interpretation of evil motive that might make this case different but for the purpose of argument for the moment at least the sume are not going to accept the idea of evil purpose by an experienced trial then what is your answer to judge mayor's question what harm to your client from this this particular sequence of issues as they were trust instructed as i recall about the presumption of libby and the jury was told ten times according to the opposing side three that the burden of proof was on the challenger so if the jury was instructed about the presumption of literacy and caution ten times as to who had the burden of proof then how are you prejudiced unless great it was assumed that that is a jury violated the instruction of the judges and bottom position that the burden of proof was shifted to use the patentee to prove that your patent was not invalid they bear the burden of proving invalidity that's why they would be asked to go first but you're trying to make it sound like when they were asked to go first somehow that's put the burden on us that doesn't make any sense to me  thank you mr consent being given mr o'donnell is already again an sworn testified so to speak from the podium that he never did consent how can we possibly decide whose recollection or version of this  he invites us to find plane error in this circumstance where the challenger was allowed to consume the first five days of trial attacking the patent when the suit brought by the pla or none of the play in their rule as it's less on gravely mistaken says an appellate court can reverse even in the absence of an objection if it rises to the very high requirement of plain air you can argue it not responsive to his art his argument essentially is this one and only jury was prejudiced against my client because for the first five days when i should have been explaining the invention any infringement the thing he complains about is that the validity issue and the attack on the patent was allowed to kill first that's all he's complaining about not the segmentation and that it's part of the answer to your art when you that the burdens were misdescribed by the judge he's arguing that the effect of five days of attacks on the past at the outset of his infringement case by the jury and made it i brought the lawsuit the lawsuit charges liability for infringement i should be able to put on my case of liability for infringement first invalidity of the asserted patents is trial started that was an affirmative defense being put on by the defendant as opposed to the norm and he would say his entitle mmon that the infringement trial should start are i take it that what he's challenging is the sequence he's saying you could segment the trial you could even have separate juries you could have time gaps between different segments of the trial like you couldn't try the defense before you try the complaint it had to be offered the first time it was relevant which would have been in the infringement and it wasn't offered then and so he said it's too late that's different from saying in thier own no i we don't and that everything that doesn't respond to the point you had at the time of the infringement trial you could have put it in you didn't put it in your put it in a later phase and the judge says none are not letting evidence come in in the and you say that but it's not clear to me why one should gauge that to be an abuse of discretion why isn't that a proper discretion in order to have an orderly trial if there are eight phases and i have a document that is relevant to all eight phases i should have to introduce that document in phase one and not wait till phase eight that seems like a reasonable trial management rule