honor at the appellant's in the purely unusual situation of the district court having granted jamiel to the parties with the burden of proof after the conclusion of the evidence before the case was submitted to the jury and the way requirement that that module rotate the interpolator phase of the sampling signal in the receive lane at a rate corresponding to a three since the onset between the sampling signal and the serial data signal specifically at page twenty four is that they had asked the expert to shorthand his testimony the shorthand being that he simply then testified that in his opinion infringement which is not accurate at all what emulate his expert had admitted or agreed to was that on occasion and this goes to another part of this limitation on occasion that would be a reduction in the frequency offset on other occasions there was not there would be an increase well half of the time you would increase in your half rate architecture half the time you would be increasing to synchronise and the other half you'd be not the so as to reduce what happened in the recent this is the claim construction issue that that is how broadcom is trying to pose it is a claim construction issue it is not however a claim construction issue we're simply reading the claim language verbatim the claim language requires that this dear be an adequate correspondence between frequency offset which is the difference between the sampling signal and the serial data signal corresponding to also just mean related to not in the situation your honor first of all the restaurants case cited by the app pelly says that it means matches or similar to our experts said proportional to their honor if it were talking about this claim but it's not the related to language is talking about playing three which was not asserted in this case claim three was dealing with a quarter rate architecture and when describing claim three and the serial data signal is represented by zero make a date and therefore the frequency offset meeting delta omega is omega as minus zero make a d and what he testified to is in the hat  of non infringement perhaps we might have a bigger dispute that what we're here arguing is that with this unequivocal testimony it's attachable dispute with our expert correct that then the frequency off at does not correspond the jury should decide that that was a factual issue not a claim construction issue we're not asking for any of these terms to be construed we're asking them to be taken verbatim but that depends upon you reading corresponding in a very specific related to i have to be more than that it has to be for the purpose of the thing it has to be proportional to or i'm trying to look at the bright side whichever is four times and you sample two times that testify to that it's what the factual testimony what whether the jury would have agreed with it or not we'll never know because the court granted shamal to the party but the burden of spirit of raised this issue as an earlier point and said brief that corresponding a page twenty nine in their briefs the corresponding should mean similar constable or matching we agree it should mean similar similar comparable or matching or the words that are expert chose was proportional to which bro case was which is cited by both parties a perfect example there what we had was the plaintiff had introduced an investor invention testimony by way of deposition the defendants i countered and what they counted was where the inventor had admitted that he had a best moat that he didn't disclose it in this in his patent and that it would have taken on two experimentation to come up with that that's most now once going back again to where the jury was  twenty six we see that sampling frequency and serial data frequency need to be related to one another not necessarily equal and we're not arguing equal your honor i  different language than claim eight but even if we're talking about related to which i don't believe is the correct word to be using and in relation to claim eight instead i believe we should use  interpretation which is similar matching or corresponding that evidences unrebutted that doesn't take place in half or eight architecture students your expert  corresponding in the same sense that broadcom did when describing the half rate architecture no i don't believe he said your honor he well in the same way broadcom believes yes use it in the same way as in similar matching or comparable certainly but not at the end it just simply has to have a relationship otherwise what's the whole purpose of saying in this particular claim that you've got to have a frequency offset that between the sampling signal and the serial dated signal that is at a rate corresponding to their frequency offset there would be no no point to could it could than just have some relationship no matter how big but again i have to keep going back to the procedural posture of this case we're not here arguing we should have one summary judge or jame all of non infringement we're arguing that the court was completely wrong in granting jame all of infringement with this kind of statute the fact that we could have easily have the limit corresponding to the equal to absolutely not your honor absolutely no definitely not to me that now what we are trying to say is that the the frequency offset is equal to the difference between the sampling signal and the serial data signal the add a rate simply needs to correspond to that frequency offset not equal to it by any means and we are we are not arguing that and we can see where the holes were in the plane it's testimony when the court had to resort to saying things like inherent in his testimony was it and because he said this that it must be it must work it has to work in this fashion that means he never said it world and emulex is incorrect your honor column twenty six says for the frequency to be reduced it need only be related to one another and it goes on and this is about line ten through fifteen for example frequencies omega sampling and omega data are considered synchronized to one another when omega data equals n times will make a sampling work and is an integer greater than  what that is talking about is when you have an number of sample orders in this is a you can either sample in a full raid architecture or you can sample in a sub rate architecture in the instance of the accused process  product that's a half radar detector so end equals two instead of there being one sampler there are two samplers each of which operates at half of the frequency therefore the frequency  exactly proportional that's what it means to be proportional it's related to one another by reading this integer and i just put some numbers to it which our experts do that trial he talked about  ten gigahertz sample which is ten billion samples per second but if we just simple simplify that in a full rate architecture the sampling system could be at ten and the data could at the frequency offset would be to be an ops of the two that needs to be adjusted for but in a subway system in a half rate system that frequency would be reduced by half so your sampling could be  your data would also be split among these two lanes and be reduced by half so your data would be for the like would see also if there is one that is exactly proportional to the portion is one tell us why pickering doesn't render the very title it is a clock recovery path and it is designed to recover a clock signal that's used to synchronize all of these activities within the chip that are occurring in ten days only difference is that the one you're mentioning the data would have no reasonable expectation of success papering is designed to match the transition points if you imagine that sine wave and we reproduce that in the in the brief mention that finally the to crossover can pick up data as well as but that adjustment will is no simple task and that adjustment is what the one fifty pattern is directed to it's not only recovering the clock signal but once you have that clock signal determining whether the data the data point that you're trying to recover occurs a bit too early a bit too late and continuously updates the phase in order to capture that data pickering is simply not directed towards capturing data it's a clock recovery system by its very terms and it's used in circumstances when you need to focus on those transitions those caught points if you don't get the data point just right if you don't sample at the point where your data information occurs then you'll means equal to that the half rate system is exactly proportional to a full rate system there was no genuine disputed issue of fact on this point and cases like kate sack which was recently decided have issue and this court has affirmed summary judgment of infringement where there is no genuine issue of disputed fact in cape tac they had an expert the defendant had an expert who testified that the structure wasn't met by the playing just as reasonable interpretation of the events it seems to me there are cracks on your summary judgment standard your honor he he did admit that the that the frequency offset  was reduced by this structure part of the time at least part of the time but at that that was perhaps most sloppy going with you're not talking about domestically here there isn't a structure in the apparatus which is use at least part of the time that structure is always there adding another structure which is used the other part of the time that may not infringe and that also is an issue of claim construction but adding to an infringing product does not take you out of the scope of infringement their argument at trial was  ly this injunction was a well crafted injunction which included a sunset period this injunction included a specific period of eighteen months for emulex to continue infringing the pat so that it could design around and take out the infringing feature there was no such provision in the apple the samsung that was an immediate and preliminary injunction that's the other distinction perhaps not as significant but that was a balancing of all the big factors in a situation where there was a likelihood why would the verdict be an important distinction i believe it's an important distinction or you say it you know why isn't it important balancing the big factors it's a much different balance when you have a proven adjudicated infringer and also the issue of liberty was adjudicated with a finding that of non obviousness you have both of those facts those have to be weighed in the discretion of the court did not abuse its discretion when making that way but significantly also the the sunset period allows for a period of time to take that infringing device to take that feature out of the device and cease infringement and that goes to the balance of the harms what about their changed circumstances or even on the injunction change circumstances what respect from any less is represent none of those reported licenses are in the record and there was an argument for change circumstances perhaps i mean i would have made that at the district court level they didn't but regardless there was no license to dell there was no since to cisco these are facts are not in the record however there was limited provisions which allowed h p and i b m to continue to sell for a period of time that's no different from what actually happened in the broadcom versus qualcomm case which this court affirmed an injunction where broadcom had licensed in that case a bear a license to arise and which was the majority of the market and this court upheld an injunction and found that fact alone where you license a customer not your competitor rather tom is not licensed a competitor to compete against it directly a problem has worked with some customers in order to  do what broadcom was prevented from in the first place which is compete fairly for these design wins and that's another part which goes to the difference between the apple samsung injunction and and this circumstance this is a design win based marketplace of broadcom and emulex sell to sophisticated o e m manufacturers they don't sell through retail channels like samsung and in these circumstances when one design wins there's testimony in the record when one design win occurs there's the stickiness factor in it increases the chances of the next design win occurring and emulex competing against broadcom for those first design wins while infringing the one fifty patents gets the advantage of that that is something that without an injunction cannot be repaired and money damages are not submit sufficient to remedy thank you thank you ms  the frequency of the offset and broadcom never cited to this court anyplace where he said that whether it means related to or not the record still devoid of evidence that would allow jamiel dr nicholas never admit it if you choose products rotate at a rate related to the frequency off that so again the record is not appropriate it's all about the record and what the jury should or should not have been allowed to deal with your i asked an interesting question about the d is testimony be interpreted in a different way in more than one way and the answer is yes that the jury to determine not for the court to substitute the court's judgment as to what dr nicholas did or did not mean since the testimony speaks for itself going out to the audience that's very quickly  the data passed and your honour's asked whether or not it with an obvious one is still in the art to simply make that jump and the response was well such an adjustment is not an easy thing to do well the definition of one of skill in  art here includes several years a postgraduate experience with clock data recovery system to someone of that skill in the arts it is indeed a very easy thing to do cluster of consent secondary considerations that were secondary consideration was before the prognosis and pickering was before the patent office and b and but we all know obviously the standard doesn't change is still clear and convincing while it may be a little more difficult to get over that hurdle this is very complex technology with a very high level of skill in the art that one has to have to truly understand it and we know that examiners make mistakes and references get overlooked in this particular case we had a reference that was essentially spot on minus the data path capture data that's from dr nicholas your honor in i can guess of course the citation of my cause co counsel hopefully find it quickly in our in our reply brief but what the testimony was is that in the nature of the problem to be solved which transceiver device you would necessarily need both a data path and a clock recovery mechanism and doctor say on of that you create that that data pass is not a difficult thing to find the difficult thing as dr with the algorithm which is part of and in pickering reading the patent so if you get off a little bit it affects the reading there seems to be bigger problem here than you're characterizing and i didn't find any place where dr nicholas said well person of skill on the ark do this with his eyes well he didn't he didn't exactly say with his eyes closed but he did say that the data path part is the most obvious part and the easiest part and dr levy the inventor on are caught data recovery circuits that's what pickering was aimed at and inherent within that is you're going to be talking about recovering data there's no purpose to just recovering my didn't but it doesn't address capturing d looking for where in the record it says that a person of skill in the art would easily make the adjustment up and down the wave to make sure you're capturing data i would member if you get a little bit off you're not going to get the right reading understand your honor and i would cite the quarter page thirty seven thirty eight of our opening brief where this is discussed in both the terms of the testimony dr sound of it and the testimony of dr nicholas where they both clocks and i know we've got the data capture at least address the problem is adjusting the face to measure that data accurately recognizing that if you don't get the you i don't think so at all your honor because what we have the inverse we have the inventor testifying about with the difficult part of it and that's the difficult part of the algorithm therefore the rest just follows that that's a non difficult part or i easy easy part and that's what the the record we have before before the court i don't know i think i'm out of time thank you mr mcveigh any final thought or you only about the injunction your honor that hopefully it would be