that runners were here today because of the mental error made by the district court in connection with the construction started the claim construction of the claims that issues in the lawsuit that much on the record to correct what occurred to us even though the cards had vigorously litigated the issue of whether there was a limitation in the method steps addition which required that the steps be performed in a certain sequence notwithstanding the fact that the court in its claim construction recognized that that sequence was a petition that there was a required sequence and notwithstanding the fact that there was one instruction that addressed that sequence in a critical instruction which was given to the jury on how the jury could determine whether there was infringement on the doctrine of equivalence which was the only infringement issue in the case the jury was told it could it seems to me that your hurdle the road you have to cross to get by the teary instructions which are granted or can you think perhaps some places or whatever but that's a pretty high hurdle so i guess at bottom why didn't you ask for j paul and make the i argument that means underlie what you're saying about the jury instruction well time your honor it doesn't underlie it it's a different argument because this goes to the fundamental question of the respective roles of the court and the jury when a jury is told and this is are zero zero seven two if you find the steps must be performed in a sequence that was an instruction to the jury which was objected to the jury was told it could decide whether there was that limitation that's it that is a fundamental error in jury instructions but there are other places in the i mean the jury can go on and on and on and there are other places in the jury instruction are there not where it was jury how it should decide whether there is infringement under the doctrine of equivalence so even if there were instructions and there were that talk about sequence being a limitation the jury was told ok the issue on whether this instruction is prejudicial as could was there evidence before the jury from which it could have the side there was no infringement under the doctrine of equivalence and art resubmitted there was because the jury is being told if you look at the language of of instruction twenty eight it's a it's and legal argument about whether sequence is a limitation in fact it's a legal argument lifted right out of your curious case because it says to the jury i impossible to perform the steps described in the claims without performing them in the sequence as written the moken play poker must be played in that order where it's possible to perform a step before during or simultaneously with another staff that's a legal argument there was a required sequence and here's what this court said the patent teeth argued the steps can occur before after or simultaneously with or between any of the other steps that's a legal argument that was for the court to determine the court can't suggest to the jury that suggest instructed the jury you can decide you decide whether there is a required sequence that's given to the jury something that's exclusively within the province of the court it is the most fundamental instruction or one of the most fundamental that can occur when that happens the jury got a claim construction instructions but this is the infringement instruction this is it this is what should we do how do we decide whether this infringement what if the court tell us the court told us we can decide we can the side in the first instance whether sequence is required in order to determine whether there's infringement that's the fundamental or that's got a g m a well issued that is an issue of fundamental prejudicial error in a jury instruction it was raised in our memorandum submitted  opposition to this instruction we specifically advice that order to give this instruction would result in the jury being given the opportunity to construe claims that's what happened and what should've happened was the jury should not have been given this instruction and the jury certainly could have decided there was no infringement under the doctrine of equivalence based upon the evidence before the jury that's the test for prejudice this was objected to this was inconsistent with substantial justice you can't say to the jury sure there are others required steps i told you what the claims mean and then say to the jury by the way now i'm i'm going to tell you what you do want to frenchmen and what you don't infringement is you can decide issue it's an issue of was this instruction itself resulting in prejudice with that erroneous and it was in the fact your honor that there were other instructions they deal with construing the claims this deals repeatedly we suggested to the judge we are the judge they will get up and they will tell the jury sequence is not a requirement and that's exactly what happened in the context of arguing about why that was infringement of the doct infringement that's a court requirement let me just briefly touch on several other issues that we raised but that is a fundamental one another characteristic of these claims was the dependency characteristic which we discussed which essentially is that the require it depends on between the card selected to be held in one hand and the cards duplicated in two or also held in the other hands and what that means is and the argument to the jury was and the evidence submitted could have allowed the infringement and we strenuously argued to the court that that limitation needed to be in the instructions of the claim construction instructions all three claims and what happened was in the detail the jury there can't be different claim constructions for docking of the quince as opposed to literal infringement and the court did not give us those instructions as to two of the claims and what happened was we put this in a reply to explain it even more after a lot of argument the court cut off the argument and said to counsel that's it we're done this instruction is out we're finished so the notion of any waiver or any failure to raise which is a hypothetical we creation of what would have happened if there was no infringing method and therefore knowable to play poker well yes it's true and if there can be a latitude in explaining what would happen in the but for world there has to be some grounded reality that's not completely speculative as to this but for the world and what happened in this case was the plaintiff's expert hypothesize an analysis based completely soley its l what would have happened state why there's nothing in the record nothing that supports any inference any bassists that what would have happened in a statewide basis had any relationship to the real world real world was as a testimony was that what occurred that occurred on the basis of every location it was not a state wide analysis there's got to be some limit to the buck for world some outer limits of constraints and that's something anyway there's no evidence to support th because because you've got to look at the jury instructions as a whole now but look pick my hypothetical let's assume it was absolutely i mean did they say that it ten times that it with clear that the jury instruction did this allowing the jury to iraq i mean instruction over twenty four says it is a duty to it is my duty to interpret the patent so before we even get to instruction twenty eight the judge is telling a jury it's m when you get to twenty nine in this case the court has determined as a matter of law the plain language requires a sequence might do it if the courts do it you go to thirty six now and i have instructed you generally bapa law that you must follow on deciding whether the defendants infringe one of more plaintiff's patents it is time for me to instruct you specifically about the meaning of the claim elements at issue in this case and what follows basically those eight elements is exactly what the market order was there's also an indication of some additional things if you if you look at number seven the also whole limitation this is an eighty one the also hold limitation of claim one c of  six six pit requires holding all of those rules those cards selected to be held in one row therefore there is an inherent dependency they got that instruction they wanted the complaint here is they didn't get it with respect to the other two clients three's the claim through the eight seven three and they claim three of those six six think got the inherent depends in still lost they still lost if you look at the next page eighty two it says it is apparent from the pla language of the claims that a sequence exists there was no objection to this instruction not because they lost the case or sing hold on hold on to something wrong with the instructions if you look  instructions what's happening here is the court is trying to explain a little bit of up happen last so the jury has a context what they're about that the side twenty eight does that very thing it's talking about things you got to balance that it invalidates the theory determination i don't believe so i think because because later on in twenty nine the very next instruction twenty nine what's it say it talks about i find the sequence to be the dealing selecting and duplicating or whole to be sequential in thirty and thirty six if you plan to destruction it talks about the indication in thirty six instruction thirty six which is the piece de resistance in terms of the final climbs since the dealing limitation and so on so the selecting parts meat sauce so i believe there's inherent dependency with respect to was the sequence we don't know with the jury find it was insubstantial difference in terms of the sequence steps all we know is that the jury found that there was infringement on the doctrine of quibbles and there was no it was an insubstantial difference between duplicating the the claims of those words around except if you look at the claim one c of all six six the also hell language is kind of like the auto whole it's what it's talking about but keep in mind and i think it might be instructive for me to tell you a little bit about  to play poker works basically what happens when you hit the deal draw but in the beginning you'll have say three hands all face up with suggested holes the computer makes is just a holes it's up to the player to decide whether to select the holes or not select the holes the evidence was that some ninety percent of the people play it that way they adopt the holes because that's the optimum way of playing the game so they hit the all draw of our motion for summary judgment and that's what we're appealing for for we're feeling from apartment we're feeling from the fact that we believe with the auto whole future off the what happens when you give your scenario you have th push all the way down and see those ones i want to hole if you do that our position is that in fact there's infringement so it was it was wrong for the judge to deny or most for summary judgment on that basis that's what we're feeling from so that's  our machines are put in taverns and convenience stores gas stations places where we could possibly begin to monitor it and that's what we're really concerned about you say because the instructions and imply that you're talking about let me ask you when you describe the system you said ok we've got the auto hold on you you know you can go two to two and hold them but if that not being automatically duplicated that's something that manually someone ha in our cross appeal papers as an example of a seven or one all we submitted a statement of fact this of the following question and he can make that whole selection by pressing the hands because that's the optimum way of playing if they made the decision in their own mind i want the ace in the chain because those are the two high cards that they just swipe done the king they don't very few people ever decide they're going to try to beat the not with respect to sequencing and here the pain is we believe that the judge put enough information in there by sequencing an inherent dependency that was consistent with his mark in the ring and also gave the jury enough instruction thirty six on the zero six six so were the prejudicial air it would be reasonable to assume that even if the inherent dependency were crafted on the seven three plain three and the zero six six claim three that they would have lost because they lost they lost on the all six six bet which had that but as i said before they did not appeal the claim construction now they're trying to take issues with you didn't put enough in the cla instruction we think they waive the right to object we cited references in our brief to that effect be appealing party have one with the proper jury instructions we addressed this extensively in that brief it's not an issue of what would have happened it's could we have won and we explain factually and legally why the jury probably instructed jury that sequence is required that's true but there are only two instructions to do and how do you decide whether there's an infringement and one of them tells them the first one that deals with how do we decide tells them directly you can decide whether sequence is a requirement so whether there are other instructions that explain what the claims mean and no matter how many times the judge said i term and what the claims mean what the jur told was you determine when you decide the issue of infringement whether you think that limitation is there that's one it's a fundamental plain error and we can't interview the juror to determine what they did but it's very clear that all the cases we cited for the test for prejudice could we have won if the jury wasn't told you decide whether there's a sequence the answer is yes we could have won because it was evidence there such that the jury could have and in the record study pages twenty five fifty five for the next twenty pages there's a colloquy with the court about you can't give this instruction you can't have the jury decide whether sequence is a requirement it's inconsistent with workman it's inconsistent  court's obligation so this wasn't waived it was asserted i'm hunting around for other instructions to cure that kind of fundamental defect doesn't work now this is not an in artful instruction it's completely wrong find if if i'm a jerk and i want to know what do i do about sequence doesn't i heard counsel for the plaintiff say sequence doesn't matter mr gabriel is misleading that was closing  now i'm in the jury room and i look at these two instructions and i think let's see well you know what i can decide the claims don't have to be performed in or in that order she was already after the question your time's expired the answer is my