has a very particular limitation a limitation which caused us not to challenge it politically we challenge the validity of every claim certainly every claim was invalidated except for the one we did not seek to invalidate claims six of the three seven to this claim specifically requires that the relatively selectable and portion is what causes the minimisation of the insertion force of the instrument no evidence was submitted and in fact in the pretrial proceedings in motion in limine practice they tyco admitted they had no evidence of this reduction in arguing prejudicial to the court that they needed to have some testing admitted to the jury which was excluded judge pla the peace and and you'll see the very very thin tips of that protector those tests do not produce the in for insertion force at all of appealing only the portion that resulted in the four point eight million dollars jury verdict which was the infringement of that one claim based on that one limitation in claim six so your question goes to the process and it's very reason enough to appeal to four point eight million dollars with interest led to six point two million dollars based upon the allegation the conclusory statement from an expert that the meaning of our tips is what caused  option insertion force now we didn't challenge validity because it would be very very difficult to actually have a prior art devise the test to show that the standing for variable rigidity reduced insertion for with the same reason it was very difficult with no testing at all for the plaintiffs to prove that the finning or the more flexible or relative flexibility is what caused a minim but what i really care about with regard to limitation is that it begins some meaning i believe that typo is getting it no meaning and tycho gave it no meaning throughout pretrial and trial and causing the district court to continually emphasize various pieces of the claim language that shows the interaction between the leaflet a guard member and the last american material that would lay behind that piece you have in front of the judge later they now have abandoned their trial strategy the trial strategy below is very simple they relied on the patent itself with a patent says if you send it to an expert testimony for them on what's now they had expert testimony with nothing to back it up the problem was they their tests were excluded so the expert was at trial with no data no testing and pointed to anything he could in the courtroom he pointed to his own fingers he pointed to the binders that were on the desk he made analogies that if you chop through the binders and the desks to up his conclusory statement trust me if it's there it's easier to go through whatever that means and in my view the district court erred and even letting him present a bottle case on his prime if they say case of an infringement after excluding any testing that they wanted to introduce and for that reason is our view and we submit that no evidence supports the jury verdict of infringement of  that the three three three seven seven of different things not all of which tied together to any one thing and it's almost impossible to figure out exactly what it is the jury may have thought about isn't it that's correct but the standard of review allows us to look at what the evidence was on this particular point all the evidence well the parties are very clear in the briefs what evidence each is relying upon here it's very clear th guess is as good as mine what he meant i don't think that statement is supported i don't know what it means but you can feel for this poor expert because i there with no testing no data nothing under a bottle with a new claim instruction that jail levon five five three as being one point where the test showed the ends were substantially more flexible sixty percent more flexible than the guard members but it was talked about throughout that testing and went to the flexibility a s mr ray argues there is no evidence that's clearly true there was lots of evidence there was no dispute that their design reduce friction that the result of the insertion forced or is reduced there was expert testimony of the testing their own documents the question that they focused on is under the district court's construction is that reduction in force due to the flexible ends and on the had but we did also have evidence there was  the test that the expert performed to show the changes and flexibility he testified for more flexible material is easier to pass through and thicker less flexible which explains how the seal acts of a constant force against the guard member this is somebody with twenty years intro car design you know how these things behave in those of the valve seal acts as a constant force if the jury question it's just that simple and under the highly coined so if it also reduced and extraction courses that's fine if that was one of the intent of applied design that's fine too it's not really relevant the question is did it reduce the insertion force and we have that evidence to show that now there is some debate about the tests and the quality of the tests mr ray referred to the test is expert but we're not here to judge whose tests were better there are valid criticisms of the test that applied to expert did so we pointed out in our breed it was well a separate issue that's a separate issue and as the testimony of the trial was that's not the way they are normally so a jury could actually infer that if applied had to do the test under such conditions that maybe if they used them under normal harmony there's no dispute applied conceded that it's one functional limitation and this court was says there's no general rule that says you have to have particular tests any method of analysis that is probative of the fact of infringement is valid that's we have a taste the expert testimony usually when somebody says it's composer e that's the label that's put on it after the fact so the testimony of that we have cited it shows that our expert testified that way and back it up i should that's right you know we did repeatedly object to that we did ask for a claims instruction on that the judge said he was going to give the client instruction on happened but he didn't and that's our argument on appeal is that the judge was required to construe that point when the area of the dispute became a concrete and definite dispute as a did throughout the trial because it was objected to repeatedly is thought it was plain enough that's right and put into a position where they were forced to make that point construction that the judge should have done we also have our cross appeal on the green patents and this deals with a means clause means engage a to function there is to facilitate expansion of the aperture of the bow now we're arguing here that the court did not adequately described the corresponding structure the simply described as fingers seventy eight and there was a dispute that we said that corresponding structures should be the fingers conform to the wall of the valve or that that was what was described in specifications if you look at the and opening the aperture there are plenty of other structures that would also cistern opening the aperture but for mains cause it has to be the structure that's described in the specifications and simply saying fingers seventy eight was not enough  four minutes plus you'll notice that mr jakes referred to the testing again but that was the testing of the pieces in air which they admitted on the record repeatedly was not probative to infringement if you go to page sixteen of the blue brief i list some of the admissions and arguments made by tyco in showing the prejudice to not doing additional testing and so the testing that jackson referred to there on the record as saying that those past and their expert witness had not previously performed tests to determine whether guard members with more flexible and portions independently reduced insertion force which was unnecessary under his prior interpretation of the disputed claim turns out that j a seven to eight three and i listed several of the admissions on page sixteen of my grief where they are denigrating the very test now say are substantial evidence you'll notice in the read read and the great grief nowhere have they dealt with any of these and missions as to the lack of progress of nature of the very testing that mr jake now says sixty percent reduction all that shows is that a sixty percent reduction when it's thinner than sicker but nothing to do with the two devices and how they reduce insertion force in the truck with regard to the  cross appeal the judge is well aware of o t micro and in fact this same judge in both trials repeatedly refined the claim construction throughout so to say that this judge who sided otu michael in his several markman opinions is really not fair to the judge below because he was well aware of his continuing obligation to refine the claim construction and the claims instructions were more than adequate under the circumstances the phrase mr jakes used and i think the judge did a stellar job with regard to the cl constructions that issue on the cross of p m with regard to the means engage people in the one four three patent the district court did a fine job showing that there was no linking no linking to the function on the one twelve paragraph where the plastic flexible fingers seventy eight had to conform to the inner surface of the last american valve that was clear that part of the specification was talking about assembly and positioning and not across the val and by that assumes the hope in the aperture that's how it works that's how it's described it's not a separate function that it conforms to and facilitate there would be no reason for it to conform it's not simple in a way to assemble and when the position that's how it works it's different than the rigid levers which were in the prior art which provided enough not a conforming force but the more  you know pushing a certain point the other point i'd make is on the to micro and our process of peel on the smith patents yes the judge was well aware of it this issue came up fourteen or fifteen times during the trial the judge said