respect to the few wards that the district court awarded during the case circling back to issue one of the we believe that the district court did commit her when it failed to import the limitations of the preamble into the claim eight of the eight by five pass history of the child application that came from the a fifty five dollars patent or the examiner required ruhr elements to be in the claim itself indicate that the brewer elements are necessary purposes of this claim so let me stand up for so if you want to claim this real useable capsule that you plug into the growing device separate from the brewing device how would you claim that you still have to describe what the capsule is its various structure and how it's going to work in that room or don't you i think you do but i think you can do that in a way that doesn't incorporate some of the elements for example when you're talking about outlook there are ways you can use by talking about the depth of and how to progress optical without referencing the specific parts of the brewer such as the needle and the specific needle that comes with a single server a single serving brewer how if specificity what that machine is and how they fit together you see it yes i think you have to describe the machine but again i don't think you have to use the terms from the machine in such a way that make them indispensable to the understanding of the claim which again is what you this argument now tells me is this the reason is this what willful infringement issue is based on no your honor there i don't think so ok i think that's a separate issue but i think  it just baffles me how you could argue with everything about the language of this claim is talking about a brewing device as the invention and describes the basic structure function of it and all the like and only at the time it  the actual brewers just to say that it's for use with this but he doesn't claim the brewer well i disagree with your i think if you look at the figures and you look at the specification of brewers mentioned throughout and when you look at the child application of the eight by five and it does claim a brewing system in its entirety it claims the brewery and the capsule and the reason that it does that is because the patent office required them to incorporate the terms from the brewer in order to ach i'm happy to explain that if it was allowed as a single claim to the group in device rather than a system claim that's what we have to look at it was allowed only as a result of having a different examiner than the examiner from the child application and the president from this court makes clear that the prosecution history of related patents is important and we can show you have other arguments in this appeal we do have other arguments your honor but not with respect to the to that issue so the nd and rd issue that i wanted to speak to are the few words the nd feel wardak was granted as a result of the district court granting echoes from the motion for non infringement and our position is that the district courts claim construction erd when they claim that the passage was when it construed passageway from the few twenty pattern to the narrow and that word narrow is contrary to a specific and body that is found in the past somebody judgment was probably right the only so they could do this risk or construction of the passageway was based on its own it's own interpretation was not offered by either party and with respect to whether or not it can be only an opening  or narrow space you're on the only link that is discussed is it described in mathematical terms so it describes the length as five millimeters wide and having a variable length anywhere from one millimeter to twenty millimeters so our position is that by saying narrow it limits the passageway to the twenty millimeter wing whereas a well that passageway that has five millimeters in the way and only one millimeter in length is not by definition and that's why we believe that  consideration of the denial of the motion for summary judgment and so what do you mean it was made without consideration that the judge certainly knew that summary judgment had been did not say but there was no analysis of how that denial of summary judgment played into what was presented in trial and keep in mind there's two different judges here so the award to the extent the wonder is that they're going to trial court judges they get a look at the record then they get to make a decision within their discretion and we review it sure i was going to do that a revote of i can do that now your honor to be in order for i could to prevail on its argument that the jury instruction was erroneous they would have to show that the instruction as a whole failed to capture the law correctly and show far in this case we don't think they can show harm for a couple of different reasons and one the jury instruction how do you address whether the instruction is correct st sure we believe i mean i know you pulled it largely from a model from our association but it seems a little problematic to me that it's directed part of the standard to the jury to determine whether the jury thinks it's worth the punishment that seems to me to go to the ultimate question of whether enhanced damages should be awarded which is what the district where to decide right i disagree with that think in in practice the district courts have been awarding enhanced damages i think if you look at it no it's not really worth having a discussion with you if you can't read hill of and recognize that the ultimate question of whether enhanced damages is a question for the judge questions about like willful infringement it can go to the jury but the ultimate question of whether or not toward enhanced damages is always for the one would survive is that enhanced damages can also be a jury question to circle back to the question about whether or not they can search shows correct we believe it was because when you look at the words egregious willful wanton malicious conscious disregard in hal here because that seems to me to be the ultimate purpose of internet stamets as which is to punish the willful one printer and not question and just assume i'm right i'm tired of arguing about this just assume i'm right and that question can only be decided by the district court isn't having that question about punishment in a jury instruction problematic if i assume that you are correct then yes the worth of your punishment language might be problematic but when you read the entire  say among examples of malicious deliberate consciously wrongful or done in bad faith the problem is the inclusion of the only the most egregious behavior standard before basically tells the jury that you have to find a heightened form but deliberate intrenchments is egregious behavior seems to me a little hard to read that particular part of the instruction and saying that you have to simple as deliberate or intentional or it can be a heightened standard of malicious are done in bad faith here this jury instructions specifically said i agree just which cast in the light of the heightened standard but that's not all i'm counsel suggested that this need to be looked at as a whole well then what do you do when you have this additional issue of especially worthy of punishment because that takes it out of a whole different realm and from the beginning halo decoupled willfulness which is a jury instruction looking willfulness it was always in the context of what constitutes an exceptional case there's two things here going on we have willfulness subjective intent whether they knew or should have known iraq to with reckless disregard that's something for the jury to decide when determining an exceptional case which applies to two hundred and eighty four and his damages which applies it to eighty five that is the province and always has been of the judge you can ask the jury to see whether this case stands apart from the others is likely was the jury's  instance i've ever seen a case that's the province of the judge you have seen many cases and to decide this case stand out different from others so your view is the kind of last sentence is also problematic because whether something or not is  for the judge as well but it is your honor because it's then you go back and look at the reason factors in one thousand factors one of which is willfulness unfortunately over the years and there's been a many decision which of cause confusion with the court in two found when there is a subjective willfulness no where in that case they indicate an express or implied component of egregiousness that's what we have that's all that's all true but i guess what you're saying is that we don't this is an several years has been used and that's all that we as litigants in ports have to rely upon because we don't have no other jurisdictions but here's what the result of that has been within a span of two months and you propose a different during instruction on this issue we did your and it was of the federal circuit bar it was not we specifically struck out language for we started with the federal circuit bar and then the court we raised the objection and the court then asked for a briefing and then i originally agreed that the instruction was fine well your honor we preserved our objection there's been no question that the judge allowed you to backtrack and she joins us well and and but i want to talk about how significant this is an even if it is an issue of st impressions when the needs of the court used to take up we cited in our case the erickson district court case from texas we cited the about and the case from delaware and then our case within the span of two months in twenty thousand one hundred and eighty three different courts struggled with this judge pain in the erickson case but st had it in the jury instruction very much like the bar he says punishment agreed just to find willfulness and then after art he came yes your honor but this case is one that mandates as i couldn't probably have drafted facts that are more compelling to show that this was harmful error in that situation and it happened this way let's look at the if you look at the st paragraph  way by the nd paragraph that since out of different instruction to the jury i'll be very precise about the answer to your question is it cured in any way i think that it helps but do i think that it cures th prejudice caused by the st paragraph requirement of punishment in egregious conduct no i do not and he isn't going to do or give his former right i mean that would not be legal in the of the nd part is fine that's correct but unfortunately taking it as a whole it is legal  because it tells the jury putting them in the place of the court you have to compare this to others and find that this is especially egregious and especially worthy of punishment all things that the province of the judge and in this case your honor the district court specifically recognized that if this was bad law now unfortunately the district court characterized the bar association instruction as law when it is and it's an attempt by the bar to be hopeful but he says if this is bad this was not harmless  and we know this we can never get inside the minds of the jury but here we've gotten about as close as we can the jury after five and a half hours of deliberation came back and said we agreed everything except this one question and were hung on that and we have very divergent views and that risk last of the judge was go back and read that instruction and when they did after what was obviously a close call they came back well in this situation as this court recognized the standard for harmless error is it's harmless if there is no way t we don't know your honor i think as you noted earlier who is in the best position to ascertain whether or not it was harmless error seems like the district court judge that actually put forward that instruction and that judge found clearly if this was wrong if the statement of the law is wrong then i don't believe it was harmless and moreover if that was wrong and this is remanded as it should solely for the determination of willfulness then it will reconsider at that time the exceptional case for enhanced damages an attorney's fees this is perhaps as i said the most classic case a scorched earth litigation all the reasons that the judge looked out for exceptional he was teetering on the edge of granting more award of sanctions or has damaged but for this will to miss finding because this was based on an in accurate statement of the law and the jury was teetering on an edge i don't see how it can be hard considered harmless and even though the court is low three men in this case to affirm everything else which was proper and i'm happy to talk about the other issues that were raised they seem pretty pretty pedestrian compared to this but this case needs to be remanded for a jury determination of soli wil and after that a reassessment by the court within its purview about whether or not it is an exceptional case and further that enhanced damages and additional attorney fees may be warranted in this case of scorched earth litigation by by doesn't say and doesn't refer to adapt or fifty just but just a whole figure right figure four i believe shows a hole in the top and it shows the passageway where the needle goes in the bottom which has or length and it must have depth or length to allow for the needle see there is a difference in how the victorians were used opening as this court recognised was not used the same as passageway and this judge was relying on the intrinsic evidence and how it was understand correctly that you're critical of the district court because it didn't refer to figure four which shows the depth of the length of something that may be the case but it still was present in the pattern that the court looked at just because the patent didn't point to specific early figures can work a limitation out of a single in bottom right that's correct but every embodied but every embodiment that they talk about even when they get down to defining the the the millimeters and how different it is every single time they talked about the passage way they talked about it being configured to receive the needle in other words something that had depth and length every time they talked about the open on top of the lid they did not talk about something with depth or length so they used opening different than passage when it was they say that it prevents the needle from penetrating the broom material that's inside so in other words it has to have some kind of a depth to be able to to act as an offset before the needle from piercing the contents of this container so that's the difference between that and the opening lly effects the three new species you're right on and that's the other thing the obviousness which the council just like you did below is no time dealing with it all because you can't overturn the jury for any of the pieces in the court's old with determination the claims are going to be invalid just like this court held last year in the federal circuit about claims five hundred and eighteen dollars so it's a moot issue but beyond that it still does because of the way that they prosecuted those notwithstanding the fact that they should have known that they were invalid this court held  the independent claims were invalid and they pressed the issue admittedly simply to keep the injunction from the i t c alive against our client precluding them for more than a year they kept that alive all the way to the time of trial they didn't participate in the the well they still the claims are still invalid does nothing with those because the claims eight dollars ten cents were still fell a found invalid after trial by the jury and so the issue with respect to the claim fees have to do with obviousness pertains to that this would have no in fact it's not like business becomes more difficult for its construction and said i'm sorry the obviousness or it becomes more difficult passageway is or is not of opening a page sixteen of our reply briefly pointed to a couple of different points within the specification that highlight that the words opening and passageway were used interchangeably for the bottom part of the  are not this opening which you're referring to when lines fifty four following is a different opening the we're concerned about the definition of passage which i don't believe it is or i think it's ultimately both are referring to the whole at the bottom where the fluid out flows the capsule you know there's multiple that we've just seen there's multiple references to passion to weigh in in this apparent but i don't see any of them  that that reference to known as depth or or or specific link and am i missing something though you want to that's exactly correct if i can you ask the question why does it have to be narrow to accept a needle i would submit that it does record seems to me that your answer to duty dicus was that if you knew the day it doesn't matter what you know you'd have the opposition is that if you were versed on that construction that would lead to a reversal of the grantor summary judgment or not infringement which would to see them over again thank you thank