you have asked for seven minutes on main argument and three minutes for rebuttals and correct for ok and then this to wilson you're you're representing a marathon not a marathon and a palace arguments and you want five minutes for rebuttal on your on your cross appeal that's front of him or i think we understand that the final thing i'll just note before we start the clock and let the organ of begin is the way the clock is going i have in front of me it's not said it twenty minutes it says seven so we can keep track of each each person's time i will let you know when does indicate that it gives examples of liquid coating but i don't read it is saying that a release coating is exclusively a liquid product being put on top i don't read any of the since we're focusing primarily on intrinsic evidence before we look to the extreme togetherness why don't we say that to district court determination that when they used coding they clearly meant the same thing at blair because they're using them interchange your public time why doesn't a violate to seventy one s to this court held in union carbide very clearly but that applies to process claims and non stable article of goods sold in the us for use elsewhere i made the judge made i think the judge made a comment about it had a dominant position he did and you're referring to the letter but it really didn't seem to be a lot of attention given any trust up is is that we are really in introduce that evidence at trial whatever i was guessing possibly not but the so that the judge still concluded that these were non staple articles of com or is that automatically a conclusion that there's commerce and has substantial not infringing uses is a question of fact that we review for clear error and it's hoped that i don't determine that it's their error so here's my question i'm trying to go back to this injunction because i mean i was troubled when really any need to modify the injunction because i'm with you if i were first the finding of contributory infringement on a clear injunction that modifies but if if we don't reverse the finding on contributory infringement seems to me that the language she use is not probably the language i would have chosen but i'm not be submitted and certainly the jury found contributory infringement of it and the jury was instructed as to the law of contributory infringement that that would require that the product be a non stable article of commerce with in placard or for the sandwich population policy or makes then clear it was appropriate for the judge to say you shouldn't be able to sell this item in the united states because you know what is going to be done that it has no other substantial not infringing use but what about the sellers to that when you sell it to a reseller who's not going to use it but then it's going to sell it outside the united states you didn't bring it to seven you want to claim did you we did not or honor and wonder expressed surprise at that the reason was that we only found out about sales but then doesn't that require us to modify the thing junction alternately because what the court has done in the words of this injunction is to prevent them from selling to people who would then sell for you to exclusively outside the united states which you have  admitted to us unequivocally does not infringe whether it does or doesn't you've said it doesn't and we should hold you to those statements judged on this decision to do that is expressed in her opinion and in part she she points out that it is much more likely to believe that people  buy something will use it where everybody in this particular case has a tremendous amount of difficulty in finding out the details are actual sales of these products and finding out how they refused because this is a that that happened situation and because the customers were the ones who ultimately infringed it was very difficult you know we met that burden but it was very difficult to trace each one of these plastic items and find out how it was going to be used just go on you believe that because there were no substantial not infringing uses in the united states the best way to protect the patent his rights would be to require that if someone to use it outside the just texas plant and then try and ship them across the border into mexico and we've used them down there we made it and that was the only foreign sale that was actually discussed but it a it was a large we made the point to the judge that if they don't like me easily simply arrange the purchase of these things directly to the button through its mexican subsidiary why did it have to be why should it be permitted to purchase it in texas and then ship it across the border the safe thing could be achieved by simply shipping the product to mexico and just going to order does not prohibit marathon from making these things and shipping them standard that came up at the last minute and we simply didn't give it consideration you're saying leaving aside whatever the law is you haven't charged we have not charged  me let me just ask you mr getting back to the injunction that you were discussing wouldn't it and i guess the injunction well it appears a number of places by and look at page two of the of the joint appendix and take for example the first paragraph under for the day says using within the united states the smart service placard or any products that are not color bleed different from the mean wouldn't it be a bit more i don't want to sound the suspender shifts here but would it make sense to just make it i mean that's what they're really can't do they can't use the smart placard too in connection with practicing the invention which is a method so why why would it not be appropriate to just revise the the injunction in that respect rather there is no use  really state what the law is that these things i mean what your client has is a method that apparently that it's a it's a profitable path and what they can do is use the placards in a way that would violate your right i mean it doesn't matter what others with it seems to be a correct statement of what their legal obligations are your honor statement in my view would be no different from what churchill i just said it would be accurate as a legal matter my concern is that you would suggest to an unsophisticated reader that well there must be all kinds of uses for these things that we can put them to a then now we're back to track again each individual user in arguing with them about the about the method patent and what it means it seems to me that having been forced to go through this  gather nothing here in the injunction and correct me if i'm wrong if you read different bars impala america from selling its teflon strips another sandwich that had other characteristics to it there's nothing though in the one thing i guess what i'm trying to get is nothing in the in the in the language of the injunction his far as i can tell and and correct me if i'm wrong there's nothing in the was found to be at issue here it could continue to sell its product without possibly running afoul of the injunctions are correct perhaps although again there's no alternative use found for that product either and it was shown that the product was specially made custom made it's a matter of fact that the s s piso your honour's asking you a hypothetical question if so if there should be some use in the future determine this injunction  i don't know what that use might be but this injunction would not stop that alternative use of some of them in the future if your honor and i see that i have a few minutes left i want to get into your process yes they you know me there seems to be a clear amount of evidence to support that conclusion really had no other defenses in this case they did their argument from that day forward and we try to track this in our brains and specificity was simply to say well it's going to be difficult for you to bring in witnesses you may not find one you may find it hard to track or we've sold all of our materials and so we're going to sit back and we need to prove your case well that's fine it was our duty and we did it went out and brought in the customers we have the testimony but it seems to me that in racing again is say no if you choose to take that care you're simply going to rely on the requirement that the plane to prove its case any would have no good faith defenses yourself left then you open yourself up to wolf blitzer now why didn't we bring a motion clear injunction right after the judge ruled the answer was that only week or two later we got the trial over and we knew from february we were going to trial in september determine that there's no welcome for him prior to the coin construction rolling your thing that as of the claim construction ruling it became clear then that they ranged and as a result from that exact moment in time litigation seems to be going in favor of the patentee from that point forward willfulness is going to kick in whereas when every litigation made you get or see an issue litigation goes like this right now they win some you win some a lot of time to go like this and so are we now going to jump right in the middle and try and figure out at what point in time they should have known your honor i have that question with a very big because when i read the receivers in august twenty it seemed to teach us that  we should look at the stand and whether there was an objective we based defense at the time of the trial at least those seem to be the words well they didn't know about all these defenses right that weren't tried at the time of the claim construction ruling namely their validity defenses and they're not infringement contentions and all those other things deny was rigid intentions that they had and i think that the fact that the judge was venice you realize don't you that even if we were to suggest that maybe as of the moment of the claim construction ruling they should have known they were on the hook for willfulness even if we were to suggest that we send it back to her and she has complete  nutter discretion to decide whether to multiply damages or award attorneys fees if you really think she's going to give them to you i mean come on she's she said she doesn't think they're bad guys she think they tried to design around she obviously let these other issues go to trial they weren't resolved on summary judgment so i think you would if you were looking for work i have an answer for that your honor i think judge gone was impressed by the sincerity of the defendants in their belief as incorrect as it was and she trial because that's what he held it was his a hearing at that time i stood up and invited summary judgment to be awarded against so that i could proceed to this court and challenge judge what was claimed instruction but i admitted to him that on the basis of the cla wilson you both went over time but we will restore your full rebuttal because you had a number of questions so sconce can you can go first you have your three minutes and i will give mr wilson his two minutes recognizing that she was going to deliver the ultimate questions of fact to the jury on instruction that they might well believe in she says so she didn't dig the credibility of those witnesses she didn't diminish what they said they were or enough in her calculus and she became worried that if she gave the jury the job that she fully intended to give them without changing her instructions they would not be able to find  was practicing the method for decades before we ever came up with the proof product the customer came to us to buy something that worked better that wasn't so substantially permanently folks that run all over the world and became a pain in the in the process to take all they came looking for us we did not induce delphi in the traditional sense to buy our product and replace the kind of what happened with everyone else that the jury put in their verdict they wanted to write a paragraph i don't know because there was no clear evidence as what those is concerned the members of the panel will now step down and a new panel