relating with infringement which said in order you said essentially nothing in terms of explaining how the expert reached his conclusions as to where there was infringement in full effect the expert check the boxes on you leave to take time to examine the expert after the make the point before the trial continued now not before the trial continue the judge said he would give me extra time if i wanted but he was not well for him to stop the trial the trial was going to continue while he was offering to do was to say i'll give you more time you can cross examine him at a later point in the trial we're talking about the amended report that was found out that your receipt the day before but how about the initial america should not be permitted to testify based on a report of that nature we felt that it was not our job to pull teeth from an expert and find out what his theories are and then any event the the new theory we didn't get  until the night before he testified and the pretext of that was that it was based on the court's claim construction which occurred i believe seventeen days before the trial so having taken his deposition it's almost inconceivable that we would have expert that was all you offered to do and we were told that the expert had to leave within one day and so in essence we had twenty four hours with three or four other witnesses testifying at the trial while this was going on so happy you had more time what difference would it have made well that was why we didn't really ask we didn't take the court up on his offer of a time we felt that having now seen what his testimony was we felt best shot was to try to neutralize him as best we could on course examination and we believe in fact we did it as i would like to explain if i can move on to that issue really trying to understand why they are telling us that things were so seriously unfair that everything should be wiped out that they they were and they were they why are that unfair and it was sandbagging unless this court concludes that we successfully demonstrated that there was no infringement on the cross that we had basically an hour to prepare for i believe we did i believe we succeeded in doing that as i would like to go into but it was the worst kind of  expert report literally sometime around eleven pm on the night before he testified which was the first time he explained this entire theory that became the focus of his direct testimony we should have had that daley's weeks if not months earlier it's just simply not enough and a patent infringement case having some complexity to expect counsel in the middle of trial to try to digest a brand new expert report and and and simply go ahead on the issue of infringement itself the three claims and whether claims or three patents were directed to methods and each independent claim of the one ninety one in five five on patents which together accounted for ninety four percent of the damage physical structure of the wire basket in the specification which everyone agreed was a single s shaped wire as contrasted with a basket made of three to six wires now the only possible source of evidence came from this expert we've talked about dr crouch he admitted as he had to that the s shape wire is not obviously not the basque and then he conceded that it only becomes a wire basket or the equivalent when it is rotated the problem is that the cleaning requires that of being wire basket at will times let it have the structure that's equivalent to a wire basket was hasn't let me as i design understand and on the specification we cited a case i believe in a reply brief to that effect and that these are really separate amenities but the things i think it is important is in the dead it's we said the statutory equivalence analysis requires a determination whether t he way the cues divide us performs the claimed function and the result of that performance is substantially different from the way the corresponding structure in the pad operates so it does seem valjean did have some testimony on that which you know a jury could accept i feel it your honor is saying and again i have to go back to the fact that we have to look at the the claims which are element the introducing is a step of the coin which they chose to make a step of the claim and it's an important step you're saying it has to be like a cage or a basket when it's introduced yes let me ask you what what do you see is involved in the deploying step when we have there seem to be three phases of this operation against the device when it's inside the she will say then there's deployment then there's rotation right right what do you see is involved in deployment the deployment as i understand it in the specification is the withdrawing of the sheath which allows the that we ask it to spring into position we believe will there the dependent claims have basically trivial well known features but i would i would like to move on if i can i see my time is dwindling to the second limitation which is expands to conform to the shape of before i leave it though i do want to mention the issue of prosecution history of stoppel it was never addressed by the district court we did submit a motion on it at the close of evidence as we got it in there but i didn't and i know you make that argument  out there raising which the presentation before the journey was inadequate or if you're asking us to make fresh findings or consider matters that were presented o know were not presented to the jury well the issue of prosecution history stop oh my colleagues are on the other at the other table contend that that would that should have been a jury or should we should have sort of instruction on that but you're saying that it was the stop of and only a stop and really believe this court can the estoppel is a legal issue which of course this court is certainly capable of addressing it's been fully briefed the evidence is in the appendix the evidence that we relied upon and  summary judgment early in the case the district court denied it we in that motion we invited the district court to construe the claims at that point the district court opted not to do that and therefore basically said well the claims have not been construed so have also our had he considered on the merits the motion we made before the jury retired he could have rendered judgment in our favor at that time and dismissed the jury but i think as most practical and many practical judges  believe is the white right way to go is in case they that it turns out they're wrong in case this court decides they should to are granted judgment at that point they let the case go to the jury with the understanding that the issue can be renewed after trial and of course of the of the inner limit and what that means is if as a crude representation of my fingers represent of five wires of a basket it's expanding and it conforms to the walls of the inner woman and has to remain in contact where my left fingers are in the middle of my fingers or my right thinkers are in this case with dr rajiv admitted that there was only the problem and only made contact at two points and affirmative evidence of culpable in terms and given the substantial evidence of the opposite thereof we believe the court should have granted jamel well on that issue as well such actions are sort of a standard housekeeping question standard question i always want to get squared away so the moment we were to rule in your fame or on means arrangement issue is your position that we would still have to get seen equitable conduct and the validity issues as i think you ha them in there is a counter claim so if we were to rule in your favor on the on the on the infringement issue would you still want us to get to the next will conduct and the  theory your honour's would be you know obliged to pursue it but if if we were exonerated from infringement it would make a great deal of difference to my client if these claims were declared invalid and if they were t was complied with all the rules that was it was wasn't just check off the boxes he did he compared the device to the claims he looked at the instructions for use he talked about tests that he had done and yellin and i go back theory it was it in most it was a new analogy if you read the briefs he talks about a quirk through theory it's really just an analogy we gave a full report before a claim construction that talked about the s curve and it response letting them know that we were going to present evidence based on the new claim construction they didn't take any action with respect to that at all so we told them we were going to do it and then they had their motion  which proctor apsley thought they were going to win and get the whole report thrown out and the judge denied their motion in limine a but the judge record nies that the thing he had just two weeks before he had done it issues claim construction ruling and  obviously the earlier report could not have reflected that so he said do you are you prepared to supplement the report you said yes we are and we did it that night now the judge gave them time  have more time to prepare your crops and they didn't take it and we're hearing today that they told the judge they wanted rebuttal expert witness then they they never asked for that if you go to the  transcript they they did not ask for rebuttal of expert witness so i don't really understand that's a three sixty seven so they never asked for it now that now they're asking for it and to me it's really to late so they had extra time to depose they when they were on notice that we were going to do this we're going to present evidence at accordance with the new claim construction that was all of two weeks old we told them we were going to do it the judge asked us to supplement and we did the judge offer to give him more time they didn't take it and they never asked for a you know i'd like to move to the infringement and to the questions raised by judge shall i think the cases you talk about in the applied case which is cited in the brief or say the same thing you have an a means plus function situation and the function is breaking up the claps and there's no contest that both of these devices perform the identical function so it has to is there a structural equivalency disclose structure in the patent and the structure of the excuse product when they're performing the function and in fact that's what applied says and it says once the relevant structure in the accused device has been identified a party may prove it is the equivalent to the disclose structure by showing that that to perform the identical function in substantially the same a couple of other there if that's right you're on the base when you sang when you wrote when you're performing the function the structure of these two devices are basically the same so what you're saying is in rotation the the s curve assumes device he acknowledges doesn't have that form well before rotation on this fragmentation member issue before rotation when it's in the sheaf the basket is called out so that it just looks like one wire center so it can fit in the sheep and the ass wire is pulled out and there's a long wire so in a way there structurally there's structural equivalence even there because both of the correct because he says obviously in this position that we're not forty five it is not a cage or a basket you know and but but the task is it has to be the equivalent of a cage or basket when it's performing the function  applying the function is to break up the clop exact so you're saying it at four forty five and again i think there's some other things even though when the wire is out there when it starts to spin it does meet the  the original claim construction was that was that they wanted was the fragmentation member is a is a wire cage a basket full stop and they put in all the prosecution history that they've put in front of you and said your honor it should just be a your basket didn't get that claim construction the court came back and said now it's a wire cage your basket or it's equivalence or they're equivalence so they argue this they lost us and what's interesting is they're not appealing the claim construction which they lost they didn't object to the the the jury charge so under the psychologic decision that we say in our case it's over the only question is based on the charge that they never objected to which was based on a claim construction which they never objected to no was there snip substantial evidence that there was that's what we just talked about you know i mean i think i think the you've explained how the the wire comes out it's a wire but then it becomes a fragmentation member when it's rotated and breaks up the and breaks up the clot and i don't i have to say that all can i'm inclined to agree i hinted this to it's in the she you have deployment and then you have rotation and looking to claim one of them one that i've won and says automatically plans to conform to the sha expand to conform a deployment it only with device where where is where is the substantial evidence in the record that that's that's that the analogy of the corkscrew theory and that is where we have that i guess which i point to is that for thirty six to four thirty seven there's this discussion he says at four thirty six live this is dark develop again for thirty six signs nine hundred twelve you can see the discipline when we allow to expand by deployment it will expand both the shape and diameter of the in a room and of the plastic to we begin we have to remember it's got to be in contact three dimensionally right as one and then we get into the court screw it for thirty six and then we have it for thirty seven it talks about it's moving forward in one direction and it goes into the corkscrew analogy but that's always with respect to movement right at deployment we have we have the sort a that's easily addressed that was a hypothetical and what that became clear if we go to a four seventy eight in the transcript where  valjean is asked and is it correct that if the wire was inside aluminum right now and was expanded to get up to the diameter of the little man the only contact would be a point sixty three and six prime is that right and the answer here when that when dr gahl just chance to explain well no that's not entirely true there could be contact at the tip that could be contact along the shaft of it ok let's answer because this is a the answer will most segments of graphs are not straight that wouldn't be representative of the graft and this is completely consistent with the the data scope brochure and data scale bana mation that the jury also has b s wire is expanding and conforming to the size and shape and what of this tube and really in the real world what's happening here is since the tube is curved that and dead ended and stop it has to expand to conform to the size and shape of this graph that it's in which is not perfectly straight which curves and goes up and down and this show spinning around them you have that when the basket of the claim device opens up right here i guess i'm having difficulty seeing was george how at deployment the movement because there has to be this contact at deployment how the deployment it's needing many horizontal points at once as the basket does when it's deployed there's no question that the that the cues that the pa wires hitting i guess at four points which you have in this picture there is an absence those four wires hold out and you're still hitting at multiple points or yeah but it's it's it's not sort of horizontal three dimensional points it's just sitting there and it goes like that right doesn't seem to be what's coming in the v a more than the that doesn't seem to be what's jury that's what the jury had and based on that claimed instruction and the animation and the facts of the animation the device itself they found infringement animation of the record yes they put it in the record there's this multiple three dimensional contact that the well that the three of the claim construction in the claim acquire the three dimensional intact is you're looking at a diameter that's going to vary based on whether there's a thrombus there so the device has to be able to adapt to that area and in addition you're looking at it too so this is your x and y axis there are two dimensions in addition you're looking at it to that curves so it has to follow that as well and that's what's shown in the advertisement no i think you're correct on this thread but i'm not sure that  that the fragmentation member expands and adjust to remain in contact with the inner aluminum three dimensions along its length and width that's what the jury had and if you look at the picture that i've shown you it meets this test because it does expand to conform both to the diameter now in that picture the diameter doesn't change but again they had the atom ation that showed changing diameters and it also shows that the third dimension the y dimension and on the on the intent issue a three seven three five we have admitted facts that they started selling the product in march of two thousand and four they were aware of the one ninety one patent and  they distributed the product with instructions for use they intended that their customers will use the pro lumen in accordance with the instructions for you so there's the intent it's been using united states and it's been used in accordance with its instructions for use so we have the direct infringement we have the first part of the su that says you have to intend to cause the x that was on infringement they had met at that believing that issue aside that i was at a fair point to make but leaving that issue aside do you think the intent situation in change is a little bit when you have a case where someone who's been accused of fringe or is practicing well because it could just be an improvement patent that been incorporates the prior product so i don't really think that and on this issue there was no effort by mr mcguckin that the that he never read the claim on on the and apply every element to the arrow product so we did do that they should have done that if they wanted to make this argument they didn't do it so there was no evidence  what other lawyers in the law firm the judge in this case said that alan miller did not cultivate ignorance and did not have any knowledge of science and that is that really the answer isn't there an obligation even then to a large law firms now to find out what's going on i mean you have you have to suspect the conflicts so why not with respect to the opposite honor we never were put on our case here because they didn't make their case as a matter of as a matter of law there were other attorneys working on this litigation and if we had had you know if they had been able to prove their know you're your question points to to a situation where there is sort of a conspiracy if you will where people talk to each other and that's really what we had here i wasn't assuming that i'm simply asking whether there's an obligation not whether there was a conspiracy not to talk to each other on purpose but when when you have people working in different sections of a law firm yes for the same client is there some obligation to coordinate so that things like this he didn't put his head in the stand i mean that mr miller dr miller was not under a duty to inquire whether such additional materials existed and we believe that was a clear error of the law because even if the material the initial never reached it because he disposed of the issue on a judgment on partial findings after we rest our case based entirely on me and that the contention that dr miller did not know about with all the materials and had no tutti to enquire and as i started to say we think you could do even if the the materials he had said nothing about supplementation but they did say something they said we have not yet had an opportunity to fully review the prior art we may of inquiry took to see whether any materials existed he did not reach the other issues my adversaries have attempted to raise those as work in a grounds to affirm we've we've we've put in a reply brief i would think they're wrong on those  speak my cards on the table it does seem to me and i can only speak for myself that there is a pretty good case for substantial evidence on the fragmentation member point given our jurisprudence and what we've said has to be established to meet or show infringement by equivalent in a one twelve six situation equipment meaning little infringement that said it but i am a little bit concerned about the e xpanse to conform limitation and mr george responded i think mainly based upon the documented twelve forty of the appendix that you were obviously looking at also and the the the video or the what was it there was a video was a video showing the operation of the yes he he on his hat on and on those points what is your response to his response to my questions namely his it's not the left hand it's at the middle it's at the right it has to remain in contact all along its width now a big ass could clearly does that because a basket has multiple wires that do that but when you have a single wire in the shape of a sign your story it's not going to happen but it would what i want to make sure i understand is it only and i can only speak for myself mr weber this is a of course is an important point for me so it i hope if i can ask your indulgence here how do you respond or what do you mean mr george says look at twelve forty what is your response to his argument with respect to twelve forty which i guess is the problem brochure right i guess  tell me what your responses on those two points well this is in the video ok well the the the the device shown on page twelve fourteen shows the sinusoidal single wire to the diameter which the claim also requires it is indeed doing that it is not conforming to the shape and it is not big it is not adjusting and making contact along with the entire length of the s wire it  can't because of the sinusoidal shape it's simply that the middle of the midpoint between a and b can never make contact and the midpoint between b and c can never make contact and what about the and again we haven't seen it i