methodology was treated as confidential and in order to try to be faithful to maintaining the confidentiality of what their consultant had done we felt it was necessary to mark that is confidential and and the board needs to understand that the fact that things are marked confidential in the district court doesn't mean that when you make a legal arguments that don't for example the pro compelled to recognize that there's really a public knowledge assumption here that the public really has a right to know that also we are very sensitive i appreciate that she's just a person just like i appreciate the point of this the youth made him completely understand them again we were just attempting to preserve the confidentiality of the arguments that have been made by cyrus consulting but i take the court's point and we're happy to confer with them and to submit versions in which particularly the material that you get in a fight has been on re series of legal errors by awarding royalties which would first use multi component in products rather than ships as a royalty base so i can use the panties and accept that offer rather than the real world license between these parties as the starting point for the rate and third rejected the very adjustments to their rate that the score specifically required in erickson to account for standardization the damages awarded us inconsistent with this court's decisions informatics and erickson was the district court did not have the benefit of at the time  it was writing its opinion as well as later dynamics and you know why when i started with the final point you made about standardization because it was kind of confusing to me about what was happening here there's no grand commitment with respect to the sixty nine patch right now that's there's no dispute that there was no rand commitment there was ultimately made there was certainly representation to the community which explains part of why it was that well i understand that so in the absence of a round commitment i mean ericsson and other cases have referred to what happens when there's the value attributable to standardization one of the question part two is how does it do that i mean judge davis here did refer to it and several portions of his opinion seem to try to at least account for the standard precise welt with respect to the second decreasing or he found that the factors eight nine and ten all favored an upward adjustment where is ericsson to convert to your first question just press ericsson specifically service and this is at twelve thirty one of the opinion that factors eight nine and ten need to be adjusted patents generally and not just for rand encumbered patents and the reason for that is because when you have walk in the factors like eight nine and ten no longer makes firms the way that they do outside of standardization use experts to determine what the differential is between the value because of standardization and not welfare or solidifies a number of ways that the court could potentially take that into account in court including looking to things that happen pre standard as a nation and here's  the market had changed in ericsson so you maybe even need to adjust the time of the hypothetical negotiation to take into account the effects of standardization and here it was a virtue not a vice that the t l a predated standardization  factors in deciding that the two that he didn't view the t l a the comparable license and in determining that cisco's damages model wasn't reliable but he also said at page eight twenty three of his opinion that quote the primary problem with cisco's damages model was it uses chips rather than in products as the basis and that of course is a legal error and i understand now with respect to that one of the what about what about what about the suggestion that the rates were distorted because there was other compensation going to come out so of a few points on that first by the time that the t l a was of course amended such that you no longer had radiata as a party but you actually had cisco as a party number of amendments took place that eight nine forty seven which our expert used along with another and another piece of data the mcquarrie settlement between cyro and the core university on how to apportion out what was attributable to the and what was life and that was discussed by our expert mr mr big well and some of that's reflected at age thirteen fifty six and thirteen seventy eight among other places so yes there is absolutely no attempted to take that into account this is just chip prices but that's rate and the numbers themselves at the at the earlier period of time were not that significantly different from the award here the difference is that if you then a percentages to decry declining to price it gets you a far lower number right well that's certainly true and i do think that there's a problem here fundamentally when you have a district court that uses the end product as the base as opposed to three this court has rejected the notion of using offers as a starting point precisely because they were to quote a stablish phrase i think those concerns are presented here and with respect to one of the questions that she just crossed asked a few minutes ago i think it's important to also understand that the parties at the time of the hypothetical edition absolutely knew that ship prices were anticipating to decline that was in the scale and letter itself a twelve sixty one that chip prices would eventually become a commodity cyrus expert conceded a five fourteen that chip prices would have been expected to decline the primary problem because i don't question that precisely why the district court looked at the chip and decided it wasn't a proper reflection of a good base value because it was wasn't going to reflect the value of the patent because the chip prices don't reflect of all that i mean you can disagree about where they start there's a lot of evidence going both ways here but the district court made some pretty specific findings on this and considered your arguments and rejected them and found that not only was the ship not the proper base it found that it tried to separate out the standardization from the patent value when it looked and said not only even though this is incorporate in the standard what's driving the success of this is the technology not just the standardization i mean there are there are also in the district court's opinion i understand is a very complicated thing here but basis for the district court affectively using the entire market value if you're going to use the entire market value you've got to have the factual findings of the entire market value rule requires they didn't argue sorry didn't argue that the entire market value rule applied in the district court didn't purport to find it applied but nonetheless he is going to find the basis quote the revenue pool implicated by the infringement and says i'm going to use the revenue pool for any product and then if the rate is going to be quote the percentage of that pool adequate to compensate the plaintiff for infringement implicated if you don't have a jury present and in fact that wouldn't make sense at all gerritsen nobody ever talks about apportionment being the key it sort of drifts away from entire market value which just has a value because of the evidence her erikson requires he gives them the benefit of standardization but ultimately the premises later dynamics and for medics and the whole point of apportionment is to get down to the component that the market has and has put a value on it a component that actually practices what inventive about the patent because presumably that is going to be the best way of being able to determine what the value of the invention is why don't you know because we do not ignore negotiation from license between the parties that good reasons for which he did it he said those prices don't properly reflect the value of the path it seems like that's ok and we can go with that the problem here seems to be that his his separating out the standardization value is a little suspect and i don't understand why you keep going back to the first point because what you should be arguing is he didn't apportion properly but i don't see any reversible error in him deciding not to start i absolutely agree that apportionment here is the fundamental problem and it's a fundamental problem for all the reasons that you just articulated it's a fundamental problem here because it failed to account for the effects of standardization respectfully i think it also is a records reasoning any one of which requires remit and the ferry to apportion to take into account standardization by itself requires a renewed year and reconsideration of the damages award i'm just saying that there are additional reasons  do that and i think that's where we're having problems but number one the district court found that this was that this patent covers the core of the standard so we're not talking about a minor feature where we're worried about sarah being in the right place  found that the the what if that were too much standardisation here and whenever an impact attributable to the standardization so how does that account for what he found that this happened was responsible for the success calculation what you wanted he didn't walk through georgia pacific eight nine ten and thirteen and he did talk about the value that this technology added to it and i think we should be mindful about what about the standardization i mean look at page twenty six his opinion have the benefit of erickson when he wrote this opinion but in the wyatt earp some how can this be sustained when he failed to script that but he didn't have the benefit of harris and so i think that we need to do a little bit of the work and go into what he said to find where he said what can be what value this patent added to the standard versus what value the standard added to the  he didn't say very much this is your problem i mean i'm looking at its opinion and looking at the factors nine and ten which is i think where you account for it in nowhere that in a paragraph starting at the bottom of a twenty eight twenty summit if when you went to the top of a twenty nine twenty eight of the opinion that paragraph doesn't even start to suggest that there should be an apportionment for the standardization versus the improvement of the technology it talks about the improvements of the technology but it is nowhere said that we have to consider an adjustment for standardization in fact again he does the exact opposite and says these favor an upward adjustment isn't that precisely wrong technology he didn't explain why the memory of lie down considered whether to get the part of border town i think we have that there are some unique factors here that first of all let me answer your earlier question about whether that if the record as a whole supports its conclusions i mean he's not required to cite every had to make a conclusion again we're in this opinion to make a conclusion that the value here is attributable to the but i don't want to hold you know i don't find it there i think let's let's assume hypothetically this time correct that they didn't have the ability i'm apparently ability to terminate it really under those circumstances doesn't the fact that the an inventor was one of the founders of the times is a menace to clients that there was a close relationship it was cisco well number two the development proceedings i think that is actually the development of our i think that is actually the most important requirement siren didn't enter into this agreement with the hopes that this was going to be the end all be all of every revenue stream that it would ever get it entered into this agreement in order to establish the commercial viability of its product and that's a very important thing this is how research institutions and universities around the world every day get their technology that they developed in the laboratory suggesting to us the risk compensation apart from the world  going from ronnie to arnold palmer correct yes absolutely and the testimony from sarah's witnesses were that that was actually more important to them in fact they had an incentive to keep the royalty low because they wanted to viability of this technology by developing the product from the laboratory into the commercial space and then others have happened point two thousand and one in two thousand and three by two thousand and one two thousand and three it was it was still in the process of happening iraq issue of the entire market value of this small stillborn and certainly if you look at our case law in totality over the last decade the movement has been away from the entire market value in the absence of as your friend said of evidence of driver of demand for the end product and certainly towards the smallest salable you know why on that basis shouldn't we be at least suspicious of the district court failure to adhere to any of those on licensing evidence and tired to rely on the analytical method among a handful of other things the district court was presented with at least four options of how it might start as a reasonable certainly the smallest syllable yet and that seems consistent with the overall theme of the cases which is we need to do an appropriate apportionment analysis and the smallest civil unit is consistent with that right yes there are and that's why we up with a number of which is related to the cost of the end product no he ended up with a number that was consistent regardless of the price of the end product whether it was one of cisco's thousand dollar routers and he ended up with a relative that had no relation in go up or down at all with with the price of the end product he started with what he found was cisco's zero one the best reflection of two thousand and four with the adoption of enough to eleven g and i think that this may help us with the with the standard aviation problems at the time when the actually adopted is eleven g which is really when the market exploded it had an option it not but i do i do want to say that at the time of the hypothetical negotiation in two thousand and two in two thousand and three i actually had the option of going with non infringing technology was standardization this absolutely is a case of lock in at the time of the issue to the lebanese theater you had a representation that was being made in the industry that they would make a rant commitment and they ultimately didn't follow through on that but that helps to that's just one of the bases for terminating the agreement in fact an alternative basis is it supposes or part of its efforts which is what happened with the transfer of the system that's right just like and with respect to some of the other district court findings that related to this the whole issue of widespread infringement the only thing the different courts face in your finding in the record is eighty three ninety five there's no evidence whatsoever no evidence whatsoever that there was widespread infringement at the time of the hypothetical negotiation and in fact hypothetical negotiation and was indeed amended contemporaneous with the hypothetical negotiation was of course the t l a self and setting all that aside the district court committed a real error in relying on the siren record because that did depend on the twenty five percent rule of thumb that this court specifically rejected in uniloc the district court didn't grapple with that at all and if this court's going to give guidance for a man who would be helpful to have guidance that that impermissible that you can't get in through the back door which you can't bring in the front door they just report rejected cyrus expert for many of the reasons for many of the same things that cyrus consultant did in crafting the race card in the first instance the court has other questions received over my time and thank you very much thank you we thank all