where we believe that the district court really erred by saying hey well that was your device it's your responsibility tell us where it's from but at the end of the day why why is that a square because it's just that shifts the burden directly it's  the burden it's your device it's our device true but you know when we actually this point we do not know whether i mean this was i believe it was two thousand and two thousand and six the records were lost and then they were in your where you know posix asked for it first inference because we asked them and then we didn't have this information this was a thing where the where there wasn't even there is no corroboration they just decided that it was available on the state what's the story on this chinese document referenced as exhibit seven hundred fifty eight i gather not it made it into evidence the i so i had my recollection is that there was theoretically some documents we don't know that it's outside of the record and i believe it's improper for the court to consider that and it's still not that so i did in the appendix notwithstanding that it wasn't before the jury it wasn't before the lower court at all and it's really a part of you know  firmware created in two thousand and six he couldn't identify a month i mean the cross examination blew my mind i thought it was actually quite a bold choice given that he had been given a day in direct to get to ask him a series of questions which could have allowed him then to correct his earlier mistake but he didn't he didn't quite this early mistake yes or no do you know what month nope yes or no do you know what day nope and so there it stood after cross examination and i was baffled and redirect how they didn't stand up and rehabilitate him and have him provide a month or a day if he knew of one then i mean because you guys had telegraphed it really clear after that cross examination that you were challenging whether or not this was prior art and yet you didn't do it so to be honest i think that you you sold your case a little short when you say maybe this document could have corroborated there was no testimony to corroborate that that's that's true that's true and the preparation you saying that and we did  point for the district judge that the tape was was just simply not not there but going back to infringement if you don't mind i'd like to ask you where it is that you've raised with the lower court see here's my problem my problem is you have a scenario here which as well as you did on into patient you did equally poorly on infringement i'm just going to be blunt with you you have a scenario in which you have what are clearly dueling claim constructions being validity and infringement you've got an expert on the other side going through respect and prosecution history i fell off my chair when i was reading all of that because it's completely improper but you allowed all of that to go to the jury the markman says that should all be done by the judge what the plain ordinary meaning you should be decided by the judge it may be a fact rushing but it should be decided by the judge but you didn't object to it you allowed it to go to the jury and now that you lost the jury verdict you're complaining about the fact that it happened and that's the problem for me is that you don't get to do that the judge is exactly right you never raise those objections at any point in time which would have allowed him to avoid this mistake which is dueling claim constructions being presented to a jury and a jury deciding whether it but the problem for you is the claim construction was plain and ordinary meaning and your argument is that his testimony doesn't comport with what the plain and ordinary meaning should be and what you acknowledge is there's apparently two different or understandings of the plain nor narrow meaning and your real issue is the district court said when they rejected unit classes kind of destruction of the hearing that they're trying to insert the word direct in there and that the the plain ordinary meaning should be broader than that problem is there was no instruction given to the jury but the plain ordinary meaning of connected is broader than just a direct connection and you knew that after the testimony you wrote it up very well for us on appeal but you didn't object to it or present it to the court and so my problem is hey i think you're i think that's one thing and on the other side if we're just looking at jamie there's no obligation necessarily to object to an expert giving an interpretation that we believe is unreasonable there's really no basis for us t you can go to the court and say this is an issue of claim interpretation that that they're trying to present fact expert testimony your expert opinion on and that's not the role of the expert that has to go to the court you can and should that's i think that's actually the only way that word now and he doesn't even actually use the word priority does it so he just says that he actually says it was invented on july twenty fourth two thousand success not actually correct either as it wasn't we don't have any information in this record about precisely when it was we have the file and it yes so that's the file and if that's not what it was invented so your non lawyer expert made a number of statements but what he doesn't say is that i understood this to be the critical date and i understood that everything i looked at in order to be prior art had to be before that date that's not surprising it's not a lawyer it's cracked correct so he has a confusing testimony about dates of invention and then he says this came out in two thousand and six thus it is prior art not everything in two thousand and six is going to be prior art when the critical dat july twenty fourth so i don't see where it's clear to me that this expert understood that it had to be prior to july twenty fourth two thousand and six for him to consider this prior  and then he says indeed it is a little sooner than this would be a year earlier or july twenty fourth two thousand and six but what bothers me is what what bothers judge moore ok i accept all except that he he uses the words prior art right and he had looked at the way back machine and found the specific date of the last update which was july fourth two thousand and six prior to the critical words that july fourth you know for reference and i think you mentioned that yeah i'd like to significance to the silence on the specifics from the other side what legal authority i don't remember seeing a citation of legal authority for something that certainly can be true in some circumstances right silence can sometimes speak but hear what words with legal authority you have to offer for giving anough weight to the absence of information from the other side that might allow the jury to find your side to have made it clear and convincing evidence berg by silence i don't have a case by corroboration using all of the facts that were in the record at the time which included a tense one user manual that the c e o of a ten testified had been released in two thousand and four the testimony of the witnesses and his own recollection in this case as to any type of prior art product that would have been in terms of product did you get anything or any objection saying we don't have that sort of there were standard objections given going to apply he's going to instruct the jury to use the plainly of the term do you think it's appropriate for both parties to put on dual experts that offer different things meanings and for that inquiry then to go to a jury as to which of those two play meanings the jury should credit for infringement analysis it's a question of law i'm not saying that's what happened in this case i'm asking you is it your view or understanding that the law of permits the jury to decide what the plainly should be in a scenario where two experts testified to different plain meaning as a matter of law it is the court's duty to construe claims and so if two expert jury and for a jury a figure that out of one infringement is for the jury to determine and a view of the plain ordinary meanest one of skill one of ordinary skill in the art is proper for experts to testify on including intrinsic evidence were quite ready not so much decided by the court correct if there is dispute as to claim scope that should be decided by the court the one exception would be it is acceptable for the specification and the prosecution history especially it was more to me quite frankly more offensive and look if they don't object this time them but it was more offensive in that detecting scenario that it was in the connecting during trial why is something like this going to the jury well the fact witnesses were testifying as to what it meant to detect occupation of a cable in for example in the tos device and  you know classes chief engineer testified that sending messages not detecting a cable as a matter of fact which is different than the claimed scope which would be a matter of law and i believe this  is exactly what judge guilford was talking about when he said i needed to let the testimony play out to see if there was any kind of a problem that could prejudice the ultimate result that the that the jury came to and he said i find the problem here he was able to reconcile that for w far in that it was telling the jury how to construe the claims and then the problem was on them because they didn't raise it at least with regard to infringement they may have raised it with regard to invalidity but they didn't raise it with regard to infringement is that your understanding  not from mr does melich again trying to confuse you and of quote they created their own qualifying jury instruction in that closing statement they told the jury don't rely on any construction other than the courts the clearly knew that this was an issue they actually suggesting there is no ultimate prejudice by what occurred because they explained to the jury not to rely on it i don't think that would cure actual problem if there were one i think the court would be obligated to cure it yes it does do two things so it shows that they were on express notice of the issue and should've raised if they truly thought it was an issue but it also shows that they weren't that worried about it because on till they last until the last day but they were worried about it in respect to invalidity in which i'm but first off to answer the question about the man for all three if you look at appendix page ninety three zero three there's some testimony on the date of the manual in two thousand and four but also just really like at that exact page gave rise to that question that the fact that the court was if they said would you call the supposed testimony dabur hearing on appendix page ninety one thirty one and considering on the ninety one thirty two the court said there's nothing wrong with that as far as i'm concerned i'm just wondering and i believe that gives at least some reason why our objections were made a little bit later  does help help help with that thank you well i'd also just like to point out if we kind of put ourselves in a world where no objection was made at all or if you assume that that six and this court said that under such circumstances the question for the trial court was limited to whether substantial evidence supports the jury's verdict under the issue construction of the issue construction being put in or no meaning there and then in that case the court looks to whether or not it was reasonable for the jury to interpret it in a specific manner and then finally i would just like to point out  occupation of the port by a cable without necessarily detecting the flow of messages and we take that to be a concession that although it's physical occupational must be detected that particular is not excluded under their interpretation and the following that it is we believe that the admission that master slave status is determined