respect we think the the rule is laid out it tonight seventy two percent second twelve seventy eight this any claim in the application defined merely an obvious variation of an invention claims in the patent asserted to supporting double pass if  answer the question is no there is no double patent when i i gather that the that the other side would say in this case that there is an obvious problem because the fact that you eighteen patent nevertheless go after someone who used to come had a composition that had claimed one of the one five poor innit well as dirge rich explained the general foods decision and form of the three eighteen at the weight those claims six seven eight ok and then someone comes along and try to separate party comes along and tries to patent what's claim did two things if you could number one the why does he not have why is he not on pretty good ground on general foods number two what's wrong with those older cases because we've learned from the supreme court that sometimes these cases are old and they're lurking in the bushes but then they can kind of jump out and bite you if you could just address those two points yesterday first of all with respect to general whose case the general  facts as stated in the court's decision is clearly a two way test case the court does not say we're applying to the apex it does not say we are applying the one way test but disagrees with your reading of general foods as relying on two way cases you would say i guess it still doesn't make a difference really doesn't matter why is it that it's actually a two way test case  invented the particular form violator can we decide this issue on the basis of the summary judgment record in other words you would say we could say that inequitable conduct was shown on summary judgment right y could we though on the other hand say i mean you would disagree with this i know but could we in the summary judgment context say that no this record as a matter of law does not establish in equitable conduct would i don't think you should at all i understand that but you don't think there's any facts if one in other words i'm not a not articulate my question of i guess when times is there any facts in your view that are out there that not in the right that are not on the record that would prevent one from going the other way no i do not believe so so we can rule either way on this record to your yes particular  been repeatedly cited as basis for a one way test i don't think that makes a great deal of difference but what what general who said very clearly is in that case the prior that was applying to a number of steps a years ago it did nothing with it it was done in sweden it's not a want to f situation it's not a one of two g situation this was a slam dunk that couldn't possibly have been made and invented so there was no mater here certainly no more using no materiality even under the taxes that are laid out on this in the summary judgment setting that's correct you're saying we could take these facts they say no materiality yes you are because if if they have told the patent exam every one of the suspects it would have made absolutely no difference it was not material to the prosecution that number could not possibly be an inventor and even today they're trying to knock out this patent they don't say that burke was the inventor