arguments in response to your position and one of them is that you don't really have to enable all of the permutation as they were like six permutations and this is just one of the steps you agree that that's the case right this is just one six permutations or however general case law is you don't have to give a recipe for the creation of every permutation but you have to say enough to enable somebody who is skilled in their use in what is taught in the patent what they know and reasonable experimentation to create every version of the claim the other so there can be gaps in the getting a lot of heat to it and he testified without contradiction that the only way the patent teaches to do that is the heat the substrate thereby sending that heap through the buffer layer up to the graph and so the buffer layer is never going to be cooler than the growth layer and as a consequence because the two layers are made of the same substance they're subject to the same amount of heat of the same amount of time he says if you did crystallize the growth or you necessarily going to create crystals in the buffer layer or converse lee if you find some way to avoid are following the directions at the high temperature step and he never went the next step and said what would happen to the growth layer if you did that and he never claimed that if you somehow kept the bottle if they cannot cruel enough and he did it in a short amount of time  you go from a morpheus yes rushton to probably crystalline yes and then and so then that is where the buffer comes in between the sapphire that's correct and here's the critical question and then ultimately you have the m orcus polly crystal and on top of being able to do this or to piece of testimony dr pinter says he did it in nine years after application so it's irrelevant for that reason alone but he doesn't describe how he did it and he certainly doesn't say that he did it through the means whatever you call them described in this and five of the six are undisputedly enabled but there's one that's arguably not enabled assuming we agree with you that it's not a label you don't have to win do you on the idea that everything in a claim must always be an evil you don't have to fight that number that are included in the claim that limited number does absolutely you don't have to go any farther than that and i want just to be clear on our position because we think that it doesn't enable any i'm officially at all in fact it's our position that only three of the six are unable that the well because it's a one some verdict we don't know that they did or general verdict but the point of a rule fifty a motion is to say that this evidence ought to go to the jury on this issue or not to go to the jury in the first place so it's possible that the  accomplish what house about positing the material on the subject talks about exposing the substrate to the material which also strongly implies i direct contact none of the examples ever discuss an intervening layer between the substrate in the buffer or between the buffer and the growth where the close as it comes is when it talks about there being two growth layers and in that context it doesn't talk about the group first the second growth layer being grown on the buffalo airport about the argument that differences in a moment can be overcome by reasonable experimentation written description cannot the question is did he possesses not that could somebody else have created it through additional experimentation beyond what  court to find the same the burden to establish and enablement lies with the party catching it this is after a jury trial and that's a question of law it's a question of law based on underlying facts where the facts are a close call whether jamiel should be granted it was a close call at trial she said oh facts were presented and this is that  difficult technology who says we are experts on both sides and that's where we ended up there was no one's analysis that the the burden the demonstration of the enablement was basically the expert for the posing side went through and applied one of the examples and said under this example an amorphous so where is where is the ok so i know you started to go there but exactly can you point us to where the evidence is you're not  mine i mean this is a situation where the verdict was in our favor and the district court denied jame also resting on that in first instance obviously but if we disagree with that premise at least as judge moore pointed out in the context of this case when there are a total of six possible permutations at most where does that leave you in that case that leaves me with the verdict in my favor and the district court have sat through it determining that it was a close question with experts debating point i want to make this there's a very witnesses came in very clearly this is a two twenty two sixty nine so if you follow these sorts of boundaries within the teachings of the seven three eight you can realize with not much experimentation the type of structure we're talking about here namely the amor burden to prove enablement right and then they failed to carry their burden of this of stabbing it wasn't yeah but ok i take your point but if you're looking at another question which is looking at your witness's testimony and what does that give you assuming that we're at the point where you've got to tell us something hit this conclude i mean this is isn't this quintessential entirely conclusory testimony i know and well and i think if you otherwise it's their responsibility to keep in mind it's not as though these witnesses didn't cite references they said cure i happened to do it in one thousand nine hundred eight here's the the reference ok that's in the record that's not conclusion which don't seem to need to be disclosed by the experts in the testimony here how they ultimately were able to do it four years later six years later and so i think the were very fair question and i think really there's a few things about that one is all they said is we followed so that's the limits of what was presented there are people come back and it was essentially this is technically impossible are people going back to two witnesses and said it's not technically possible we did it of course after the invention we didn't do before the invention we were focused on polly cr and it is claimed as money did after the invention but then we don't but we don't know how they did it yes and what we what we do know is they didn't do it according most likely they didn't do it according to the man or top of the pack right that's right that so the so that turns on it and the only process we know of by which they were able to do it is this edging process and we don't have is testimony suggesting that that would have been and at the time right so if i was appealing if i was on this side of the table that would be a big problem for me but they came forward and said if you use the preferred embodiment which is a pollock crystal in one the temperatures that you use in the time that you use isn't going to work it's not broader than that that's all they said or people came back and said and and with this implication that it was technically possible or people said we it it's not technically possible it's not our burden then i don't think to show a full case with clear and convincing evidence that it was known it was their responsibility that when this what i think step one you know union carbide strike show there say well when did you do it why did you do it with those techniques known that just how i see the burden shifting and so i've seen this court applied averted the jury found it in our favor and the judge that it if i'd like to move on to groan on given the shortness of time i think the most important thing about grown on is that in the short the term grown online is used to mean position above the substrate and we know that from the cited prior art and to is growing on it's page forty four of the b you brief opening brief and what's important about these is that two of these are cited prior art and they just use it this is just fantastic evidence that people in the art at the time used the term grown on to use a positional thing there's no reason to believe otherwise and that's what the district court judge found and they did it deserves a finding of fact  just the way the case law is developed this is halo halo really is the best one to look at for this and it talks about well it's not necessarily where the products are shipped it's not necessarily where the agreement is entered into as a legal istic matter it's an overall faith belief is inconsistent with what the jury found over and over again amply supported which was that they were at a minimum reckless if and or intentionally encouraging infringement so i don't think the the the amount that was awarded was a fixed amount based on a negotiation in two thousand that was a hypothetical negotiation date the jury consciously did that was right in the verdict form and you're entitled and the supreme court just in general electric said you're entitled to interest from the date of the negotiation if the issue is that there's a windfall of the time value of money which has to be here but the liability here didn't start to run till years later i mean how can you i mean that's but if you're negotiating in two thousand about future liability that you know about and you say i'll give you x amount on date a for what i end up doing they'd see there's ample opportunity to take into account the time value of money and people do it all the time i mean that's what a lump sum is when you when you agree to a lump sum you say well i'm doing this but this is how it affects the time value of money right that's what i think that's what people always that's what i do when i'm in in court on that issue and so if there's a time value of money issue that should be related but if i say to you i'm going to give you a dollar on day day for what i do and they see that i get interest from that date and if they think that it's unfair that you have the dollar for seventeen years or twenty years or whatever it is then that's it's incumbent on them to say well they're going to be getting you're case and so they they put on you you say it wasn't possible through any of your expert that and they put all that evidence and says well we were able to do it here two different people that were able to do it how do i don't have a good answer for have perhaps we shouldn't but what you end up with this testimony that dr pyne are saying look there are reasons in physics why you can't do it the way the patent teaches their response isn't that no in fact you can follow the they only say they assert that you can follow that and you don't explain how and the only time they explain anything about how it is with respect to things that they've done years after the patent three methods they don't even claim were taught in the past i think that that's simply not enough good incentive to say that because in this written description argument that said that he didn't possess this version of the device at the time and as a consequence his failure to even claim that he made it at the time using the methods