this affect the attorney feel worn if the decision has to be five or six and three seventeen and so is overturned then the question becomes whether it is appropriate to whereas the claims are somewhat different from the five six five so there's a reason to do contend that perhaps the five six five any determination of an equitable conduct with respect to the from the conclusion that i'm going back to my original question when you know what consequence most of no one spent any time or money in effect on the division and everybody is focusing on the seven not well i mean others if you lose the seven and ninety nine i don't see where that's going to be likely to make a huge difference in terms of the attorney for his and well i think it was because the inequitable conduct portion of the case was back into the case which was argued a couple of months ago in the enron it's somewhat unfortunate that we have these two cases separated by time the wayside to be the key point your honor is that for a long period  argument with the discussion was focused on the the relevance of the jansons declaration with respect to the three patterns that relate to claims broadly claiming  point judge bryson that as far as the amount of the awards on the attorney's fees i have to kind of review how this case has come over the last seven years at most and after two all of the discovery took place together they did they went to the district court and said we're dismissing these three patents they're all involving plant claims and that's actually reflected in the district court's opinion a sixty three point two nine on the top of the page  dismissed the seven nine nine three seven two and by four six patents per grant regarding plant claims from the case leaving the five six five patent qur'an by marriage gene claims for litigation on remand so all of these plant claims were a lot of them the same bucket vibrator when we went back down to the district court again now the other issue is the crew with the inequitable conduct proceeding yes judge that's absolutely right everything was treated all together now and terms of the testimony at the trial was this this jansons declaration in the first of the four packs that issue was directed to the comment that prosecution and that's reflected in the district court's opinion that once that state if that was a false statement it should have been corrected to the patent office and it was i mean the district court in this case found that not only did mr janssen's lie to the patent office he those two patterns all the claims were lumped together they were lumped together by bayer and they were all tried together now the other issue is that bayer never went back to the district court after he entered the first or the first final judgment the one finding infectious unenforceable libya's to these three patents and they are never challenge that again so where we stand right now and this is you know goes to part of the issue of why when santa was arguing this this is has been is that in the first final judgment there was a finding in the holding that there was an equitable conduct in all four patents begun without ever having raised it to the disk recorder or done anything about it on its own in this appeal has now come back and said well we're not been addressed that part of the first final judgment in the first appeal we've decided on our own we can address that in the second appeal and that's been monsanto's waiver if you please come in is because why did they get to do time that finding been the exceptional case the amount of the money everything else still stands and you can do that without waiting on the first appeal in deciding the merits or this appeal on its merits but you know our point is  i mean and another point that my father just reminded me of is that at no time in the district court did bayer ever argue that there was never an infectious on in force ability as to these three pat make at page a sixty three thirty of the opinion and this is you know this is a district court who did everything he could have and should have come to the right decision with respect to this issue he found at page two of the record even in a sixty three thirty the orchestration of deceit purposeful misrepresentation of material fact of intentional nondisclosure of material fact and submission of false material way it can be violated simple withholding information submitting false information making arguments that were inconsistent to things they knew to be true with respect to the data and so on that basis and based upon the credibility of the witnesses that the district court assessed sitting there watching them and this all unfolded in front of the district court the judge saw that mr janssen's demeanor his deposition he s his lack of truthfulness as the district court pointed out time and time again throughout this this opinion and it was a minor i mean these are just one of those once i think the court made danson was changing his testimony again on the stand and response to about six six questions i asked him you know where does it say it does know the exact control correct and mr dandridge would come back and say well there's testimony and i'd like to direct the court to the page of the appendix which is three eight three one one mind three i think yes eight three one one  three and that is on cross examination mr janssen's so this was an error by the district court this is that a bit about misrepresentation of what the judge was analyzing and what he was there was a decision by bayer to dismiss the three patents and only proceed with the five six five what's being decided to proceed with the five six five we asked the that you did not raise before the district court your argument that the other three patents this relates really to the first appeal that i did it's all tied up so i need to know that you didn't raise the argument that those three patents were not at issue because of the covenant not to sue is that correct did you raise that argument or not you raised it on appeal we've recently raised it on the field and did you raise it between would in fact the entire series of patent that was never an issue because there was no evidence at even as to one of those two because there was no argument made no evidence