may please the court that afternoon the district court's nine infringement analysis was fundamentally flawed in several significant ways and this court should reverse that the key infringement issue really guarded whether there was a stabilizing coat on the defendant's feeds and the district or define that as meaning a layer of materials however permeating throughout the district courts not an infringement decision were critical findings that were directly contrary to the court's claim construction of that term the court erron theory relied on how the finished products were made despite saying several times that the process was irrelevant to infringement that district court repeatedly relied on the fact that one or two accounts expert could not explain how the insitu stabilizing  ingredients in it are important to doing the analysis and from that point of view having the list of ingredients important but the bottom line question here is whether there's a stabilizing club coach or not in the defendants be and so if i had a process tell me we had infringement probably when and then you wouldn't be telling me the methods irrelevant your honor in that hypothetical you're correct but well then why isn't it relevant for the district judge to inquire irrelevant for some purposes it's relevant for others but it isn't the tack an attack on the substance of his opinion that he used that word at one point is it because we both recognize that it could be relevant for some purposes not for others but for the purposes of this case it's irrelevant because we know there was no dispute that there was no stabilizing thought that was never our spirit there was no directly applied stabilizing code made other fundamental errors with regard to claim construction the third one is that my own desperate relied on a construction that was inconsistent with the disappearance construction of my lands expert dr buxton said that the stabilizing code had to be a  opinions in the district court only relied on his announcer's in terms of what he expected to see so i think it is reversible error because the district court did not apply the claims as he construed it and in terms of the actual non infringement announces i'll start with mylan and then talk about impacts from milan the district court essentially relied on conclusory opinions of mines and experts regarding the testing done by dr davies so the decision on validity he specifically says rejected validity contentions because the defendant didn't provide a single test cite a single piece of data or point to any any reference and that's exactly what happened with mine and experts with regard to the humidity treatment the only evidence that the doctor that the district court points to is my own argument that either the beat that the darkening was caused by an amorphous a p i or density differences there is no data no testing necessarily postpones he says he says it's not necessary povey don't based on my land that's for specimen of regarding the morpheus a p i in the density difference what what would you say to us about the more scientifically i started dr davies testing shows that based on undisputed facts there was a layer of materials that the district court found that in the plymouth or junction phase and that in fact the norms if we assumed that were the case we'd have two tests on the other side which would honor the issues on rejecting that test and infringement there's a lot of overlap but i'm i'm kind of asked to base address my question or even if your tests were completely on the table wouldn't we have adequate evidence on this record to uphold the district court's i don't believe so your honor once you you know there's a layer or there's not one stop and there's two tests that says there is highly confirmed by scientific evidence and there's one not assume that one says there's there is when we hold this district court to know your honor once there's a has showing there's a layer it is a layer exists or not if one test shows it there's a layer as a matter of logic the fact that you really are not going to perform the tests here at the appellate level and determine whether there is a layer or not we are going to rely on a record the record says to test they whether the darkling is posted on or not no that brings us to the fact that you haven't addressed the ramen or the toxins tests at all which are reliable well and are in the record as something we can review whereas your tests were rejected by the district judge well i was to your honor would you know what our point of view is with regard to the raman testing for example there's no representative data and the raman testing dr ever all tested flat so five percent of  percent that's pretty represented he didn't have sixteen places on one b he test he did six single point tests one little dot on one of them he did three single point tests on another he did two lin need did run robin testing but he didn't run in thinking he would find a photo larry he wasn't testing for pogrom which goes back to my point just greater which is that you know you can run that many different tests but you may not ever be able to find something that just doesn't show it what happened no matter how long he ran and he got the same result he revealed a stabilizing coat that was a third of the width of the outer layer and there's no testing data or literature on the record from impacts to refute that testing defendant's provide nothing in response that no data they didn't try to run the washed six times they didn't try to run the washington different acetone water wash they didn't try to run the wash in a different story method they have no data they just have their experts getting up there and say well i disagree and that should be good enough i don't think that meets the requirement for showing some evidence on the record in fact this court has said when a district court doesn't rely on relies on conclusory expert opinions it can be clear  in fact both dr buchan and dr davies agreed that the dissolution stability data that we had were surrogates for the migration element and the district court erred by saying that the only reason that we had to prove that the reason for the inhibition for the stability was attempting to respond to our argument effectively created a new limitation of the claim by requiring us to show they would be the reason for the four for the stability of the tablet and i don't believe the patent specification supports that reading thank you the extra three minutes so you'll have ten minutes if you need to use said mr wise but i think your honor and good afternoon this was not a closed case the district court carefully crafted fifty page opinion we were aware of the right yes or no but i think what's important is these independent reasons see as the judge o'malley pointed out they all stand separately the the court the district court would have had to commit error in each one of these independent reasons for this court to reverse the opinion has extensive findings of fact and extensive credibility evaluation is and i wanted to go back to a point that was made every single test that was done by a reliable scientifically validated analytical method whether done by the plaintiffs experts o unwashed and altered impacts seeds came up with the same insert no infringement how do you really on to the argument that essentially what they're saying is that just because they don't see a layer there doesn't mean that those tests should have been able to find a forty six micron stabilizer in immediately or if it was there judge a martini found impasses experts to be credible that their testing was reliable that their procedures were pristine and so yes here we do have evidence of the negative he would judge ritchie repeatedly found if it was there the tests would have found and we have to remember that we didn't mention that when he said or did the just say that the test would be the one that people most normally or most likely were used to look for you know he actually for the  reflect the absence of a forty six micron of stabilizing coat layer that's on a forty three of his opinion when you get to the top sims test so it's working fine specifically at a forty four if there that mentioned that tar sims read only detects talk and judge more team went on the data from dr so the impact is experts consistently and overwhelmingly reflects the when you probably don't need to read the knife again here you certainly and i want to go back to one thing that was said earlier and that was it is undisputed that the acetone wash test removed what's called h p fifty that was disputed from the the day the trial started to the day the trial ended we demonstrated in fact and the judge made extensive factual findings that even if one considers the test that he excluded under daubert it doesn't provide support for the infringement case in other words even after judge martini examine the results of the ash atoned washing test the scale of infringements within echo oppose they didn't even prove a preponderance of the evidence with b s tone in washington and he goes through chapter and verse why he found that was true the second point was that it's fun disputed that two thirds of the outer layer was removed that was also disputed from start to finish and what judge more teams found in essence that what was left was  remnant of the outer delayed release coating extensive fact finding in that area judge martini found impact as experts credible he found the plaintiff's expert not credible he found the test reliable independent reason as you point out judge david is in the so that limitation in the claim the drafters of this claim chose to use the words so that they did not choose the words where instead composition and then continued with the claim they put the cause and effect words into that claim and judgement cine appropriately construed that claim and applied it because wh he found was an absence of proof because the police deaths were relying on if there is a code that's where the stability comes from and judge morty rejected that out of hand and found it was again a pro is an extraordinary and rare exceptional case when one reads judge morty's opinion it becomes readily apparent that the plaintiffs pursued this case after it was that i didn't want you to read from yes your honor but what judge morkie didn't explain is in his in that very simple findings did he examine the notion that we pressed that they unreasonably a case after a rational litigate would have understood there was not infringement that is a viable substitute if not bad faith and that's where the only part of this decision that and what is missing from the opinion is the explanation of if you didn't find that face did he weigh the appropriate metrics if you will of the behavior of the plane doesn't take the test correctly yes he does difficult area that precedent says even if the court below state the appropriate test if there are enough factual findings for exists court to examine for this court to evaluate he gives fifty pages which shows that he's grappling with myriad issues and expert witnesses on each side of four or five different tests and don't just think he has a pretty good idea of whether or never standing alone be enough but here we don't have standing alone your honor we now have a litigant that's come to this court and pushed evidence that was excluded because as a discovery protective order violation well that's different that's a question of whether you want this court if you that has nothing to do with what happened alone but your honor we believe that that is representative of the lengths to which it is an issue that footnote plaintiffs seek to use the information derived from the mining confidential information against impacts it was totally in a compartment just might footnote forty one was excluded because what the plaintiff wanted honor as with impacts the district court was very clear about the strength of the evidence the courts of the evidence overwhelmingly indicates there is no stabilizing code in my arms and a product i'm going to judge that the top since test would have found it so to win here the appellants have to show the judge abused his discretion in not allowing the humidity test into evidence that even if it is allowed into evidence that rather than the evidence being overwhelming it's in fact clear error on top of that they would have to find that the judge's finding that dr davies appellants expert was not credible is clear error even though the supreme court court have said that a judge credibility terminations can virtually never be clear there so all of those are the hurdles they have to clear they haven't come close to clearing them it's very obvious that that's the case i want to briefly respond to a couple points connelly made the district court did not say the letter had to be perfect and rely on my own zack for who allegedly said that the district court said aged twenty five its opinion while plants are correct that data showing some core material at the surface of the beach is not inconsistent with the presence of stabilizing it is showing a high concentration of poor materials around the entire surface of the un go to be suggest there is not only are materials between each of the core elements what he testified to was it had to be coherent it had to be a layer which is exactly what the court said it needed to be he said that it had significant gaps and it would fail that's not saying it's a perfect way or this whole thing about he testified that had you perfectly and the judge will i don't it is just wrong it's just not supported by the record briefly to judge dykes point about dr elder if you look at a three four three seven three eight doctor elder in great detail explain why he did not believe that dr davies test could demonstrate there was a stabilizing in the mylan in the product and he didn't miss minutes work he said that it won't tell you what your looking at it will tell you the structure it won't tell you anything about it i tried to run the test i couldn't find it there is no way that one can rationally argue that dr elder in any way supported dr davies conclusion or even the validity of his tests at all three fully turning to the issue  exceptional case i and i heard the questions my only comment would be it's mine and view that the evidence the judge relied on to find the dr davies wasn't credible particularly the timeless dr dave perform the standard didn't overturn it by saying that we looked at the experts and we think one expert is more miles than the other know that that that is correct but that basis now yes but you know just going back to  ran the test was supposed to run and why do you run those tests because they are the test are supposed to run and they should have at that point come to us and said we're dropping the case it's over but let's go back to where mike went there with your colleague first paragraph we're just laying out the standard and the next two paragraphs are very short in other words what did you give the district court to work from for purposes of making your argument or you're just saying go back and look at everything you've ever done judge in this case and then you  that the same evidence that we present to show no infringement the standard test the fact that dr davies raines same standard test the delay in coming up with a smilie took that was all evidence that was put in in the infringement case and so we didn't repeat that in our two eighty five section our view is that it spoke for itself and it was the same evidence the same basis that he found that there was no infringement and in particular and support he found their expert was not credible the same evidence that he used to find he wasn't credible the judge needed to discuss that there's one sentence in the opinion and this court has said that if you're going to find an exceptional case for the night sectional case you need to give this court something that it can look at address the point that mr shatner just made he said that his timeline is correct his timeline is incorrect if you look at page eighty six zero five two of the record which is dr davies test table of contents the very third the third and the first two entries say sample preparation might profit be the third entry ms laboratory notebook said optical microscopy they did the optical my cross being was at that time that he saw the stabilizing layer keep in mind that the humidity test was only done t determinations in this regard because dr davies notebook shows he did optimal i crossed to be in on october twentieth two thousand and ten and he relied on that on that work at trial brief and it shows that the door at speed which we all know has a letter has all significant number of gaps in dr q you testified that even though it had gaps even a lay person could see that it had a layer so the fact that dr and i mean did the district court said that there was absolutely no evidence of that and and yet it is true that in mark we said that pursuing an infringement case after all evidence points that say so the fact that none infringement or proffering expert testimony that that is completely incredible does at least lend support for the proposition that there are things that say that that is that evidence that could be the line time so it wouldn't mean if that district judge had said well i weighed the evidence of bad faith and i don't find it strong enough to be one thing but here is that there was absolutely no having how can you support that well i think as you pointed out as the founders pointed out the district court sat through the entire trial heard all the evidence if you read the discourse decisions for both impacts and milan he says dr davies theories are plausible but i disagree with them for both impact and mind  if you have a plausible theory is that more than meets the threshold of being able to go forward with your case at trial and it's also evidence that there is no bad faith and that you did have a good faith basis for going for it so up my response a huge amount of that the discourse decision itself says that our