that's because at the time you told us that there that it did have a specific and relatively dramatic effect on infringement and yet you went back and had an opportunity to present your evidence of an infringement and it turned out that  that the change in the construction didn't really matter it didn't matter because the district court basically turned this court's rationale on its head remember the issue before was whether the district court was correct in saying that a way for  so we said that one that die could be away yes but with this court also recognizes that there is a distinction in the patent between dyes and wafers this court recognized that in the description of the preferred embodiment  e specification distinguishes between we for training and die training and even poor more importantly recognize that claimed ten of the paired describes a device for that the falcon machine only inspects dies and it doesn't look at the other features of a way first such as the streets or the edge and it develops a model so little it doesn't look at the other features but it but it uses wafers for the inspection say that we had a very specific claim construction that included the fact that away from could constitute a single doll i think with that with the court said is there a way for that includes a single i'm not going to argue with you about one of people is not a single individual that's always that that was the only holding that was that issue in that case that's always said well i'm not going to argue with you your honor about what the holding was but what the court recognized is that the specification distinguishes between i think if we set aside what this court with this court ruled and look only at the specifications what the specification says is that you can input either way first for dies i mean talks about a do and that's what he did so i don't i don't understand what you you know want to reopen the entire case somehow but that's that's not where we are this is what you're i don't think we want to reopen the entire case what we want to make sure and you give us a very specific set of issues on a right and we rule on those issues and now you go down and you're coming up with a whole different notion of what the claims mean a whole different non infringement theory and theory was that the patent draws a distinction between dyes and wafers and that part of our argument which i think this court which i thought this court's discussion page called eighty five confirmed that's the part that the district court object but it could have only a single die on it and that's what the district court set right and that's exactly what we said and for the question is whether in a way for a model the same as a dima and that's clearly presented by claim number ten of the pair of patent because that is a is a method for inspecting dye substrata what we have here claim number one is a system for well let's just assume that we prefer the fourth quarter from looking those arguments right because we think the rain man was clear we think that the only argument you were permitted ordinary man was to argue about whether or not the accused infringing devices of waivers in the order to create a model right so let's assume that we i think the district court did all that exactly right you have any other arguments for us yes and i think you characterize the issue correctly and that's whether multiple waivers are used to create a thirteen and fourteen you'll see that there is a distinction between the two concepts well in three states pretty clearly that it's training a model as to parameters of a good way for optical viewing of multiple no good wa that doesn't actually say that it just says it doesn't say anything about a model at all it doesn't mean it's those cards it says a visual inspection device to visually importing a plurality of known good waivers during training and that's quite a bit broader than claim examining wafers to develop a model of a good quality wafer so it's was construed to be the same and to say that you have to be construing the model you have to be using a plurality of wafers to develop a model that you didn't appeal the trading construction the first time custom foods for the proposition that the minnesota before august two thousand and nine use the one year treasury bill rate right so you're familiar with the case yes nonna ok so in that in that case the court district court says the statutes text is abundantly clear at the minnesota legislature intended for different prejudgment interest rates to apply to damages incurred before and after august one  has a it's year which is based upon the treasury bench for most judgments and then it has the ten percent rate which is for judgments about fifty thousand dollars now the treasury rate is traditionally the compensatory interest rate the ten percent rate if you don't know why the minnesota legislature adopted that there's no legislative history on it i don't see any case law on it but it's clearly greater than the compensatory rate and under this court's decision i read in the supreme court's decision that it's improper to use a non any attempt to show that this ten percent rate is compensatory but let me point out one of the things that i think may not have been as clear should be about who judgment interest the original prejudgment interest that was awarded through the judgment in two thousand and eleven there was one point two million yes and that expanded what had previously been one point two million dollars for the period to three million dollars now how that could be compensatory is beyond me roger and the fact that we have a seven million dollar s pre judgment interest which is approximately equal to the amount of the judgment here which is expanded by three million after this court remanded i would submit is improper it's clearly not a compensatory compensatory r support for both of those in his decision and that the pages eight to sixty six to sixty eight of the appendix that's where judge davis talked about that i believe he said that both theories were supported by the record and they had quite a long sight of exhibits as well as trial testimony in you went on on the thirty six machines are still infringing but i think the heart of the question is how easy would it have been to have manufactured a version of the machine removing the a just t feature it seems like it would have been pretty simple it seems like they would have been motivated to do it because it actually slowed down the efficiency of the machine otherwise and one of the goals was speed and it seems like it may have been a little used feature on top of it and so those are all fat questions have no idea whether they're correct or not it's what they allege i'm not saying they're necessarily correct but they are fact questions so if that's the nature of the dispute why did it have to go to a jury as to whether there may not have actually been on the market in two thousand alternative would be rather the go to show that doesn't infringe it's acceptable limits available and infringement initially rather they supposedly have a document from early two thousand and twelve february two thousand and twelve right after the reunion that describes this hypothetical other design we don't have supplemental discovery and remember we asked them for any other technical documents about the fall off and they said we have no other documents they didn't give us that argument they stipulated for purposes of infringement that every falcons works the same that's what the judgment decision now before the infringement decision and that was in march of two thousand and fourteen we did not know that they had this report of a design judge judy did not know about it until after that you know they had stipulated that in two thousand and twelve that they would not rely on any documents regarding the operation of the falcon other than the ones that they had already produced to us so then they would reach that agreement at pulling out this new document after the summary judgment that's exactly what happened here so as a judge to have found he was not going to relive again the same not to be clear when you just i want to make sure i understand what you're saying to us and it reconciles with what i'm reading ok so what you said to us they didn't raise it in the context of not an infringement and that's absolutely true it's because the judge held we're looking at a machine and  machine the cells within just all feature ranging two thousand and fourteen page nineteen and they had raised no later than april two thousand courtroom which is after infringement the argument about damages that it may not the idea that it just to go could be a redesign that's easy and could be not infringing alternative in the market doesn't go to not infringement because the devices sold didn't have it and so therefore they are infringing but it absolutely goes to the question of loss of profit and they raised it no later than april of two thousand and fourteen with the corporal which was after he ruled on the infringement before he made a decision on what to do with damages so i'm not see that argument is a waste unless i'm misunderstanding the writer but well here's one big part of that if you look at appendix eighty nine eighty four to eighty nine eighty six that's a part of our brief where we talked about what they didn't disclose and then there we point out in the record can't expect they would not rely on any documents not disclosed they did not limit that assurance to the infringement and should else for any purpose that they needed to raise the idea of an issue because exclusively the lost profits which is whether or not the falcon could be changed to have a non infringing version of it so and then they promptly moved they moved i guess at ninety four seven and await the appendix and you can see also the discussion on page nineteen of the great race they moved immediately and explained all of this to the district court so why why is that too little too late at that to two thousand and twelve and june first that's when i was quoting from paragraph with sixty two they were well aware that issues they were making their record knew they had to be making the record that was what was supposed to be happening in two thousand and twelve before the summary judgment decision what's going to be your position on why you get a new they raised it too late in the process and we're not going to go back in unraveling now the problem is they did raise it repeatedly with the district court and i don't see where he addressed it i don't see where he seemed to appreciate that what they were arguing is a simple redesign of the falcon by removing the just a cold feature would cause it to be a not infringing alternative which would undermine the lost profits finding so he didn't find like it's easy for me to affirm a waiver decision by district court we do that all the time issues of acceptability and availability on the market brain processing in the metro and a complete case make it clear that when the alleged not infringing alternative was not in fact on the market during the relevant damages period there is a burden on canseco the infringe r to prove it's acceptable and available the burden is not on all of their briefing on this issue those type o rudolph has met its burden to show that the alternative is not acceptable or available we didn't have a permit within absolutely no evidence on the acceptability of this alternative instead the evidence is that every single customer for a falcon to james needed that model made with many many waivers to make sure it's a really good model no customer ever wanted to use a pocket with a m than one wafer in fact even without it just to go our expert pointed that out on their reply they didn't dispute that but even perfectly if you got the acceptability traditions zero evidence of it being acceptable to market the burden was on them to come forward with something  summary in effect the judge treated it appropriately as a summary judgment show me an tiriel fact that you could go to trial with a new trial in damages that would actually have to have a job reka decision about character provided absolutely nothing don't want to start where he left off the national that that is my concern you have a very generalized statement from an expert that simply says it you know that if you move you're just a goal that would have no effect on the multiple other ways that you could do this training right  and we asked him what consumers actually use that feature and he only came up with one and he said that they didn't much like that feature because it's slowed down through corrupt system only as a last  here ok and the question that was asked was which customers used but you said come forward with sufficient facts to raise a material issue of fact this is part of the problem is that you stood up here the last time you were here and you argued that you know this claim construction that if we found that a plurality of waivers didn't include multiple dyes on one way for that that there absolutely be no infringement and to the trial judge surprise you offered no evidence to that fact in fact all the evidence was i encourage or disagree with that and now you're telling us that ok you've got this new theory that you've never given any real evidence of except this new statement that doesn't even say what you said it did and that we're supposed to send this back yet again but you're wrong first of all what we're talking about who's the nominee from general terms in this judge were pointed out that only goes to the question of damages whether the lost profits w the infringement in america construction that's an issue that wasn't raised until there was a seventy judgment ruling and we presented evidence that under the narrow construction there was a genuine issue as to gun infringing alternatives now this evidence here you have mr james saying that yes there were consumers who use this this alternative then we asked him which ones and he said well some of them in this it can you name one and he could name only one and then if you look up on  page eighty eight six it's not that he could only he only could name one customer he couldn't specifically said i just don't recall it specifically well he's not saying others didn't use it but your honor i think it's a question of what inference a reasonable jury could draw from that alternative was available there was testimony that it created a throughput here that there was testimony that was really attractive about the invention was the speed and a jury could infer from that that if you took out this feature which was slowing down the operation of the machine that it would be more attractive not less attractive to consumers also the fact this was available this was a software update this was taken out by changing the software that clearly would have been available at the time or at least a reasonable jury  any evidence in the record that would support the amount of damages that was awarded yes the district court did say that there was sufficient evidence and he did cite to a lot of different transcripts sites and