that judgment is a matter of law should not be granted i want to see evidence points all one way or unswervingly one way we would respectfully suggest that that was not the case here there were nine licenses that a b c entered into that required marking there was one that did not require marking that one which was forty percent of the sales at least like the  the cross pollen has suggested that it could have been your honor but there's no actual evidence in the record that any of those sales were made after the license agreement was settled in fact if your honor would have i'm sorry i didn't understand your and none of those deals were made after the license agreement was settled yes i'm sorry i misspoke there was a there was a lawsuit in two thousand and two for sales from two thousand to two thousand and two and in march of two thousand and three that lawsuit was settled by a settlement agreement and any sale after that license agreement dated march two thousand and three were projected sales only there's no evidence in the record of any actual sales involved and the i know it's not going to mean you're good you're assuming that the existence of the license is circumstantial evidence that a license even hate correct why why is the inference that it is reasonable well i don't think it's unreasonable because it would be a free to contract and subject to a lawsuit if they didn't comply but we're certainly not taking a position that it was license agreements alone it was an ominous i mean that beyond that we had unreported testimony from the inventor armand ride he was a very visible in the industry consulting he went to numerous annual trade shows he policed the internet  said i asked him how about trade shows do you go to trade shows answer yet they do coffee and typically once a year at least once a year is that something you look for not yes for the ones that are the trade shows i would look for instance arpanet was just back then that would be at least problem with ben maher i had a dispute with r p c and the pull product off the shelf marked it put it back on the product so there was evidence that mr rudd was monitoring this  and and it wasn't just a situation where where he just relied on a license green and i think it's important to recognise you there are some presented no contrary  and i think it's also useful to realise that honeywell it is you know this multibillion dollar company had had a bargaining position with imus with a b c that little a b c sell proprietorship didn't have it would be it point based on the timing issue in other words the court said it appeared to me that the court said so only because the licensee records were created before after the lawsuit started that along kick them out of the hearsay exclusionary rule and we would suggest that that that is not the law and big and because the evidence demonstrated that mr rudd relied on the marking  not explicitly but it is in the sense that the fan recycle control feature inherently requires right here klyn for and without logic until i don't think so you're one because the fan recycle feature hack inherently must and work in tandem with the system switch because because the fan recycle feature says turn the fan a squeeze me turn the cooling when when the cooling system goes on or off pause because a finding that the old one seven patent is obvious is just causes of the entire case i will deal with that issue first and then i will follow up with the damages and marking issues that have been raised by counsel for abt the patent in this case is exactly right the supreme court in tears are said is obvious and that is an arrangement of all the women with each performing the same function it has been known to perform that yields no more than one would expect he also testified that it was well known before his invention that when the fan ran it mixed in cool the it makes and circulated the air and then when the fan stops running there was no need immediate reach to run the don't you have to convince me that those reasons are needed yes i do ok if looking at dr steele testimony here he said that the direction you would be led by petroleum focuses on examined and i focused in the cross examination on not enablement and teaching away which were two areas that he focused on not on his rational for ho doesn't work that was one of the ways he was going and so i focused in the process on the enabling argument which of course is that it is still useful for what it is closes and on the  the combination so the fact that the or nearly as an vulgar thing patton didn't say you have to have a pause here meant that they were chasing away from the country and trying to define in my own mind assuming just a purpose of argument i way he's wrong on both of those and he said that the reason that one of the big reasons he wouldn't combine them was that they had been different a different objective in the  before you blew it back into the have that was the objective of the testified that there's no need to run the fan again if it's just enron because there is there is a lawyer in the air it's been well mixed there's no hot spots cold spot stuff year during the call for heating and there was evidence that a number of companies had taken licenses a couple of them stopped making it after they took a license emerson took it out of its product and so did they make did they put it in yes in a very small percentage of their thermostats this is dealing with just these big blue thermostats for emerson and it's it's like many other markets if your competitor put something in you put it in which is exactly what the evidence showed here honeywell had a product out that was the first to run that way and it also had a great thing touch screen on it and emerson really liked the touch screen and excited we need one fifty nine forty three line twenty through a fifty nine forty four line fifteen testified that the basic control strategy of of thermostats use in france was to run the fan only during heating and cooling the so called feature and then he went on the list of about ten variables that could affect an operation and he ultimately admits admitted that there's his quote too many variables making a quote too difficult to know a clear answer when you're on the he's basically saying there's just too many there's too many variables when it comes of an operation to know when the fan ought to be run and so that's suggestive to a person wonder why it is that marilyn whether or not i don't know if he clearly parsed that as a legal matter i think it's fair to say that he gave specific reasons for each prior our preference why it was not obvious for example and damages it the only point i want to make sure it's uncontroverted on this record given the evidence that our damages expert could not understand their their january two thousand and thirteen spreadsheet and that eight thirty three eighty five eighty six paragraph three and we told the court during the trial it was quote we struggled with this with understanding the sales numbers it was quote incredibly hard to understand them at eight fifty six thirty and we suggested a reasonable solution we said your damages expert doesn't have these numbers in his report ours doesn't either we can't understand them we can't understand the stipulation you're giving the jury why don't we just give the jury a row theory and then we can we can determine these numbers will that we can figure out later after the trial we thought that was a reason solution but it was rejected once one less thing the district court teach or hold the wording damages for infringing sales before the jury and in fact there were two that we cited to her maxwell and boston scientific and both of those cases in particular boston scientific is this  just a couple of things that i want to clear up first of all there was talk about dr siegel and what he had said he also testified that generally if the fans been running us assume some mixing and so don't run the fan for a while because the air has just been mixed which is exactly the combination that he had said earlier was part of a way from it simply a combination of the prior  run the fan but the run patent doesn't answer that either the run patent simply says there is a pause before it starts cycling and you can set that to anything it could be a one minute pause it could be like emerson's a one hour pa  well no no no you're on your cross appeal so we don't even though i cautioned your friend ok i just wanted to respond with what you just said no i appreciate that but i think we're out of time all right thank you