you're going to rule against us you first got to give us a trial i think it is i think it's improper for them to suggest that we need to have multiple opportunities here there was a hearing that the magistrate judge conducted they had every opportunity i and yes answer yes it's improper they aren't allowed to demand a trial in the face of adverse ruling i think that is improper your honor and why i think that it's simply improper to suggest that that we when and if we don't when we should get additional process what herman it's contrary to it's a time saver it's a time saver there's a look we think our cases of strong you're the judge you may disagree if you disagree that's your right but in that event let us have a trial because if the judge agrees with them everybody saved a lot of time and money in trouble including court time which is very scarce on the other hand if the ruling is likely to be adverse to them then we have to spend the money and time in the trial and have the normal proceeding on a withholding type inequitable conduct charge of trial right and once again they had every opportunity to put in any and all evidence they wish to do so we could have seen decorations for mercy's we could have seen r c show up at the hearing and often offer live testimony but that didn't happen they made no effort whatsoever to do that canelo that they tried to preserve the right to bring in our seats by saying if you're leaning to rule against us first give us a trial because obviously at the trial who they would bring in just darcy may be right i guess i'm a little unclear on one thing and i guess obviously there's some just disagreement as to how one is reading but no but i read the footnote to just say so tell me if i'm wrong that in order to rule on the motion you need to do this in other words not necessarily saying you're going to just give us this hearing but in order to rule on the motion one way or another that is is that the way you read it and so did they ever pursue this in any way shape or form during the hearing that they had before the judge you know you so they never referenced again they've never referred they never referenced again they never made any effort to actually bring the witnesses they never made any effort to submit declaration were certainly never seen a proffer a counter ceases testimony live testimony could in any way expand upon the issues that were addressed by fairly i think interest deposition albeit with the cut off  this what if we were to affirm wouldn't practical effect of this patent be it's totally dead as to all comers forever i think it would be very difficult as a tactical and practical matter to enforce it it is not or i think will be very difficult for them to foresee but i thought actually monsanto says unimportance ability is automatic from a determination of an equitable conduct in my mis remembering that case i didn't understand it to suggest a separate judgment paper  i mean the case has been dismissed that's all we have before us that's open is a motion for attorney's fees that's right so it's not clear to me how i mean i think you could find in equitable conduct but in terms of the patents clearing the patent on the force i think it would be a stretch well if they were interstate and if i may that if that is the point that i was trying to trying to get out there is no there is no judgment about it for stability there is nothing that has been entered by the district court infringer and it's pointed out to me that the federal circuit has a survey affirmed fees explicitly based on an equitable conduct under district judge in the later case do i have any choice other than to dismiss th issues we have in front of us are not extremely serious issues they are it's extremely serious whether mr nor cease and the other attorneys agreement crowd committed an act of conduct it's in a very serious whether they committed act which conduct not just in the copying of the withholding of survey but we also have the failure to disclose related litigations that we haven't spent much time on but i will tell you i think is the simplest issue in this case and can be dispositive of this case litigation is conduct i think the other side's response to that that in a minimum that would require some apportionment sending it back isn't that wouldn't we at least have to have somebody evaluate whether apportionment we've been acquired if we declined to rule on an equitable conduct or whatever and just went on involving the parent patents of the seven six six these parent patents their patents from which the seven six six purports to continue or continue in part and then are easier to do have they've disputed materiality with respect to that as well right only dispute arise with respect to that and i don't think so i think i think the issues there are a little bit different here are and i think the issues there are are different because lebanon's argument is that it shouldn't be required to disclose in lest there are unless there who tiriel in other material information arising out of those cases as well as the fact of of litigation well this court's case law and the m p e p are both clear on this point if you refer to section two thousand and one zero six c of the m p p you will find that it requires wolf the facts of related litigation and separately requires the material information arising therefrom to be disclosed to the to the patent litigation the fact of related litigation is material per se now doesn't argue that that's wrong it doesn't argue that notion should be overturned it just argues that in fact it should require both the fact of litigation and  thing there is absolutely nothing in the record even a limited set every up today there is nothing in the record to explain why he didn't well didn't disclose related litigation that he himself was involved in i don't like it off argument and maybe it was just in the briefs here on the papers there is nothing about that in mr morsi says deposition of course he couldn't have known that at the time that they filed the application for the seven six six cut because they would look at litigation the ongoing was there any final result in any of these related litigations as of the time that the prosecution that led to the patent to conclude i couldn't tell you off the top my head were there any of the cases had been resolved i kno some work were ongoing leviton has never received a judgment on the merits in its favor in any of those cases similar to the question whether the real important point you didn't receive any adverse ruling was that the patent examiner sure as hell would have wanted to know about now i believe my recollection your honor is that all of those cases were either resolved or there were or in one case this court affirmed a finding of not infringement based on claims and so there was there were there were fifty to the extent there were rulings in those related yes he was attending here instep is there any evidence in the record can we put together in the record the fact that he at the time that he was prosecuting the seven six six the litigation which he was involved this had not yet been resolved disclosed to the examiner and you referenced the nielsen cases having in some sense adopted or followed or blessed whatever the right for might be that particular case well of course but that's not the question the question is whether we're bound to follow every line in every m p e p provision in the context of inequitable conduct  involvement in the litigation he's well aware of it and it is never disclosed it will have a significantly knowledge i give you that it's knowledge but knowledge doesn't rise to the level of intent well what what what is the standard you'd like us to apply to this or page in whole this into an intent well i think there is evidence of intent here and the evidence of intent is that he knew about it knew that he had to do disclose it and didn't do didn't do it when it's presumed to prison home before going to presume because that's going to raise its own problem for me what exactly do you mean he knew about it had to do disclose it because that standard wouldn't capsule every time someone knows about a piece of prior are and doesn't disclose it so that to me certainly cannot be our standard requires him immediately tell tell the examiner the minute a lawsuit has been filed involving any related marketing to this that may be true or on a bit but with respect we're not talking about you know something that was filed because the minute before the seven six six application is filed we're talking about years of ongoing litigation involving that head hadn't reached any conclusion you said earlier that's right so it's the mere tendency of a lawsuit when you're saying well if we were to just agree with the other saeed in terms of the standard of review that applicable here what if we thought that it's not the summary judgment you know boasting because this is a motion for attorneys and i think it's to point out the  motion for attorney's fees i e a regular case of an equitable conduct would have a different standard if you well that is the point that i was trying to make earlier on or there is there's not going to be a judgment o whether it's race like not the legal i think it may not be i think it is certainly a debatable point whether that's the legal effect now i have the impression counsel that you are in effect saying  e didn't give a good enough explanation of his conduct and therefore that greece is it's appropriate in fear to find us a fact that he had intent to deceive the patent on the challenger of the patent to prove he's guilty of an equitable conduct particularly with respect to required intent well i think we have proven that i think the fact that they brought in frivolous work product claims to cut off the answers that those were frivolous objections that is that is part of the basis for her conclusion that level of commitment litigation misconduct but what about the burden of proof question i'm still troubled by this idea that since the patent prosecutor didn't give a stronger explanation that the gaps in his explanation are affirmative proof of intent to deceive i don't see how we get there well for example in the time they kill in africa cases both of those cases involved situations where we had  applications that were that were prosecuted by the same attorneys and had known how we were well agreed he knew everything he knew about the pending litigation he he knew about the other patents he was involved in the prosecution of all the patents and in almost all of the asian of course he knew that the question is whether he had deceptive intent and to the extent you're saying why he had deceptive intent because we don't think it's explanation was very good that sounds like you're shifting the burden of you on to him which doesn't seem consistent with our case law but i don't think i don't think we're shifting the burden of proof but if i may finish my thought i think it's i'm trying to answer is your question sir is that in both of those cases that knowledge and failure if failure to act where an awareness of the of the risk wasn't what would have been enough but for other circumstances not present in this case would have been enough to find an intent to deceive that's true in both acronym dado and there are other other arguing that at that juncture given the other facts that were of record and not disputable that narcy side had to give a damn good explanation or he was going to get hung for an equitable conduct and that sounds like shifting the burden i don't i don't think we are shifting the counsel in this case have their own financial interest in obtaining a new path and that can be litigated against same case same companies they've been up against before which is precisely what happened and c s and his supervisors have represented litigation that they knew was going to come out of the times doesn't i mean give me a run but don't a lot of firms who prosecute patents actually have a good client relationship and want to represent those clients in litigation i mean that to me sounds like it's not a cases but it is per part of i think what's actually going on is they're trying to move this particular patent application with the copy claims through the patent office as quickly as possible so that they can obtain new litigation this is true both love and this is all your on it and you know what you might be right and a fact finder might actually agree with you but done in the context of a no genuine issue of material fact is what's i'm finding so troubling and i understand that you're here on earth but as we've said before i think  think the basic facts of this case are not disputed i think that i don't think they'll agree with you on motive that's just my guess you may be right about eight hundred no what about the fact that the attacker in an inequitable conduct charge an elevated burden of proof they not only have to carry the burden of proof all the way to the goal on and it doesn't shift and as i understand law but they have to do it by clear and convincing evidence so where's the clear  convincing evidence here that when he didn't submit that your main application his state of mind was i'm going to fool the patent examiner i'm going to cheat i'm going to law i am going to steal a patent because that's what i want to do when we're clear and convincing evidence of that as i said i think we have we have issues of motive i think we have experience prosecutor who knows all the rules and knows all the facts those who knows what he's doing you're your honour's case law is clear possibility here that's a good reason for him not not to disclose they're trying to move this through quickly they don't want to mess up their petition to make special by disclosing all of this messy information that as mr jakes acknowledges is at least going to require the examiner to go back and take a harder look whatever the examiner may or may not decide but is going to require the zener to go back and take a harder look all right thank you thank you mr jakes give you back the time you sought to reserve because we have a great many questions of you and opposing counsel thank you your honor if i could start with just talking about the burden of proof the lack of intent to deceive what the judge relied on here was really materiality finding that the information was material and that in our seats had knowledge that's really the foundation of the intent to deceive and that can't be because this court case law is set or to disclose doesn't presume intent to deceive let me ask you a question about how you read praxair i read and reread and reread the three part test of practice here my interpretation of it is that it only applies where the proof shows that the prosecuting patent attorney not only knew of the information but knew that it was highly material you agree with and i believe that case has to be read though even then its intention with down to gross negligence because gross negligence could explain both of those factors i think that assumes that if you have those two that is something more than gross well that that goes to the phrase in the same portion of the praxair test of should have no you know i'm putting aside should have no i'm just focusing on the idea that seem to be embedded in that standard in the practice here opinion that it only applies if the prosecuting attorney knew that the information he was not submitting was highly material not just material but highly material yes you can see a situation the attorney was highly material and forgot that would be gross negligence but not necessarily an intent to deceive so i think there is some tension with chains down and that fine and i would assume that your argument here would be that even if judge michelle's suggested interpretation is correct reset lockout feature which is not in the seven six six pounds so it is a related litigation well perhaps but simply saying that there's not enough to say that it's material if there had been a and invalidity determination in there that was highly relevant that would be different perhaps that's different but there could be other information from that litigation that could be expert reports there could be prior art we haven't seen any of that how do we judge whether that information might have been entirely cumulative of what was already in if he did testify that he understood he was familiar with the m p b i don't believe there's any testimony that it was familiar with this particular rule regulation he certainly was familiar with the litigations but were the int think falls apart because if you focus on let's take away his explanation entirely suppose he hadn't testified at all there would still be no evidence of an intent to the sea because all take the single most reasonable inference and that's what they use in the context of intent let me start if it doesn't say you can't draw any inference is about anything you can always try and inference in the context yes and and where there are more than one reasonable inference you can find the one that ensures an equitable comp if there is another explanation what's the reasonable inference here from mr r c c if he didn't believe it was priority or material didn't think it was private or prior art and therefore it was not material there's a lot of i think you're right i think they said or and it was true his testimony is he did not think it was material and the reason was because it was not prior you look at the sequence agree that that's wrong but you've maintained that most happen terry probably have the same view that's what they're concerned with mostly as prior art and if you look at the sequence of these applications you file a continuation  of what about this problem if the defense here is well it may be wrong but it's what the vast majority of patent prosecutors actually believe wasn't it the burden of your side to bring in some affidavit evidence or deposition testimony of a number of patent prosecutors that technically may be under n p t e p provision blah blah it's actually defined as material but we all assume that if it isn't prior art it just isn't it can't be mat and you didn't put in such as we did not we did not put in why did that favor additional evidence why don't why isn't that fake i mean even if i agree with you that most patent attorneys may think only prior art creates materiality if there's no record evidence of that in this proceeding then why isn't that fatal to your case i don't think it's fatal i think the can say this explanation is plausible without having that confirmed by a hundred on the related litigations i should point out the district court did not include that in his opinion it was only in the magistrate judge's opinion that is not repeated that took that as i said that dealt with pen the pound patents on a different feature and to equate that is to per se materiality time because it's a very important and difficult complicated case we appreciate here for even a briefing by both attorneys will take the appeal under advi