five are women which makes me feel good but in any event i will proceed with this case just after my commentary there and ms bork you have five minutes for r conduct was an abuse of discretion and is in conflict with this court's precedents number two there were disputed issues of material fact each of the required elements of equitable stoffel and number three there were undisputed facts pertaining to dr fine's intentional copying a fairy's work that were not addressed by the court  what i am saying is that when the scope of the issued patents are different that what was before the parties that led to the alleged misleading conduct or in action then the defense of equitable estoppel tend not apply to pending claims during the examination of a patent application that the precedents set forth and radio system dialogue back and forth that you argue that there wasn't a complete obviously meeting of the minds on the dialogue back and forth and that that you didn't understand that that doctrine was talking about something beyond the do not believe that it is but let me let me back up a minute in the opposition brief there was a reference to the fact that the correspondence  from what the scope of the claims were that issued and i do believe there was an argument that was made in our opposition briefing that some page appendix  three that that our going to not even attempt to argue that the letter in exhibit eighteen which is one of the brands of letters evidence a threat a formal action to correct and then our ship which is this the substantial legal claim at issue here nor could it the statute and case law requires that a patent issue purport so that was the extent of it that issue what was recognized by the defendants in their reply brief when they submitted and exhibit b where they compared the patent application reliance or for prejudice you do go into a discussion about the back and forth on the letters but i don't see a legal discussion about this per se rule that you're proposing or almost per se rule that you can't and argued that you had to look at each of the patents separately but i do not believe that the legal issue that i'm raising right now was raised completely in the position brief but it was certainly the issue the judge judge he states that he looked at the scope of the claims but if you look at what is written in the opinion what he states is in this is an appendix fifty four dollars the low dosage invention as described in the from radio system so that the issue that we have on appeal whether that was correct or not and what we're saying is he a roni asleep analyzed if he did the scope of the claims it seems to me from that language he was looking at the specification and the description in the p c t and the patents in the let me get to that scope argument i mean it's pretty clear that what the what the judge suite found was that it doesn't in his view it didn't really matter what the scope of the claims were when the applications were provided she would have vance so the question was what did you have what  there were silent in the face of what information and and i think his conclusion was there was a silence in the face of information that said these are the claims that we're going to assert and isn't that the point he was hello pension in the correspondence which is sub sub legal administration enabling low dosage possibilities we had about the application itself right we had the p of any material that he may intend to include or claim later until we saw what he argued or presented for novelty and invent you know what was in the application right but the application claims are different in scope from what the claims are in the patents ensues and it's that comes very clearly when we look at for example claim one of the three to one patent which is at  and ninety dollars and that claim first off has no limitation as to dose there is no low dose in that and there is no reference to sub lingle administrat and it is a method for and do seem voiding postpone in a patient while reducing the risk that the patient develops hypernatremia comprising the liver into the bloodstream of the patient and amount of desmo press and no we did but those are not the claims that issued in the patents and if they are inventor ship is determined by the claims and element by element of the claims and the elements that were alternately claimed in the patents in suit are different there were additional limitations directed to duration of action there were claims directed to delivering to the bloodstream in the patient claims and trying to compare them to the two thousand and four application claims to what extent did you argue and you have this line item type argument to judge we that issue was not specifically argued but the issue was before him that the patents in suit were different from what the invention that was claimed by d say that that the patent claims and it up being different than the ones that were st discussed in the earliest correspondence going back and forth the sub legal administration claims but but i don't see any argument that the patent claims actually differed in material ways as it relates to this issue or not as it relates to whether there's some other issue that could be presented but as it relates to the  could not respond to because it was the reply brief but if certainly was the issue was before judge suite and he was aware of it when he wrote his opinion because the issue was squarely presented and at least the reply br the defendant there was no surprise on that let me let me ask you is you know i understand that we are facing this record we can't consider all the things that were that were submitted in more detail in the later record but what is the impact of the decision that you patents contain barings work and they should not be allowed to be used as a sword against bearing when they were our work and he derives the information from us so that to the extent that the are valid we have always taken the position that they are ours and they belong to us this is judge jan i've got a quick follow up question to what extent do the claim from the from the fine patent which these are directed to methods of treating individuals within those says i'm a precedent to achieve certain functional limitation inventor or a joint inventor on ferrand's patents i can see my time is running out i would just like to emphasize one other important thing there and this is very important because this is an fine's work and so that gave you the opportunity to see that and understand whether you agreed or disagreed with that my understanding as to what occurred was it was not until there were documents produced in corresponding litigation in the netherlands where we found out that dr fine had access to and had fairing documents in his possession and that he had in  data to the patent office as example and represented it as his that that those facts did not come to light they were not we were not aware of those facts in two thousand  aware that he was during the entire time of the core brands of correspondence we were not aware that he was running these two proof of concept studies that he had formed his own company cns to repeat the work that was done it farron and to use it in his patent application never brought to our attention that any time and that's ok here's my final question and rd thought i'm trying to understand is why after in december two thousand and four after m is his work it's not any of bearing confidential information and so you really plan says flag in the sand with this proclamation and why doesn't  know the answer to that other than to say that what preceded that was parents council saying we cannot now say that we will not ever challenge ownership or inventor ship until we state whether or not you get any any claims that will be allowed with parents position as i understand it those letters that one letter said well of course we don't know until we see the content of the application until we see the text and now alternative reading that other than well seven years of silence is is is it with very very reasonable for dr find to believe that we did not believe low dose in and of itself was the patentable invention and so therefore we had to wait we could not bring a cause of action we had no recourse at that time there were no issues patent cl s we we made our position clear that we were still reserving our rights to see what he did and what claims that ultimately became allowed and until we had issued pat gone to the court with a full record which i think is what judgment men said in her footnote eleven in her opinion that she recently issued where she said i now knowing what i know now not so sure i would have agreed with that decision and i can see on way over my time i will give you two minutes for counsel thank you misfires this equitable estoppel decision here on to correct inventor ship but at the same time now we have the district court decision after a trial finding at least two of these three patents invalid for among other reasons failure to correctly identify the inventor is that right that's correct and what is your what is your plan your plan is to appeal that not despite parents best efforts decide that any spearing employee was the inventor and so the case that parents trying to bring here even in judgment man's decision they did not win well she didn't correct inventor ship but what she said is that dr fine either wasn't the inventor for to the extent that she was an inventor he was the sole inventor so she did find that the pat action to correct inventor ship not acting to invalidate the claim and so for correcting inventor shit here in this case what pairing was trying to prove was that in fact employees were inventors they were not trying to invalidate the patent they were trying to get the patent and so the distinction matters there but even if even if you're going to appeal that you've got an uphill climb because you would have to establish that that that judgment consideration of that case on appeal to see if there's anything even left of this patent well in all honesty if your honour's wanted to do that you could there i think there's nothing improper about that one would have to be decided on its own another case that was not a started against airing and the other litigation which is why it was not at issue here and one point that i would like to make i know you mentioned the case as a neutral impartial fact finder and so in light of that i think when one domino falls the rest will fall in terms of showing that judge mcmahon findings were improper in that case said that dr fine is lying his expletive off and so that she admitted that that's how she came into the case and she wanted to prove she was just looking for us to prove otherwise and so that is not the  a record by any means well i mean she developed the full record to give you an opportunity to just show that that judge cristol was wrong right i mean it's kind of  that it was a glaring omission from judge sweeps opinion does it doesn't even mention the copying it is factual recitation how how do you get around that gap in the in the equitable analysis example of the find patterns and intentionally misrepresented it as his own original work by claiming he was the sole named inventor that is the inventor ship dispute that is the dispute that section that equitable stop designed to foreclose if we're getting into the inventor ship dispute as to whether or not dr fine was the sole named inventor of what he was clued in his patent if that counts as i'm clean hands then there's no purpose for equitable stoffel it would always apply because it's always the case when an equitable and equitable a sample is applying to an inventor ship dispute that you're going to have someone that is representing that there is an inventor and there's a dispute about that so if we're getting into the facts of the dispute then we're getting into facts that are close by equitable stoffel and i think that judge we was correct and saying that he had considered that evidence and simultaneously this isn't it's not a question of whether there's similarities between the two it's a question of whether he actually took documents that didn't belong to him and copied a protocol for purposes of testing and i understand he says i did my own tests afterward but but i think that's a different circumstance and the one you're saying that says would make equitable stop will always apply respectfully what opposing counsel represented on the facts actually are not fact there is nothing in the record here or frankly in the trial that we just conducted which has a much fuller record there is nothing in the record that dr fine took staring documents with him copied them and he outsourced the contracted with the same outside research organization to perform the studies and so that outside of the research organization dr fine gave or someone at his organizations that the protocol which dr fine was not under any confidentiality confidentiality obligation which is in the trial testimony there but again that is not none of that is in the record here which is why counsel representation is about all of these how they found all of this is entirely improper in this case that is not in the record and that was not in the record before judge judge sweet that's what counsel been trying to do this entire time today is talk about the fact that they did not bother to put into evidence they want to say now that there's a disputed fact issue about this and about that about the scope about unclean hands but they did not make a factual issue because they did not put that evidence in the record all the evidence that they put in the record before the judge to meet it was very minimal in fact and it was that there were similarities between these two stud acknowledge and that those studies were done by the same outside research organization who likely has the same template and then they also acknowledged that dr fine doctor's lines patent does not have well we will get that there are similarities between one of the studies that led to example eight and studies conducted it sparingly there are additional studies that went about clean hands the fact that they sat on that it's the same problem they're sitting there saying ok we're going to lie in wait and allow our competitor to do this and then maybe we can say we moved in and take the competitors  el but the fact that bearing may have objected at one point in two thousand and three single there might be additional subject matter that is rendered moot when in two thousand and four they see the claim and  as judge raina has discussed in his concurrence in poor vs two it actually is the case that where is here the scope issues that council talked about earlier that when you add in limitations those limitations can never be separate inventive concepts and so therefore there is no basis to claim  inventor ship over specific limitations i won't go so far as to say never i think what judge raina said directly concurrence was that shrinking patent does not necessarily give rise to previously nonexistent adventitious claims and i think here we are in the case where it did not give rise to previously not exist and vendor ship claims and as you and your owners have mentioned earlier saying did waive that issue versus ours subsequently issued patent claim same claim sco same subject matter so therefore ferring was completely on notice and relinquished any rights to the ultimate issued patent claim scope because they had full notice of that very claim scope in the content of our two thousand and four application does your summary judgment brief say anything like that your honor i believe it does but to be and confidential information that really bothers us and it surprises us that you went and did that dr fine and then dr fine says no now that's not confidential at all  is that enough to say that on summary judgment necessarily bearing took an act that basically abandoned the claim scope that was contained in the two thousand and four application when miss barclay never actually said that claims that you have drafted in these two thousand and four application belong to pairing dr fine we are the inventors not you given the absence of a statement like that can we really say that that there's no reasonable inference  that the barclay letter wasn't necessarily about inventor ship per se but really more just about some information it believed was proprietary information which is a different immediately to action and then silence that that is sufficient to conk constitute misleading conduct and here very is no possible reading that that  she was surprised to see dr fine had proceeded with the application containing an invention to which we believe he has no entitle meant and particular disclose information confidential proprietary disappearing like you're talking about so immediately go action within fourteen days if she does not receive a full explanation and well meaning that can only mean addressing both issues that are discussed the issue before the end which is the inventor ship issue and  dollars addresses this issue and the belief of no entitlement and says at the bottom of that page if your characterization is somehow intended to suggest that dr fine is not the inventor of the claims of those invention prior had said dr fine was proceeding with his patent application for a low dose doesn't impress and with the understanding that bearing relinquishes any ownership claim and that's key because that is dr fine showing stating that he is relying on their representation here that they have relinquished ownership claims to this to me one alternate reading of these two letters is not dr fein cannot be sure and cannot tell exactly what it is that mrs barclay intended with her very short three letter maybe it's possible that this short brief barclay letter isn't necessarily devoted to an inventor should claim saying that you know all patent rights on these applications are these claims belong to parents i guess that's that's the concern i have as to whether this passed away this record is not going to be any more fulsome than it is here and so it's not going to be any better later but what she said and what dr fine references here is that the next public domain and here they're not talking about the entirety of dr fine's invention which he had given a much more fulsome explanation as to what his invention was and his unusual communications with them in november two that that is what they're talking about with respect to sampling gold ministration but then they're saying they cannot of course say now that pairing will not make any claim to ownership of any other material dr fine main clued in any patent application without being attacked but the november two thousand and two letter goes directly to what judge john was talking about it says they've asserted his inventor ship  because it added something important particularly sub lingual trans you cross a route of delivery so i mean it wasn't like he was saying that that's where he tribute it was the sub l of these inventions come in and what the effective use of formulation that have reduced compensation and that's what dr fine does ultimately end up claiming and so what  in this letter is that she can say at that time whether they're going to make any claim of ownership of other material by the time she makes her so right she has all of the information of what all the other material is that dr fine is claiming she has his statement in his letter that he is relying on the understanding that bearing has relinquished any ownership claim to and his interpretation of her statement and in light of the fact that she is the one that made the threats she was in the driver's seat of her letter she made the threat he responded and is showing very clearly laying its cards on the table saying this is what i am relying on this is my interpretation of your letter which under way for she is the perspective that must be relied on and he's saying this is my interpretation of your letter it is now incumbent upon her under way  thar thank you your honor i will be brief so i st start where where we just left off i mean do you agree that claims for more than just let me just say this and at a minimum the arguments here have shown that there are disputed issues of fact that summary judgment was improper as to the spring and the correspondence that there are inferences that can be drawn as to what was being discussed there in terms of entitlement what was the threat of action was that related to the the  stealing of confidential information it's could not have been an action for correction of inventor ship because that cause of action did not exist so getting back to unclean hands and copying the other side you just heard them saying that you're trying to create a fact questions that you have or that you didn't actually present and so therefore you don't really have a leg to stand on with your  six point one statement and statement of additional material facts what the following do you have a pinpoint hoff declaration was never responded to by the defendants below and was never addressed by that of course those are clearly disputed facts they are clearly something that we should have been able to that data to add additional claim limitations including the duration of action through his his patent claims it's highly material to whether or not equitable  even proper on a motion for summary judgment in this case and i would i would also say that i think this court's president when it talks about misleading conduct in terms of silence the generally is there's got to be something more it's just not silence there has to be some force of dealing between the parties where there was some sort of expectation that they would speak up or some claims that were added their claims thirteen to seventeen so again this is different than what was ever presented in the in the pending applications and the route of  and i don't have anything further thank you for your time ok thank you the case will be submitted