have one of those waves did you make those arguments below yes we did and if we don't see i don't see the sufficiency arguments up until we get into a reply brief get where they included in your in a blue brief yes they was satisfied is that the local rule is understanding the local rule is about contention it's not about having it it may be a dispute about the specificity of the contentions but you can't be more specific than what you actually know right that's the contention that we asserted in our opening brief we focus more on the opening brief on the requirements of local rules that say that you you have to provide as much information court should not have issued a summary judgment determination at that point well because because the the defendants in the case below were the ones who framed the issues in their summary judgment much and they could have easily filed a summary judgment motion that included declarations and affidavits and evidence saying what they did or didn't do in their laboratory they didn't do that they chose to file a motion that was they they could have filed a summary judgment motion that was substantive in nature they could have come forward with separation saying we don't do this element and if they'd done that we could have filed a rule fifty six f response and taken discovery on that and we that the pigs which were served four months earlier and five days after and cancer first a certain person claims do not comply with the local rules so the only issue was whether the techs complied with the local rules the content of the pics was undisputed what discovery could we have taken beyond that i mean the only thing the court looked out was the pens the four corners the pics now we submitted declarations in addition to the pics in our office into their summary judgment months and this record ignored those declarations which we think was wrong frankly we don't think that this was a proper a particular claim element that at that point the court could grant summary judgment on the grounds that not having even contended that an element was found in the accused product you're not going to be able to prove it either because you're bound by that contention well i'm not suggesting that that's what this case is but that it doesn't seem to me improper to grant summary judgment on the grounds that you have not even by the defendant where the where the only information disclosed it's known to the planes of this information and posters in articles and most of the information about the details of what they've done never i mean i guess i was really confident something that i do not see in this case namely where your contention you don't take claim one element one and you just don't say anything at the plain language of rule fifty six mandates the entry of summary judgment after adequate time for discovery and upon motion against a party who fails to make a showing sufficient to establish the existence of an element essential to the not mean to say that argues that the patented articles in the poster i'm sorry the poster and the article that we attached to the parents clearly shown that they had to use the  people imaging whereby the ability of said promoter through expression is monitored so if you're observing the presence of the intensity of observing the presence of the forest is promoter monitoring element and looking at a transgenic mouse expressing the g f p but i don't see that you made that argument before the court we did not make it specifically in those words before the district court is that correct absolutely not we submitted a declaration from dr hoffman the founder and the c e o of n t cancer laying out in detail why this the exact same arguments are making here the court that whatever information the district judge felt that were police or sated was missing was secret private information that was available only upon discovery yes iii you know when i said that i was new to the case and i had not fully comprehended the the details of the technical issues i was focused more on the the fact that the local rules the pattern of the rules required and the court order required and cancer disservice picks five days after it filed its infringement claims and before it had any opportunity to conduct discovery i was focused more on that and when i said that i was making the argument that the that there was compliant with x but i didn't go into all the details but i did point out that the local rules only require you to you don't require you to reveal information that you don't know and but i did not discuss the details that i discussed in my reply brief when i replied to the of activity so there was no evidence there was nothing supporting it in the fridge with contention so based on the infrequent contentions we made so it's motion and said they are not going to be able to prove these elements and that was it was  but but it was like that not evidence sufficient evidence to overcome a summary judgment because it doesn't it doesn't lead to the elements in other words we talked about promoter monitoring we conceded essentially that there's no promoter opening papers so arguably waived before this court differently and can interrupt why are we talking about evidence the local rule doesn't talk about evidence this is the contention but they say where is this element in the y f experiment that was then produced the results in the paper they say it's here that's the local rule doesn't say anything about evidence this is about contention it's a summary judgment motion though in other twelve and that's about contentions about claims evidence is about the support for local rules about contentions are not about evidence they are supposed to frame the discovery evidence that are then supposed to that is then supposed to be presented later in a dispute about with experts about whether there is a really a triangle issue sufficient evidence that a trial if i could find contentions were going to set a limit on what they would be able to prove at a trial court summary just a motion we made a summary judgment motion under seven x we said they would not be able to prove infringement you're missing the the to pass consider relevant and if it is not now you just importantly i think shifted language missing these elements that can mean missing contentions as to these elements which i don't think they are missing or can mean missing evidence in support which the local rule doesn't require them to provide the local rule basically sets out for the sets out what they will be able to rely upon as a final contention in the case and so this week a step forward to trial and if we simply are sitting in a trial that would proceed in this case they would then get up and whatever they would try to to say show at a trial would be limited and circumscribed by what were in their met so they can contend all that and then the question is what can they prove at trial well i think that i think there's a little bit more specificity in how the analysis has to be done in other words they were i agree that there can explain about level of specificity of contention but two things that's not a dispute about evidence and second the level of specificity whatever it can be can't be greater than what they know right but say that this part of the defendant's process infringes the path i'm going to see that these three elements promoter monitoring the living cells metastasis to a second site are satisfied by this precise aspect of the of what i'm showing and that's what they're going to be hell to they're not about to push the defendants to trial by saying one thing in their infringement intentions and then coming in a trial with a completely different  ambush unless they're withholding some knowledge that they have they said everything let me ask you the question what did they know that they didn't say well they have they have some theory of the treatment in this case that they're planning to assert what did they know about your experiments that they didn't say i don't know what they knew about or they seem to think that the satisfied and there is no second time in the experiment they show this to us indicates why are we going to waste time and go forward in this case they've had nine months from the time that they announced this was a pass and case on september twenty first until the time the judge enters her order whining do defendants have to sit and watch and ask for specificity and information that while someone does absolutely nothing take little discovery but the initial information is of course not something you need to ask for the initial information you have if your experiment you know what was done we had to produce the paper in the post that we know what we  no discovery requests at all no rule fifty sixty requests nothing and so these looked on the surface and we stand by this today that they don't state clearly that they they don't set forth the primus they should case of infringement based on these infringement contentions if we fast forward the trial they're not going to be able to put in any arguments different from those contentions so they will we will simply have to go forward at that at the trial and watch them limited as we so temper twenty first they told the magistrate judge we want to bring a patent claim in november fourteenth you know several months later they have to do these pictures almost two months later but do i understand right  the border i thought i understood that it was agreed that if they were actually for beginning to take discovery until november first i think that i think that based on the orders that were in the court and the and the early meeting of two months and you know to take their good face analysis of the past and something material they have and do something with that they then had another three or four months before we brought a motion and they had a total of nine months from september twenty first to june first when the court entered it so were there was no prohibition against taking discovery there was no prohibition the saying wait a second i want to take some discovery and you are telling us that they were authorized to take discovery in that two month d if you don't have the evidence you need to file a request and a file declaration to say why you need a specific evidence opposes the motion why such evidence even exists why such argument so basically they turn the fact evidence into a legal argument essentially a claim construction argument a very simple claim construct an argument on x is the issue is whether or not the  claims require the amount sufficient immunodeficiency to allow metastasis to a second stop site ok they don't require metastasis to a second site that would turn him into a method claim or product by process playing some sort of the the focus in claim one of the three three seven patent is on the characteristics of the mounts the mount has to be the the interesting thing is that is that if you look to the title of the poster that they that they publish it almost says it all the title is stablished ment of the orth of topic primary human capacity a cellular carcinoma model for ontology drug discovery they're admitting in the title of the poster that it's also topic meaning that you have cells from a human liver being put into a mouse liver cells from a human brain being put into a into a mouse brain admitting that it's a needle plastic does disease that it's cancer basically that's what neo plastic means it's its new cells that form abnormally or or irregularly  metastasis to a second site was a requirement she just never went there she just bought their arguments lock stock and barrel and grade summary judgment ok so now as to mr lee's arguments regarding rule fifty sixty i disagreed with what he said because if the way they framed the issues in their summary judgment motion all that mattered was the language of the parents and whether the pics complied with the local rules that local rules if we had taken discovery if we follow the rule fifty sixty request and had come back with additional evidence the district court would have ignored that evidence the same way she ignored the declarations of dr hofman we submitted she didn't want to hear any any other evidence she considered those to be new theory r those she said this is new new theories that are not set forth in the text and essentially she she didn't look beyond the four corners of the pics to determine whether the pics were sufficient now discovery responses pleadings requests for admissions responses than arrival tori's and affidavits if any and it's a motion that's brought after the nonmoving parties had an opportunity to take they could have come in and said this is wrong because we did not do this step this is what we did in our laboratory and then we would have an opportunity to follow the rule fifty sixty in the sense that kind of like an article the  that if you have a green glowing mounts you had delivery of sells them out because my stuff lo green without having some cells delivered to them that are gloomy buys or knows that there in response to my question you said you did not concede that the pics were or deficient yet that's an issue that the court was looking at and i don't see that you argued the sufficiency of the pics below we did we did and i can only say that did and we submitted a declaration from dr hofman that is not part of the record here but dr hofman made all the same arguments that i made here today regarding the b metastasis to the second side argument he went boy should what should the defendants offer up the greenmount if you haven't you haven't put before the court the claims in controversy or limitations that