but you can see there is lots of oxygen so what does that mean it means there is no seal tank and if there is no seal tank we don't infringe that is not the claim construction that was decided by this court in the kingdom wade decision m had a d m c had a plan and repeated that claim construction to the jury multiple kinds and they three they five they seven and at least seven times in the closing argument no jury was not misled by z and c's claim constructed and i will address each of them st they will argue that the claim construction that they proposed to the jury is the kind of construction that was decided quote the issue was not getting air into the tank the issue was the vapors from the organic solvent getting out of the tank which would create a hazard for the plant in the people in the plant because the hexan vapors are dangerous so the claim construction that was rendered in decided by the kingdom where a decision was based on safety concerns because that's what judge gilmore ruled during the market hearing in the lower court in this court is e m c telling the jury if there is oxygen in the tank there's no infringement was a complete distortion of the meaning of that claim construction which misled the jury know neither the st and most importantly neither is e m c or any other party proposed this claim construction to the panel in the kingdom way decision before that panel there were two claim constructors that issue one was whether the tank would be completely sealed which the court rejected and to conduct its claim construction was that the contents of the tank could not be released into the atmosphere for safety reasons and that's the exact argument i made to the pan and i have this of a transcript here so at that there are four senses e m c never made that argument before the king to my panel which decided to claim constructed in this case that argument is waived no the patent itself which is very important the patent itself specifically says that one producing oxidize q ten which claims twenty two and thirty three call for there is no need to prevent the redos q ten from an oxidation reaction the patent says that it's very clear right during the trial if you look at the transcript during the trial judge gilmore repeatedly told z m c that the claim construction it was telling the jury was incorrect and i'll give you some examples of that the jury on a claim construction upright here's the problem your honor yes the judge read the correct claim construction the correct words to the jury right that took all of seven seconds there  no way the jury could understand that the words that were being read to the jury were correct but the meaning of those words words were not the correct definition they refreeze they received from z and say you know that point when he read  when this happened did you object to that instruction right very good question your honor throughout the trial and konica continually objected to each time that the claim improper became clear instruct trial that it was futile to try to attempt to file a motion for a revised claim construction because of the what happened during the trial and i can give you some examples of what of how a judge gilmore understand it so it's a total and complete waste of time but knock yourself out essentially saying to c m c that even though you're using the incorrect claim construction you can continue to use on day seven of the trial dr taylor their expert testified that a seal tank had to be free of oxygen we objected and moved to strike the court the court denied the motion to strike and said to the jury he keeps doing it ladies and gentlemen the court will  the instructions on how the court will interpret the claim terms you're free to limit your briefs very nicely goes into the detail so i think your brief goes into the detail of this ok so i want to know what your thought is on the rise in case and why the district court's instruction that it gave to the jury which was the correct construction right and the other evidence in the case that was presented to the jury why that's not sufficient those terms the claim definition for those that's the ones that were complaining about we were complaining specifically about a claim terms that had been decided by the federal circuit which was the law of the case right  happened they never objected to the scope arguments during the trial we objected objected each time that the incorrect claim to have was was used and judge gilmore told  that the claim terms they were using were incorrect multiple times during the trial so it's not the claim term seal thing being read to the jury was incorrect there was no dispute from the beginning that there was that definition of seal thank meant it was clearly not infringement issue case haven't heard that southwestern gas pipeline twenty one said nd to ninety nine where the th circuit held in cases where the travel court had been presented with undisputed facts an disputed the question of the law were parties arguments on the question of law have been brought to the court's attention and where the court at the side of the question of law during the course of the trial we have not required the unsuccessful advocate to object to the jury charge to prove to preserve the issue for appellate review we have jacket throughout the trial listen to our objections in the night or motions to strike federal of evidence one of the three reaches the same conclusion that is why we didn't ask the court for a revised and jury instruction because it is under the general verdict rules to object that the definition that was given to the jury unsealed tank resulted in a legal error because that definition was incorrect under the general re cruel if there is a legal error on either seal tank or oxidizing there has to be a new trial if we can show that there was evidence under the correct claim construction for seal tank and oxidizing and we have that evidence let's look i understand exactly what you're saying about the correctness of the instruction yes initially i think in response to d judge  question very early in your argument you said that the instruction itself was correct but now you are saying well that the district court's instruction on this the seven nd instruction was correct now you're saying well it really wasn't correct because of everything that happened trial on listening it shouldn't been supplemented or what is right let me let me i just i can see that there is some confusion here so let me explain the cl construct and says the tanks contents must be preserved for prevented from because from exposure to the atmosphere that the claim construction set that meant and that's what i argued before the panel in the that that meant the contents could not be released into the atmosphere because the checks think their prayers were dangerous that's what judge gilmore decided that was the argument made before judge gilmore judge gilmore said correct it let me try it one more time if the claim construction says the tanks contents were p prevented from exposure to the atmosphere that man every argument in this case meant that the contents of the tank right the that the instruction was correct but it needed to be tweaked or supplemented by saying that what is meant by this instruction is that the vapors cannot be allowed to escape into the atmosphere and it does appear that i was wrong and thinking that that was what your are no i'm sorry your honor you are correct it means that if you correct and think they must cannot be allowed to escape into the atmosphere that and should have been added to the instruction is that your argument how can this this is not that well that's a simple question is that the words the words of the the words of the claim construction decided by the kingdom way panel can be can mean two different things and your argument i thought was that one of those two things is wrong and the other is right rather for the judge should have instructed the jury as to the right one and precluded them from concluding infringement or not in french but based on the other that's correct ok that's ok that's the answer to my question all right so and you're you're out of t was properly instructed the jury instructions were stipulated by both parties prior to trial and no party after they stipulated to the jury instructions ask the jury ask the district court to instruct the jury in a different fashion it was just from following its proper instructions this court rejected that argument and it applied horizon also in function media versus google to reject that argument and the reason the court gave in function media was to say if you allow this kind of argument it would mean that any jury trial in which whenever an attorney doesn't use the precise language that's ultimately used in the jury arguments in the course of their argument that would become a recipe for an appeal and reversal and that's not at all what this court allows and that kind of when i take it is that then that they've got the instruction to which they agree in and had they gotten to the point of the judge instructing the jury and feeling that they had felt that that instruction could have been misunderstood you it to cover the exposure of the contents to the atmosphere as opposed to the exposure of the atmosphere to the contents then they should have asked for a supplemental instruction clarifying that point which th would have gotten or not and the failure to ask constitutes i take it your argument is a waiver of the right to any such supplement instruction yes your honor that's precisely correct because if that's not the case any losing party to a jury verdict is always going to be able but they would have an argument is that they don't have to preserve for appeal their contention that over the course of trial something is changing the district court is obligated to modify or tweak a jury instruction from what the party agreed here  together they agreed on the jury instructions and no one asked the district court to instruct the jury in any way differently this court's aware there's a very strong presumption that juries follow their instructions that is really the backbone of the jury trial system that's how curative instruction point is that is an extraordinarily high standard for them to me to suggest that this kind of prejudicial jury statement the jury argument confuses the jury and is a reason to set aside a jury verdict in the context of a properly  constructed jury that the busa discretion standard is really its height here because the trial court has a front row seat to what's happening in the court and as as my friend read there were several instances in which there is the district court was carefully policing the parties and talking about each of the various incidents the konica described in their brief this is not a court that was asleep at the switch by any stretch the court was vigorous in forcing the claim construction throughout the case so there's certainly no basis to find that the district court of used its discretion in finding that there was no basis to have a new trial in the context of this particular case now i'll talk for a moment about the discussion konica raises about oxygen being into the tank and to talk about that both from a factual matter as to why that supports our theory of n infringement and nd their argument that they want to separate construction i think those arguments are are way for reasons just price and so i don't think that before the court but the court even thinks about addressing them st it is an appropriate theory of not infringement that we presented to the court if atmospher air enters the tank that is a basis to believe that it's not a sealed construction why is that the this court's construction of from the kingdom a case is a sealed tank is quote the tank that prevents the exposure of the tanks contents to the atmosphere if atmospheric the outside atmosphere enters the tank the tanks contents are not being protected from exposure to the atmosphere it's a very straightforward argument our evidence showed two things that stretched all of it both that the contents of the tank were escaping into the atmosphere that's the  distantly during the extraction step that there was an oxygen spike that there was a lower level of relative oxygen in the tank and at some point that oxygen level spiked up in the expert testimony as what was the cause of that spike the cause of the spike was atmospheric air we're in agreement with that if outside atmospheric air can enter the tank it's not a sealed hanke it's consistent with this court's construction further in the kingdom way case appendix page three thousand three hundred and eighty five connick argues the take misquote protect the contents of the tank from outside contamination atmospheric air can enter the tank then there is direct contamination and that is not a seal tank conic is argument now as they present in both their briefs and arguments today suggest that what is really an issue here is not a sealed tank but a safety tank and as long as the tank is maximizes operational safety that's the way in which it should be construed what was the nd thing was to the summary judgment briefing that you procedure to operate safely with atmospheric and air entering the tank that may well be true as a factual matter but that isn't a seal tank seal tank has a particular meaning and that was the meaning this court gave it in the kingdom we decision we set as a tank the prevent atmosphere that's a natural reading of seal tank and atmospheric air that enters the tank demonstrates that is not a sealed tank so then to go back to our product point again with respect to seal tank we have evidence going both directions both with the construction the conic and it's now willing to concede that if material is in the tank and it exits the tank that that that's not a sealed tank and we have lots of evidence of that alternatively if atmospheric air from outside answers the tank it's not a sealed tank we seen substantial evidence on that we have evidence on both of these theories both of which are well within this court's construction of a sealed tank but to go back to where i started at the end of the day this is a clear case in which the parties agreed to the jury instructions the jury was properly instructed there was never any objection to the nature of the jury instructions with respect to sealed tank or oxidizing the jury having had these proper instructions had very substantial evidence with which to now we throughout our brief i believe talked through each of the different incidences that kind of cut describes where they think that there was a particular issue kind of just raised two of the the particular issues that repeat throughout their briefs one is a sidebar court reached the broader context which we describe in our brief the c m c is arguments making very clear that is the argument about oxygen entering the tank and oxygen from outside the system entering the tank the argument was not that if there is the presence of any oxygen tank that's that's what  quote where judge gilmore described inconsistent testimony well i think there are at least two things notable about that passage the st is the court very clearly told the jury i the court will be instructing you as to what the law is judge gilmore repeated that throughout the trial and she repeated it twice in that particular passage the judge gilmore is telling her jury in this context i will tell you what the law and you will follow my instructions not the parties of course correct and there's nothing erroneous about that but the nd point is when the court looks at the broader passage there was no improper argument regarding claim construction in any stretch so we think that there was no inconsistent or wrong claim construction that was being argued there i'll turn to the utility cross appeal for just one moment if you choose to do so if you want to guess if the court of affirms in its hold the jury verdict we will stipulate that the cross appeal would be conditional in that event that the mc would be satisfied with informants of the jury trial that they do not infringe  improvement of a known muni fracturing process the utility analysis focuses on the output of the whole process or if it focuses on the improvement we think are very substantial reasons think it needs to focus on the improvement or else a non obvious but yet not useful limitation could have the effect of preempting an otherwise known manufacturing process whether or not this is a useful improvement it's certainly something not for the court that's the factual question that we think should be put to the jury or to the fact finder below so we certainly don't ask the court to decide that here i simply i take it that this seems to come up very infrequently and the only two cases that i did a case just from the for the creation of this court perhaps the reason for that is that if there is a particular the question here is maybe we'll have a category of cases in which it may be somebody that has used it for reasons but don't stop anyone but they've used it and they didn't bother to design around why i think that might be right your honor but i think the broader theoretical problems if you can identify in an obvious distinction and then pattern one by one by one in steps that would lead to the preemption of the otherwise known manufacturing process in a way that would be problematical at some point it would be problematic because you would get to a point in which you would have some theoretical utility in which case the utility argument goes away that's true your honor but then you're what you're really doing is just being a trap for the wary and at some point there might be utility argument and if they can identify what that is that we're fine with it but the proper point is they have to actually identify what the most percentage is that actually has utility and it can't be something that they're just randomly picked and then use that as a club to sue folks who are using known manufacturing processes and one of them are hitting what we believe is an irrelevant step or irrelevant most limitation and so that's why we think there should be utility analysis not maybe they can show that as a matter of fact that's not before the court the question is have they identified in the patent or anything else would be appropriate to look at a utility for that particular limitation we certainly don't think that they've done so it's a factual question again that we don't think before the court but the fundamental question is does the utility analysis apply in this context or does it apply just to the output of the process that it produces  co q ten and we think you know house has to be on the improvement that's consistent with all the courts section one hundred cases and subject matter area where the court looks to what the patent claims are directed to and we think that same kind of directed to analysis with a properly  apply in the context of section one i wanted and yet they really haven't been any cases from this court at all i guess on this issue right that's right and i don't think it's an issue that's going to come up with any frequency so i don't think this has any of the sorts of effects g is expensive and there's a higher rate of discovery of recovery i should say for the for the product which means that the it's making more reduce q ten st because it  what i just said to him i may have mentioned the wrong number going to page fifty four of our grief we we are reply brief you talk about utility yes you do but the question is do you make the argument that you're just now making about the utility and i don't recall that argument or the citation to dr aamer testimony as being part of that argument let me find it  contents from leaving for safety reasons judge gilmore that's what she said that and the court adopted judge your morals exact words therefore correct or not my belief was always that that's what the claim construction meant not to prevent oxygen from coming into the tank because the patent says there is no reason to do that when you're making oxidized to attend a bit and specifically say language and if you look i think you've made that point already and i i guess i did your honor ok here's your