think three lawyers here and i think you know very nicely chosen not to have three lawyers rip to fifteen minutes i understand must be young as is taking up four and then you're about it will be split more always controlled the lamp power and there was no time at which there was not for the amendment was added in order to provide that there would be control only if the feedback signal was above the threshold  column six line and i are they are they telling me that there are controlling the power during those two occasions but we haven't the record your honor and what's just what's the what's all that language in complex all about that language and gretzky mentions understand the science your honor what we have in the record yes we got to my simple question and i mean the your other side is it is arguing that lamp short circuit and during stirring up are equivalents of they're entitled to starts at five in the whole business about a wimp short circuit stops of one sixty one and then they start talking about start you're on are you there monitoring current or ter system with feedback for always controlling power at eight two four six two nine he stated in his deposition there was no time when there was not control in the gretzky so i think you have the answer there as far as the record of this case is concerned but does your argument on equivalence depend on that i mean page thirty five of your brief knowledge it may well be that the zero two micro did not have to surrender the full terrain at surrender in other words i read you  clear under festool in this court's cross medical decision and cetera that there could be no tangential yella here the second argument is even if it's not clear that the prior contains the exact equivalence it issue and even if there could have been theoretically some claim amendment made that would have carved out the equivalent edition that was not done here and this subject of the levels and the effect on the ability to control is not tangential to the minute it's the exact issue on which the amendment was made the fact that the alleged equivalence here which is that an insignificant feedback signal is  to say that in significant control is the equivalent of no control for one thing that doesn't really state an equivalence argument because the insignificant control is not a claim element  kind of a factual issue on infringement involving whether or not the feedback's that bill controls the power during start up or not that's precisely right there would be a factual issue so that i wouldn't structure the even that you're advocating would necessarily isn't that a claim construction question and not a factual issue there is a factual issues to what the circuit does whether the diode conducts for example that was an issue in which he was developed of accused of us the claim construction issue is whether this claim with  only if clause allows for some small amount of current and exercise control if the claim construction issue had been decided in our client's favor done is take the statements that were made by the experts to and by the inventor and refute them based on the claim construction as stated at sixty three ninety four of the appendix the expert dr micro stated that the only if applies only during normal operation and has nothing to do with the start of a period the inventor of the power came on the stand at sixty five fifty and sixty five fifty seven and said that the only if limitation claim construction and say no their testimony is wrong the failure to construe the claim allow the jury to hear that testimony and very possible everything you know look at it from the other perspective which i gather and mean that is to say just wrong to hold to do what happened here which is to love and jury to hear two different arguments about a claim construction let the case go to the jury when the evidence could sustain literally infringement even when you are going well the martin case for one says that it's a matter for the court to decide the claim construction you can allow the jury to hear two different claim constructions from opposing experts and allow the jury to decide the case it's clear absolutely that it was the role of the court to decide the issue of whether the claim construe the claims allowed for an exception and that in fact was the issue was judged the district court itself what the market hearing said so th of this is whether there are exceptions allowed or not under the only if language the problem was that he didn't then go ahead and decide that issue and offer a construction and so your argument is there was a legal area of sand literally infringement to the  jury without having had the claim construction absolute and given to the jury in a church the only if pretty provision was the only line the only costs that was the only limitation that was disputed at trial for the district court to have declined to construe those words was absolutely legal or not legal but just to the final issue before your time runs out and that's the sort of way through issue an objection to the form and so forth it's your position that even if we would if we with you on one of the two issues presented on deal in that case the court this court found that not only did the party in that case waive the objection of the verdict form but that party actually proposed the verdict so the court said you can't object to the verdict form you can't object to the fact that the issues weren't segregated in the inner auditorium but the court did consider and did rule on that party's objection to the jury instruction on that issue in our case we did object to the jury instruction as mentioned it was all laid out in the motions in limine a paper the issue was quite clear the prosecution history of stoppel in the defendant's view should prevent the giving of that instruction and that issue has been preserved by the objection to the dreams but that is a different issue that not from a projection that would have lied to the general versus the specific or i mean that that issue is just to tell the judge your honor you want to separate these out the traditional kind of me and it's going to mess up there in appeal so that objection that talking about here to a general versus a separate verdict is different than your d and we just it is a different objection and that is not the basis for our basis for appeal is the giving of it incorrect  thank your own image which the court i'd like to address briefly the standard review issue and talk about the only if construction the court's refusal to construe that phrase they only have limitations yes the court why didn't it because it didn't have to because only if there's a commonly understood phrase well apparently not by what went on in this case right i mean there are two opposite views of what got and that's really what we need to ensure what the jury was considering was a very very tough on deep profound disagreement between the experts about how the accused the vice worked and whether or not jurors as mentor teaches us the job of the district court is to construe phrases and words only to the extent necessary to assist the jury in their understanding that he or that that mattered here because that was had a very pernicious result because then the argument would have been made to the jury don't concern yourself with the fact of whether or not there actually is a feedback current occurring during that time they're talking to you about an exception for that period of time and that's not what was argued what was argued was the specific issue that is represented here in this conditional phrase only if said feedback signals above jury on two theories right and show that one was legally infected then again is drop off color black and all right and i take it to be your argument is because there wasn't an objection to the jury or the jury in general with the question of of harmless error how if you don't preserve the issue by divine allowing you certainly agree that your adversary preserve the weak preserve the instruction issue your honor but at the moment shouldn't be a now because at that because at that point the court was giving the deal we instruction to the jury and the question is how do you preserve your position how do you preserve your opportunity to argue later on that this was situation as we have here at seven one one nine at the pentagon where they were called upon give us give us the court your position on the verdict form and they specifically said a and b but never see then you wouldn't have a situation where one round was you know you will have to worry about the way you'd have to have both of them being wrong but that's but my argument assumes that that literal literal infringement was properly and y sense that is to say no except i'd like to go to the jury but again the issue the issue has to do with do you construe that phrase versus do you give the jury that common english phrase and let the fight be about how the devices work and then i believe but if the bottom line had been that the district court box your argument that solid state is all you're talking about and if there is such an insignificant amount of current going about there's never any need to nothing happens in the feedback circuit so there aren't any exceptions in that respect that's i didn't see any of that argument being given to the district court judge is how we should construe the client will get we weren't you know they weren't front of the jury there was no discussion about claim construction at all and that that would have been at least theoretically the trigger for the court to say all right you're putting some issue of claim construction f can you point to me in this record where that conversation was going on no wonder at the merc when hearing from the jury or both no your honor our position was consistent that it did not need construction because it's not it's a simple conditional it in the way used my theory is that only it does not need construction because it's a simple that by itself is a simple phrase what needs attention from the jury and what was decided here and had to do with the operation of the  device assuming that it was a clear conditional froze there it's a ranch it's either this or it's not and so the issue you know it's a false argument to inject and in fact i  really think when o t and i check points to the record arguments of pages fourteen to fifteen of its reply i really need to look at those because those points were mainly made to the court not in front of the jury then what not if given the opportunity you would not have pressed a definition of only to say only if has exceptions you would have conceded that and the f was an exception and i would have different i would have fought against if this if this no exceptions approach had been suggested at the trial i would have fought against that because two things what was suggested i mean we have a quote from the district court who says it boils down to whether i believe there can be exceptions so going sorry wrong what i meant was if they had suggested your honor we propose the following construction or only yes and it is this and no exceptions i would have i would have objected to that first of all because it's not necessary because the phrase you know in light of the common meaning of the word is there on slightly seventy two sixty one well boils down to whether i believe you're going to be an exception mcphail y giving them the phrase only if because it wasn't necessary for them to understand the claim and to apply it properly and this is what i would have said at the time if they had said please add quote no exceptions to this not in there you're saying you don't know  right because you can't point to us in the record anywhere where mr kerry and saying mark well it was very very careful not to have attorney arguments sort of get in the record and i ask you where in the record did mr cherry and talk about whether they been exceptions i guess your answer if you don't that i am not familiar with any place where he said that your honor all i'm only pointing out is as we would have said if you had been the martin hearing which is irrelevant to what we're trying to find out well actually i'm i'm trying to  i hope it's not a relevant issue we're trying to address an issue of law i mean which you would have told the judge had you've been on the mark and hearing it's isn't going to be a relevant are trying to figure out whether the judge should or should not having listened to two sides talking about whether or not there was or was an exception usually brushes whether the judge who of picks absolutely or and i'm and i'm i apologize for how ching it in that way what i'm trying to point out however is that  it is appropriate for the trial judge to deny a request to add something like no exceptions to this in part not only because it's not necessary but in part because it could be misused in front of the jury to point them away from a legitimate argument and that's part of the discretion of the trial judge young comes into your bottom line argument what it doesn't make any difference if there are exceptions we when there are no exceptions we're so it doesn't make a difference how you can through the cli well that's true too injunction that was based in part on willfulness and therefore the issue is ripe should be considered here and because the failure to file to renew the rule fifty motion resolves all issues typically for the courts discretion whereas the seagate opinion and all of the all of the instructions we got from the supreme court were were bottomed on this concern about punitive damages and that's not at issue here and so it's really all that happened is the court asked the jury for willfulness determination that it could use later on on issues that were within its own discretion on attorneys fees and the injunction had nothing to do with enhanced damages and so reminder here as to as to s p i which is the only the only party that actually appealed on this having the opportunity to do so as to the other two parties it's game over because they have the opportunity it was right in the did not and claims relating their two by their very nature cannot capture every anomalous situation without departing from the essence of the invention so what to micro says if that time is if there can be exceptions sentence that follows that it's given blah blah blah the court should reject if in its proposed construct for me yes absolutely and what to micro didn't say here but which ended up being cases that they were allowed by the believed that to be the proper construction of the only if language and that was incorrect mr pulley noted that the court did construe a larger for a piece in which the words only if  appear and the problem with that of course is that the construction simply repeated the words only it without giving any elaboration or meaning to those words since those two words were the key to the case as this brief that i just quoted illustrates how it was incumbent upon the district were to construe that phrase and the failure to do so was reversible error and this is your view that there is no ordinary meaning to only have the word certainly have our ordinary words we believe that in the context of the claim as they would as the claim would be construed by one school in new york it does require construction certainly the word ordinary were only rather is an ordinary word but it didn't keep the courts from construing the word in the context of the elect the case for example or the womb or case and there are many other cases where where the issue is the crux of the case where the simple word marry word is going to decide the result of the case that a construction is  should decide the case all we know is that they decided it one way without getting the rule and all we're asking for is that in order for the jury correctly to decide the case whichever way they decided they have to get the right rule and here they didn't get that rule and that's the fun and you realize that you may be in jeopardy after the claim of corruption when the factual issues presented the juror in germany meant the claim construction you don't quite know how it's going to come out i mean if the trial judge says well in the things don't count at all young like that either but you have concede i think you have helped the court by explaining that there is a factual issue on claim construction regardless of which way that mr gore just goes this effectual isn't a literal infringement i try me a little yes and i think your honour's absolutely right claim construction that does get decided on remand if there is a ring then we'll have an important effect on the outcome of the case the problem here of course is that that wasn't done in this day two i believe and there are several cases in the district worse we don't we don't know what of this case resolution of this case on this claim charge no affect those other cases are i guess you wouldn't know because you're not i don't know i don't know  respect to the pending proceedings in the district were there is it pay sixty b motion for relief from the judgment relating to the original judgment and there are a number of motions pending before the district court on the attorneys