morning your honor as they please the court i'd like to focus on just two issues today the first issue is the second or interpretation of section one fifty four d and specifically whether actual notice under that section requires an affirmative act step is to look at the language of the statute and see if it's played and unambiguous and here it says exactly that section one fifty four d it unambiguously focuses on the status of the election center it doesn't focus on anything that the the us it's inappropriate to look at the history even if the court looks at it it actually supports rosebuds interpretation they cite to a specific portion of the legislative history specifically in the clean constructive knowledge is not enough correct i agreed yes that's a tell me why or where in this evidence you phrased a question of fact about actual knowledge assuming that we accept that were used a circumstantial evidence that came several years before the relevant so that can service circumstance you have any evidence that at all contemporaneous with the publication  we don't have anything like that here you have two emails in two thousand and eight in two thousand and nine that indicate knowledge of your products and sort of you sue them for enjoyment of parent patents or related pat but you don't have anything like in sync or defendants admitted to monitoring sink or patents that's that's a huge difference between simcoe r and this case because you don't have any evidence that they were monitoring your patents and certainly not  wishing law about when actual knowledge is sufficiently established to survive a question of fact analysis it says defendants it doesn't say any of them did it says admitted to monitoring you know and so unfortunately whether that fact as you articulated is true or not and it was brought out in the district court case that fact is not articulated in the federal circuit opinion and instead this principle of law is based upon a finding by our court right or wrong that defendants had this knowledge and were consistently doing this so you might you might be right about the true facts of that case but that's not what guides the law what one nine zero patent prior to the suit being filed so do you have anything like that here do you have anything to show that they possessed the pattern that ultimately issued from the application prior to you so we're making them aware of it  we don't have that i mean this central you're asking us a stack of inference on top of an inference that because of the course of litigation and the competitors it seems to be enough to show that there might have been if construct of knowledge was ok maybe that would meet that standard but it's not even clear whether it would meet that standard you don't have anything that they had actual knowledge well we have the evidence that we presented everything i know recognize that you do have to make an entrance but here i mean i think to have written so that's the problem i mean if you had some evidence like it's in core that the company routinely monitor gross but patent applications then you could make an inference and a reasonable one probability that they would have discovered this application but you don't even have any evidence that showing actual possession and that some defendants had a specific duty to monitor so the firm on those people was ok and that other people shouldn't have been a protester it doesn't matter we don't argue like i would think you have what you have because even under the district courts understanding of what the term actual notice requires judicial court is correct that there is no evidence sufficient to support a finding reasonable jury of actual notice assuming that it that conclusion directly follows from the evidence presented what they relied upon was knowledgeable prior standing alone and the knowledge of the specification of that pattern that would inform someone of that potential claims could come out of the sued for that at least it was so yeah i agree i mean two different facts one is you know there are two different arguments that they ran and i think if there are distinctions between them one is the fact of the knowledge of the specification and i to the extent that the court is indicating patent wouldn't you immediately the probably the first thing you may be the first thing you do read the patent but the second thing you would do would be to look to see if there's any related patents isn't that something almost every reasonable attorney would do pretty quickly after being informed about the lawsuit so i think there's two answers to that question the first is that it's something that someone certainly could do and maybe someone should argue should do but that does not lead to a we will consider you a better than average attorney ok we will not say you're like the average attorney so you don't have to work but better than ever you're totally are you telling me someone brings you a lawsuit your not going to immediately look at the history and in a related applications  on the situation that yes when you get a patent and you're trying to figure out who the plaintiff is if it's a serious case what kind of resources you can expand on it then you look at what the patent says you probably look to see if there are prior patents i'm not sharing that until you're fairly deep in the process you would look for a non issued published patent application that was currently just pending seriously because if you're going to go shoot a settlement with these people to get your client out from under this aren't you going to want to ensure that you've got everything wrapped up in that  nt i think that's true on a but that again goes to the facts of this case the history the litigation here was first lawsuit on the person patent filed in may of two thousand and ten voluntarily dismissed in november of two thousand and ten and that says product had been shut down by the beginning of january of two thousand and thirteen so it wasn't the course of the second litigation and the resolution of the second with litigation the jury would have to find that it was more likely than not that someone between look you wouldn't keep looking every five minutes and you would have had to look at this precise and very very narrow period of time near the end of the litigation or you would even have found that no you would have had actually looked at the very beginning of the litigation because the litigation was filed in september twenty twelve because  product was shut down by january twenty third team after that it doesn't matter who knew what because the product was shut down before the pad never even issued and so the balance of the second litigation was during a time period in which there still can be no provisional right individual reasonable inference over the entire course of the case let's say that the second case got to claim construction which had never even did because of this motion to dismiss for failing to prosecute then maybe at some point someone will have looked up the prosecution like if that's the case if that's a factual case constrain though facts most favorably to your dear friend wouldn't that create a travel issue of fact there on the actual knowledge honor it answering frankly the answer still no on this evidence just shifting the time period because when you look it is a total of eight emails from two thousand and seven that are then go silent february of two thousand and nine but if one of those emails  so there is an e mail internal to it that says we just got notice of this and by gross but we should go ahead and take a look at other things i think that that is circumstantial evidence that would be a four flusher they marked everything they marked on their products in their data sheets and so they were there in the defendants and looked at the plaintiffs products in the plaintiff's data sheets and so they were marked there and put defendants are looking at the data sheets i don't think that's a particular week here there is nothing like that first of all this was only a patent application in the one marks although there is some reference in the reply to them now wait i don't know that you have the facts or think or late in the maybe i misunderstood you but in sync or it says defendants or products mark the same course earlier patents including the four one seven to which this claims are so you know and i am actually and i probably should have done this given your earlier admonition in the lower court's opinion that says that there was testimony that x i don't mean to be practical too much into this but i don't i think one fifty four d if someone exceptional someone unusual and i believe that most people who are looking at potential infringement issues look to publish had applications because i'm not certain that this is an issue that comes up particularly often and so i do think there's a big difference people mark their products with their patents generally speaking and that's what people look at to determine what they're trying to avoid infringement for willfulness for purposes of the issue of direct infringement and other sorts of issues that matter that it is a path not a patent application if you want to briefly move on and tell us about your steps toward interpretation argument i do in the sense that these sorts of discussions about circumstantial evidence to mean actual notice is a different word than notice and it's a different word than actual knowledge and you have to decide that actual notice means actual knowledge in order to find the district court did to say that it doesn't require an affirmative act it doesn't use the word knowledge anywhere right correct which it was not because that would be a much stronger case for you if the statute used knowledge that would be stronger case for either when they say actual notice as opposed to actual knowledge they mean something different than actual knowledge so that they keep this statute does it use the word knowledge anywhere as a distinction with actual notice i think that's correct but the statute also doesn't say that there has to be actual knowledge it says they're actually actual notice and notice is  different word the knowledge and has with it inherently a meaning of an action being given and i just don't it doesn't say the action is right well it doesn't and so i guess the best that one can get so here's the thing on on an actual notice i believe there are different statutes that have been interpreted in different ways and so the best you can come to the copyright statute is the term actual notice it has been held to require for that there's this plant protected but in that case i don't know that statute but in that case because it views those words or refer to the copyright holder or does it refer to the queues and printer because the problem in one fifty four is that it's not it's not phrase in terms of the  phrase in terms of the in the person as opposed to the marking statute which you refer to which is phrased in terms of the pact the having an obligation so i think i would disagree with that in part in that the marking statute does talk about what the patentee have to do with respect to marking but by the time you get to the notice provisions it's all in the passive voice it says well once again if i don't agree with that interpretation at all but i think there is a distinction but it's the copyright on that you're saying is is  example does it phrase in terms of what the copyright holder asked so it says it what it says and i can't quote it because i didn't write it down projects but it isn't seventeen u s c want to know and it's a pine upon actual notice or something like that so i don't think it explicitly says but when you follow the chain of the statute because it requires an affirmative that point being that i'm not certain that the term actual notice or even the use of the passive voice is something that is clear from the face of the statute as a i don't i don't recall leaving that out but i do know that the two definitions are slightly different black's law dictionary is it requires an act of be done on the person i think the entry one is like without the how does your definition make any sense if i suppose that every person in the company has the patent sitting on their desk and in fact they've marketed to high heaven right you know all these things and they're exchanging e mails about how are we going to get around this patent but it wasn't given to them by the hardhat until we you're going to say they don't have a person having actual notice i i i hear what you have said i built my belief is that to eighty seven uses the how to eighty seven was being read and that's what the congress are saying that i don't think any of that's fine but i do think the legislative history for something that by the mere use of the passive voice makes it at best ambiguous how this is a place that you're going to make it and if the s says a person who has actual knowledge is subject intervening right it doesn't that's i mean that's very clear isn't it yes well isn't that what the said it doesn't because the actual notice is a different word than actual no constructive notice how much weight should we give that somebody should have looked up you know with a related path right so i it's a big abuser because i think there is quite a bit of overlap between constructive notice and what could be construed as circumstantial evidence of actual