result of nokia's late disclosure apple was required to prove by clear and convincing evidence that you have benefited from his failure to disclose district court could not make this finding and instead found at appendix forty three that apple was not required even to connect his non disclosure with the equitable benefit holding that such but for proof is not required but that is  of the entire pen as to the world versus the un and for civility of the entire patent as to a standard tale of the remedy that goes to the remedy the remedy does have to be tailored but this is an equitable doctrine there  to see if we can agree as to the underlying facts here on which i think there's some murkiness at least in the break i take it your position is that a mobile station can operate consistently with the g d r as standard even if the mobile station is only capable of the two th the option and it is not required also to have station the standard specifically says that when one or two slots are allowed the mobile station may choose to use one or both the mobile station the hands that is the one that makes the choice and judge  vations to operate in both modes but that was clearly eroni and just confused the three different timing vans modes there's continuous initial and on demand and with the two any proof connecting the benefit of the late disclosure the benefits to the late disclosure but it also failed to apply the clear and convincing evidence standard it did not even indicate that it was applying the clear and convincing evidence  finding that it must be found to show materiality that does not meet this court's standard for clear and convincing evidence as this court held in their sense to meet the clear and convincing evidence standard the district court had to find that the one fifty one solution being included in the standard as a result of non disclosure must be the single most reasonable inference able to be drawn from the evidence indeed the evidence must be sufficient to require that fi and if there are multiple inferences available from the evidence clear and convincing evidence cannot find in any district court because in finding so clear air here not only was the evidence  trial transcript that s c chooses the technically best solution regardless of i p r intellectual property rights and that i p r would only be considered if there were two technically equivalent solutions one of which had i p r and the other was i p r free there was no evidence that that narrow circumstance was met and dr walker critically admitted that he had no evidence that at the he would have chosen another implicitly so st it did involve affirmative egregious misconduct there was evidence of the qualcomm hid evidence lied to the court knowingly attempted to conceal care for a carefully orchestrated plan six attorneys got referred to the bar this was a very different case but there it did imply imply a plea also find causation because if their goal of the standards organization was to adopt a solution legally free of intellectual property which is very different than  is in your briefs you cite various items including at several points expert reports now i have a hard time figuring out how much of that is actually in the record that was usable by the district court can you help me on that what is of the various pieces of evidence going to what  considered what he was focused on the argument you just made how much of that what in particular of that is in the record and what is not i take it that the expert reports are not in the record threat i represent apple i'm standing in for joe mueller who tried the case before the district court and argued the st appeal before both of you mr miller began a patent jury trial in east texas yesterday that's the opinions demonstrate the frantic commitment and the disclosure could and then are two separate commitments with two different purposes although they overlap to some degree if there had been disclosure additional requirement and this is very clear at the st page of the reply memo there but for standard requires that we demonstrate that but for the misconduct he would not have he found the fact he'd been in the next two pages is addressing the specific arguments made by can person and the argument on but for causation was not that there was no causation requirement because  just applied to causation requirement two pages there are only he was rejecting the possible proposition i'm sorry that we were also required to establish conclusively that as he would not have a causation test if you have one are you simply saying that the breach of the duty of disclosure was in and of itself sufficient to justify a remedy fact resulted from or was a pain by and in fact your honor and that's what i'm trying to understand is do you think on those specs there would be any result flowing from the part of the winning side but if i recall there was nothing in the briefs and qualcomm except for one very brief reference to causation in  property and because they were no infringement that that was possible causation but that was the only argument i could see in the briefs about causation so the court didn't address causation as far as i can see it wasn't argued out not to be true based upon the jury's finding of no infringement but they received any advantage during that process and during the licensing the referred to that was the reason that causation was an issue because competitive advantage and to answer a question your honor and ask mr fencer but also to hopefully put a place emphasis on that is both experts agree that for the handset manufacturer that sample taken i think you're arguing past one another you're saying all three modes are essential and that's what mr wessel i guess it was said and that's certainly true no one disputes that the question of is where the says you understand that from the mobile station the phone's perspective it is absolutely mandatory that they perform all three correct and he says yeah that's right he's talking as i understand at that point modes and the answer is yes your honor that i don't think there was any real dispute that you had to have both from the handset manufacturers perspective ok and the other talking about three as i understand it we are talking about the on demand continuous and initial and nobody disputes those three are all essential the question that i focused on is whether the two options one t a v r to t a s e are both essential and when you when you point is the evidence that they're talking about the three they're talking as i understand it about the three do you have a indication to you that that it's true if that wasn't true why didn't i sign a declaration to essentially make the representation in the complaint make the representation and the infringement contention and offer the testimony trial that was the central if it were truly just one of one option one mode that was not essential they never could think so st of all just right just with respect to your question regarding the three and the two both you are absolutely right that the testimony was clearly and only that the three modes were required but the expert testimony by both dr wessel and apple's expert were that the options were whether to use the one hundred and fifty one invention or whether to use two timing it bans values and in fact apple's experts relied on the two solution as a non infringing alternative all of the evidence was that the options were optional and the standard expressly says the major use the mobile station ages so there is no evidence to support that the two options were require all of the evidence on encourage you to look at pages fifty four dollars to fifty six dollars of our brief that has it clearly laid out with all of the evidence that the two options were and that's why we had to try this court case as a source code case we did not go into trial saying that it was essential and therefore they infringed we went into trial saying the standard gave them two options and apple had the choice to use one or two and we had to go to the source code and the source code showed that given the choice apple chose one of course mr lee cited the various places in the record where  author's question which i think is the critical one is was the option required or not and the reason that that's required that that question is essential is because we go back to causation and whether it's but for causation or not this court held that there must be some causal next and i do think it is but for that's what the supreme court  the apple actually asked the court to close the record and the district court found that no additional discovery or findings were necessary the court gave the district court clear instructions on that record view does review the district court's finding for clear error and here there is a legal error in that it failed expressly protected causal nexus requirement and that the clear and