good afternoon i'm a place like or as we call them solids it's easier for us this chick i confess to be somewhat confused about the relationship between the reefs and the jury verdict i assume the jury verdict form was agreed to by both parties it was agreed to by both parties as a form of that was largely support she justifies all we had something that was a little bit different for example on the direct infringement question but that it was jointly committed to the is not being treated as an issue in the case if there's no jury verdict it's all directly in french we have not appealed that's that's the other sites across the field we agree that these devices in french and the same thing as all the devices could be infringing by anyone's use but there's no there's no jury finding result directly infringed well i believe that the parties treated that as a result and the judge entered a judgment on that of direct intrenchments and now go ahead challenge that i don't i don't fall i really don't i don't understand how you can get out of a jury verdict in a direction  the show the founding contributory infringement here and if i could i'll just go straight to the knowledge requirement because i think that is the one that probably isn't most concern for though it seems to me there's in that respect there's there's quite a bit of difference between have a substantial argument against infringement and so right addressed the second set of claims as to why that doesn't under its records decision in camile mean that the jury could find that there was no contributory infringement with respect to how we're just talking about but about the way for quite so casting particularly on the knowledge requirement i would sit down or well we go back to to arrow and what is required for knowledge now under this court's precedent as well as arrow to knowledge for contributory infringement and intent for induced infringement are not the same thing but the supreme court certainly in carmel and in global tac referred to similarities between them and them and discussed them together that can't be enough right i mean just because somebody is accused of infringement doesn't mean that they have knowledge of infringement the could be approvals allegation of infringement and here the they say well we had good defenses with respect to the it did not require that level of knowledge before for contributory infringement meaning the intent to entrench how there was if you if you look at arrow two there was an accusation of infringement notice letter there was sent to put them on notice and that is the starting date for contributory infringement in that case and there may be some exceptions to a non frivolous accusation or infringement but they certainly knew about the patents they knew that philips was asserting around and even though they may have had a subjective belief of non infringement that didn't that wasn't present there zero two and is not as far as i know been overruled by the supreme court even though they may have had a reasonable subjective belief and an infringement because that was not required in arrow and that is never been the requirement in fact if you look at this court's cases cases like yours packard and  substantial non infringing uses if i could address briefly the main argument in our opening appeal on indefiniteness was also five to six pound here account depending on the conditions for the testing of the electrodes and electrodes may or may not entrench leave the laid out of the conditions that are not specified in patent temperature over a number of shots of how somebody drafted the have in which the conditions were specified the specified level at any point during that temperature range i think that would be definite that said if it exceeds that number and with any temperature in that range yes but that would although why isn't this like that because there was evidence that someone who's killed in the car would have known to use this room temperature make the determination of room temperature it can't be that every condition known to someone skilled your has to be written into the hands so i would agree every condition doesn't have to be written but these are important enough that they make a difference we're talking about a one on one measurement here and the difference between point nine manipulate the conditions change the temperature or lower the temperature used ten shots because the first five don't infringe until it gets to that point i'm all those conditions are not specified in the patent and that's really the problem with it with respect to the test that you've conceded frenchman in the district court and i guess what i'm wondering is how could a reasonable jury fail to find contributory infringement when you basically conceded that there was no defense with respect to french so i disagree with the but the factual statement that you made which was that we conceded infringement so here's what happened where your your expert testified they were infringing so let me just provide some some context i want to answer your question quite directly we never conceded infringement at any time before the case was filed we chose not to put on given the time we had in an infringement case on yourself was infringing usenet in session he was asked that question on cross he did not give any opinion at all in our case on infringement that's correct but even worse than that he said it was infring weakly said he was asked what the devices infringed and he said he asked the question is a little odd for the reason you pointed out i think earlier which is that the devices have in the software and other components which are capable of being run by somebody in an infringing manner what's interesting though your honor is that even with that testimony phillips did not win all of its self test on the issues of invalidity which we thought were the strongest they couldn't even prevail on all of the self test claims in fact that's not the only thing they lost they wanted other claims this was a contested case we disagree with you suppose we say ok with respect to the test that means there was no reasonable infringement defendant and the knowledge required by home was present you have they contested infringement before the case was filed there was an exchange of correspondence there were meetings they could not come to a meeting of the mind at all component and not even know you're infringing but if we instead of that there were substantial non drinking use so i think we've made several arguments on our papers so we have argued at length on the knowledge component knowledge counting a quintessential jury question and here philips failed to put on a case of what our intent what they could have done that they could have tried to do that they didn't probably because they knew they wouldn't do a very good job with it because there was so it was hotly contested for him to all argue knowledge i just want to be clear that match your point and not if you're arguing on the substantial non infringing use your there are substantial not infringing uses on the self test patents because just because they have these capabilities you actually don't have to use the capabilities you can choose to use them or not so for example shipped results so that is i know what these units have in their software income point which you offered in a certain way just answer my question is not true that they're shipped so they're infringing no no no they're  they are shipped they are shipped with no battery inside so nothing is operating so the first thing that has to happen is that i don't know what would you do are you saying people wouldn't insert a battery  and then you make decisions about what you want to do i'll give you an example put in a matter e it performs in infringing man correct not necessarily not the way it's shipped unless unless the user makes a change in  the difficult standards put in there are those infringing your honor i think the answer very it's quite a lot because there are so i think six accused devices and i'm not sure i know the answer off the top of my head for all six of isis four of them are hospital devices two of them are meant to be used in public places i'm not sure the answer is the same for for each of those i want let's talk about the public places ones because those seem the ones that are most likely to be shipped to require no additional side and all you have to do is put a boundary and those why don't those contribute surely infringe well there's one other problem we pointed out in our papers which is that contributory infringement requires x predicate acts of direct infringement so in other words the end users would be the direct infringers in this case philips presented literally no evidence of how any end user actually uses the product they did ask some questions of a couple of dull witnesses about do you think that the end users use the product as intended if the answer was yes we think so but no evidence was put for example if you're in a hospital and decide i don't want to run the test automatically i want to run it on power up that's a choice you can make you can make other choices as well which take it out of infringement the software has that capability but they chose not to put on that evidence in the jury may have asked themselves the question ok i've heard the jury instructions and the drain structure is what's why are the during structures will choir that there a finding a jury verdict that these things these devices when used infringement self test patterns why isn't that itself a finding that there was infringement because the devices were shipped to people and sold to people why don't you have a jury finding of inference direct infringement by the users because it's a method explain every claim here except one is a method claim method claims are only done  right by the devices it is that was the finding it's an odd finding as rahner pointed out because normally you have a party accused of direct infringement or a party accused of contributory infringement but not a device unusual we weren't there at the time our firm didn't try the case what we saw that and that's how we interpret it for purposes of the appeal on a first talk about the waveform patents and the way for patents there is a significant same construction issue and that is whether what is the discharging step means is that any delivery of electricity or does it mean the electoral therapeutic shock and i think if you look at the language of the claim it's very hard to reach a conclusion that anything energy source across the electrodes to deliver electrical energy to the patient in a multi phase like way form multi phase like as not in all the claims so the same energy source and electrodes used to deliver electro therapy estimated in the struggling on in terms of at least for me to decide because it seems to turn on whether wiley sure is two different tasks on two different timetables is that right the place where i think it's just very clear during the one hour of the day that the machine is programmed to run a full battery of tasks and then talks about each and every one of those tests that gets right so if you read from column sex at line three and you keep going to test as i think you described it power up and power down and it does it every hour and checked the clock and that was not was what was meant by a self test this is an anticipation argument it's a factual question our expert did disagree they had clear and convincing burden so i think that's where we are now on the question of the waveform patent infringement i believe is old really making two arguments one point construction and one on the evidence even crediting their argument on a claim construction about a stare a pick shock there's evidence in there that they measured the impedance during the shock and we don't have to go very far as just as far as their own website which we which was shown repeatedly a trial which said during the shock that the impedance measurement took place they used the word shock but even so they're trying to read something more into the claims with the sensing pulse or test poles that they like to call it it's part of the overall waveform the prior art had a separate test pulse than a waveform the judges construction he merely construe the discharge step as discharging the energy source that happens during the discharge of the energy source that happens during the main part of the waveform you can't parse it out that way and if i could go back to a couple of issues on our main appeal to me to be much stronger in their favor the fail safe because it will destroy you well again we do have a factual dispute over whether or not the violent brochure which is a very cursory reference whether it does self test and that's what's disclosed in the pound that's what is understood by stop to ask if a comp on it fails as a battery fails it will show not ok not if it fails in a particular state that will stay in that state and that's all the violent brochure run and it shows a failure and then the back the power dies and that's really what's described it will continue to show you what it doesn't describe is the opposite you run self test and it shows past and then the  what happened so that some of these indicators they're mechanical they can be stuck in one position or another one is describing a pattern to be truly failsafe if there is no power if anything fails it will show not ok no matter what and test and there's all the vices they are preprogramed to run soft us onto schedules we did put on evidence that there were no substantial line infringing uses it really does come down to when you're shopping somebody or the self to ask are those portions of the device useful for anything else and they are not  and whether or not the customers use these devices we put on circumstantial evidence we didn't have somebody come in and justify yes i've used this device to shop but there are certainly plenty of evidence of this is how it was you know but that's the wrong yes fortunately for you directly in french and there's no contrary evidence from sol that somehow these devices were not used as they were intended but they were not used to differ really people that they turned off the soft tasks there's absolutely nothing in there  first on the issue of infringement of the waveform captains soldiers argued that there's just really no difference we have to sort of this one big pulse and that's just not true and philip's own expert recognizes exactly what happens philip's expert confirms the following and i'm just reading his testimony was also products in this case determine impedance during a sensing pulse use that to pick a that the sensing pulse is not sufficient under any scenario to just of relate a patient it doesn't have the energy all that's meant to do was sense and figure out what the  why under the correct construction for the way form captains there can be no one frenchman at all so if there is a second reason subgoal cannot be found to directly infringe the way form captains and that is all of them are method claims all of them require shocking of patients zulkey is not in the business of shocking of patients the only evidence in the record of adult shocking anybody is actually evidence of clinical trials which themselves  of which took place more than six years before the lawsuit was filed so even if you could attribute the clinical trials to us all and even if they weren't protected they were all well more than six years very very clear exactly what the nature of the two test is and the facts that walks you through that flow chart which you state and i understand that looking at a flow chart can sometimes be confusing i get that on on the scene or are you here we're