please the court i assume the court is familiar with the facts and so i intend to move directly into the issues the district court abused its discretion in declaring the want to for patent and forcible on the grounds that predicate is that internal mr nelson did not notify the patent office of litigation involving the parent ninety nine to pad the relevant facts are undisputed the declaratory judgment cloud case filed by union rich commenced i mean just just because there are so many issues here just as your main argument with would you be satisfied that it satisfies the but for or would you then take those faludi issues that have to analyze whether or not there's a but for relationship with respect to the question i believe that the second would be the proper analysis that under sense when the issue is withheld information they're sent says that now is has to determine whether or not that withheld information would have prevented at least one claim from issuing so if there were invalidity issues that had been joined in  lawsuit and i believe the proper analysis would have been to look at the substance of that information to determine whether it would meet the but materiality test so the patent office has a requirement that you advise about medication an ongoing litigation the patent office can promulgated some rules and regulations to govern the conduct of attorneys who appear before it but the issue here in the context of litigation is whether these patents should be declared unenforceable in their sense makes clear that if the conduct complained of is related to withheld information they withheld information must satisfy the but for standard of materiality so what about the commission the small entities that misrepresent  misrepresentation that small and well to get the with respect to materiality we believe that the incorrect claim of small and of the status would not meet the but for materiality test because small of any status doesn't saying is under the fair said standard it seems to me the same facts can relate to both aspects of the inquiry where the only basis for materiality is the affirmative egregious misconduct here are facts are that nobody involved intending to see the court found in further intent to deceive relating to the small to be quite correct and we believe that is erroneous because because well first of all there was no evidence whatsoever that mr nelson the patent attorney even knew of the existence of the agreement there was no evidence that mr nelson i thought mr not from testified that the reason that he didn't disclose the agreement was because he thought it was an exclusive license no he license i'm sorry that was not his testimony and that was not travel katie's argument travel katie made the argument on materiality that referring to the district court earlier ruling in the case that restored need not be joined as a party because it was not a just a diff divisible patent license with exclusive license that it was no more than the type of license that resell the patent owner's product and our position is that this particular distribution agreement only granted that implied license to resell the product and it granted a potential future license that never vested and never district court interpreted that argument to be mr nelson's conscious decision not to disclose it based on that argument that that was wrong that's correct as mr nelson never so testified the testimony is that mr nelson never even knew of the agreement or certainly didn't know when he became aware of it the argument that testimony in his deposition because no one asked him about this during the hearing nobody asked him and that's that is a failure of union rich to meet its burden of district court with regard to this that senate is that the lack of the court finds a lack of credible good faith explanation for its misrepresentation so the court has the right to make credibility court has the right to draw inferences so why isn't that sufficient and in the court the court did make a finding that there was no credible explanation in other words he didn't credit to the extent that were acts alternative explanations that he didn't credit them don't we have to defer to that deliberate withholding or for misrepresentation and there was no evidence the district court judge made a finding based on credibility i mean even under star scientific the most reasonable inference etc if the district court discredits the other alternative reasonable inferences and i just don't believe it don't we have to have to prove that not of her finding was clearly erroneous and we contend that it was because the district court simply missed the evidence that lack of evidence there was no evidence that anybody gets travel caddy understood this agreement could be relevant to a small out of the plane there is no evidence that anybody a traveler katie knew that rooster had more than five hundred employees when their mexican subsidiary was included and there was no evidence that their pattern of mr nelson knew of the agreement were researchers employee count so at most the record shows perhaps more communication perhaps an insufficient investigation by mr nelson but this court's per case law makes clear that those circumstances are telling it most of simple negligence not deliberate knowing conduct that would give rise to deceptive intent but i'm correct th travel katie did not argue that mr nelson knew of the agreement but interpreted it in the manner that your question suggested they argued and only on the issue of materiality that they claim it should not have been  of the during the time period that the large entity status should have been claimed and enter a requirement that a certification be made that the error was made in good faith i'm not sure how the patent office deals with it forcing internally but they do have a regulatory group that can oversee attorney conduct and i would think that would be the better way of handling it then declaring that an innocent mistake like this if it had been made should that's one of our concerns but not or primary concern way is not very relevant as a reference to begin with it's a standard rigid wood or metal tool box and it really is not  panels as claimed meaning a rigid bottom panel rigid and panels and flexible front and back and so they're all out there but now they're out there but all the court did was selectively picking from different places and say well this is all simple technology it would be obvious to g start or ending point now the claims are very specific as to the path that the binding has to traverse there's one group of claims that requires the binding to traverse the side edges of the panels and the bottom edges of the patent teaches the use of four separate bindings there are two loop bindings one extends around the periphery of the front side one extends around the periphery of the backside and then there are two linear binding that extend along the top edge of the end panels so it takes it four separate bindings to bind his back together he teaching of the patents which is in every claim is the use of a continuous buying that wraps around in the manner reciting to provide for a durable construct easy manufacturing and in a statically pleasing finished product that is nowhere taught or suggested in ziff and it's nowhere taught or suggested in any other prayer of reference  teachings if the zip contemplated a different way of doing it in the benefits of doing it the manner in the manner the patent it would have suggested that but it doesn't it's perfectly happy and content with the design that was disclosed and none of the prior ar that was relied on by the court even refers to the use of a continuous binding whatsoever so there's no other teaching in the prayer or in any other evidence that was considered to make that combination i'm going back to when  very good reference to begin with it's a real good old school two bought two a box that teaches nothing about constructing these bags out of every pedals and reinforcing members and continuous binding so our primary bone of contention with what the district  is the manner in which she combined the panels of hoover in chrisman with the continuous the binding the beating shown in ziff to arrive at the subject matter of the independent clips let's assume we reject just simply said i'm going to do an evidentiary hearing riposte partners had asked for a jury but you participated in the process and never objected during the course of the process did you there was no separate objection made during the trial but trial an obvious what would go to the jury i mean that was very little secondary or objective decision evidence was in there there was evidence from ms curtain of the commercial patted bags and there is evidence of copying by union richen it was evidence that he copied products that had a big impact on union rich's sales so there was evidence of secretary considerations and hearing was also in our view unfair because of the inability of travel katie to put on the type of evidence that is relevant to obviously through the technical expert in the u s we've got to not to focus on that but there ordinary lay person of average intelligence but she didn't go any further to define what level of knowledge such a person would have or how such a person would interpret the prior art and that was one of the things that mr torch mark would have addressed in his in his testimony and selves and this court had already had a full market here she had a killer injunction she was very well aware of this technology that she didn't that wasn't you're asking us to now make a proper app injury ruling is what you're saying but that's not the basis that this judge  prior art and how it reads on the pants unless they're a lawyer she said that like several you're i agree with you but i don't think it affects the ultimate really in this case and that their expert did not provide any expert report as required as to what he was going to this area and this is one of those areas where this court has recognized work a as ours recognized where you have a combination of predictable elements right here grounded in common sense that you don't need to have expert testimony and i think this court proved in her in that she understood this is easily understandable technology it's dealing with carrying bags and the three primary references she relied on all directed to carrying bags so you're telling us that we should assume that the and i think it's harmless error where the court understands the prior art applies acquirer correctly that that witness can add nothing else to what the judge already knows so is she exclusive and proper basis but it's harmless because the co was disclosed in the player or the differences between what the pact was claiming and what was in the parlor and she felt comfortable doing that analysis now she also had the benefit of the examiner at the p t o and a subsequent application  n where that examiner found each one of these elements that the judge was consider thanan prior art and she did have that ability of the patent office examiner doing that analysis which is also cut off exams can be considered the issue is that the pathname whether through their agents or not whether they had knowledge of this agreement that testimony that was received from mr nelson during his deposition which which was raised in one of the briefs is the explicit language of the agreement and they're trying to make some distinction in the law that a not exclusive agreement or destroy doesn't destroy small status only explicitly that there's no basis for that in the law at all but that that's what their argument was to the court and i think it was it was not right good faith explanation for it but they are they're taking a not unreasonable position with respect to law and their legal justification for doing that the difference between a that i believe cell and combined with her finding there on the witness was not credible with respect to his explanations for off for several of the actions that he took in this case and i think when she gets down to it she which is you know something i think it is very useful to when you start talking about is a triangular shape and point something that's in the park now the court used by the p t o days when they never raised the issue that was not to our beading extending around the edges so in itself that it doesn't say a beating a single beating it they claim is consistent with the specification which discloses multiple separate beatings just to clarify the record i want to make clear the travel katie never argued that it knew about and nelson knew about the rooster agreement but nevertheless interpreted it as being relevant because it was not an exclusive agreement that was never trouble katie's argument in the record at age sixty one six their actual argument is set forth where travel caddy explains that this type of agreement at most creates an implied license to use and resell the products bought from travel caddy and then referred to the m such an implied license that runs with the product does not impact small energy status and moreover it was clearly union rich's burden to prove knowledge of the agreement knowledge of the employee mr nelson's knowledge and awareness of these issues and there was an entire failure proof on those issues i know i don't have much time i just want to speak very briefly to the main construction issue of the word between we're asking the court to revisit that issue because the district court improperly in turkey did figure ten as supposedly not showing in panels and bottom panels that extend the bottom panels in front and back panels that extend external to the end panels  the union ridges on technical expert read the figure the same way that we read the figure it clearly shows that the bottom panels and the front and back panels extend beyond the end panel so there was no basis to limit the word between specific over oversight made by the prior panel and that was specifically the prior panel looked at figure ten and acknowledged that the district courts that it's unclear so it looked to figure for in figure four shows a cross section of the binding the prior panel mis read figure four in the accompany text is describing the joinder of the bottom panel with an end handle and it therefore concluded that figure fo is evidence that the bottom panel cannot extend beyond the end panel because the panels in figure four shown as being told terminus however the figure for actually describes the jointer of a bottom panel with the front panel  figure for sue a sponsor it was not argued below and it was not the basis for the district court's decision the district court simply ignored they had mission by their own expert that that figure ten shows the panels extending the island to be giv agree with that but this area that we think was made by the majority of prior panel was in misreading figure four as describing the jointer of the end and bottom panels a figure ten when it clearly is not describing that juncture so we believe there's no basis to artificially limit the word between which by the way the prior pale in judge dyke recognized as an ordinary meaning that's broad enough to permit a structure to extend beyond th