the first time manufacturer and the fourth manufacturer was different in any way there is your honor in question i take you to mean was there any evidence at all between the first  cosmetic technologies and the fourth manufacture there is evidence discussed in thinking page forty two and forty three of our opening brief miss miss the change that please please when you run the test to a comparison with what i have now a friend cosmetics in the period of december twenty three december twenty seventh or eighth again said in the formula had experimentation in the interim period because there is criticism now there's there's nothing in the record one way or another others and the any of the test batches were ever offered for sale for soul there's no evidence that helped with the bomb plot and stuff was solved she says she got some points but she continued to sell after the complaint supposed complex right it was correlation and there is in there is there's just two pairs of test dated two that are that are available in the record first the franco's medics retains samples of lots forty seven ninety five and forty seven ninety six tested micro clean and it's a twenty three ten but the cleanser packets from a lot forty seven ninety five turned out to be contaminated and that's a twenty three thirty so what if it were dealing with the lotion but but bear in mind that the cleanser in the lotion were made in the same facility the same time using many of the same chemicals the same form not the same formula but but again what we're looking at is is the issue of whether there's data on correlation or lack of correlation with the in vivo of in vitro and we have that data base on didn't say something different then nothing in the record suggests that in vivo characteristically the district court was very clear here with the district court so this is the noble review shows that there is no correlation between the retain sample in the finished product we've got a friend's husband and two friends cosmetics and then libby labs made and bottles again two and decided juries can you know substantially go either way on some factual issues so you know i knew i knew that a lot of your worries like why should you be using relying on in vitro is that in vivo the jury heard the difference say when that argument was made was your charge and that doesn't apply because it actually has to be the embodiment of the invention which is sold we don't know the judge we don't know exactly what was sold because there's no test on that finished product all we know is what the documents show  there was one retained sample on the analysis in ninety three and then in early ninety five there is a truncated seven they there there there is correspondence and again it's identified it's pages forty two and forty three where frank cosmetics is mid lee made products that were out of spec that didn't comply with different obligations  so when i say it's not clear i think the evidence affirmatively shows friends cosmetics was making products that didn't meet the men that didn't meet process and admitted such in with for quoting this man's story this was an anti microbial products six but it says products and in the transcript this was an anti microbial products that we were selling to baxter that's what we're offering anti a nine seventy is for testimony on it and twenty three zero two two zero five is the formula that was provided to frank cosmetics she admitted that that is covered by the five sixteen pad that the eight and sixty n the past their ultimately successful contract manufacturer used the exact same formula to make the lotion that was ultimately according to this man story acceptable to mark that the pages ten forty five and ten sixty this argument that somehow or another ms man's story and l s e intended to sell or i should say offer to sell excuse to use the language of fair offer to sell a contaminated product well of course intent is important in any contractual formation so what is your opinion for the court in the linear technology's case uses intent is an important consideration to determine not only whether there was an offer but whether there was a contract that's that's all that intent was about  be in the direct violation it would be truly remarkable event if you take a look at the the order sheet as well as the product descriptions which are in the record as part of the declaration that was filed in the patent office with regard to the ultimate tech there's a picture of a bottle bearing that very number and that's what the invoices to baxter and packs that show was actually sold and all this took place in december of one thousand nine hundred three well before even my misspent stories on testimony well even well before she claims to have discovered that there was contaminated now the of course there was no judge clevenger in the or in vitro testing of the final product so that's an inference that after a jury trial my friend on the other side will try to draw that when you order a commercial quantity of product that is itself evidence that you had confidence in the invention was completed operative but even if there had been a reduction to practice just wall p you pointed out in your question to my friend over here earlier the spec sheet the formula is exactly the same the problem here was it didn't have anything to do with the invention the problem had to do according to ms man's story with getting a clean lab to manufacture this that's ordinary part of the sort of stuff this was not that there was no it's criminal use defense here this was not an experimental use case and while i appreciate that there may be some confusion in this court's jurisprudence about where the experiment defense or element comes in this is not the case where it matters i don't think mr salinger covered the instructional issues in his opening so all that aside i will address those if you'd clean skins and we're not talking about contaminated meat we're not talking about something that's contaminated turns it into a poisoned she this man sort of obviously was trying to sell something not contaminated reasoning backers you have to process and they need to know so they have to get back and back that that's what what more do you break that chain of reasoning that the jury had to come to conclusion i break the chain because there is no evidence that allows a late yury to go from the to in vitro test data points on forty eight twenty two to conclude that forty which which is of charge issue i know he made the argument about purple it doesn't matter to contaminated or not but in at the end of the day as as as you said denote a review in the question is is there sufficient evidence despite all the arguments that were made on both sides to allow the jury to to leap from the the in vitro test data on forty eight twenty two to conclude that what was admitted really salt men effect is to kill microbes on the skin limitation of the claims and