royalty analysis the law restores the patentee to the peculiar a condition it would have had if the infringement had not occurred and were comparable licenses in evidence and receives its full weight the jury can use that license to find the royalty rate and the base so there are three reasons here your honor why the court should restore the damages judgment st in this appeal and at the jury trial both technological and economic comparability of the cube are license are established q r license establishes a worldwide sales royalty base for sales by a non united states company so the jury  for concluding as it did that all of the infringing devices that reach u s soil wherever st sold should be included in the base and this was consistent with the jury's georgia pacific construction particularly factors one dollar fifteen cents they received the typical counsel counsel let me ask you the indirect infringement the jury did not find in your favor correct that is correct all right so the the problem i'm having is it's not a question of whether someone in a license could contract for something more than it might have been able to to might have been liable for and this particular instance what you have is a situation where those foreign sales were not actually infringing isn't that right the completely extraterritorial sales would not give rise to a legal injury so for that extent that's right but they can be counted when they get the inducement liability were the customer actions in san jose california using the claimed method on simulators side by side with the people trying to sell those simulators to or sell the chips to them so comment which says quote significantly once one extends the extraterritoriality principle to confining how damages are calculated it makes no sense that the action respecting the product being used for measurement still think that there is a distinction here and that is again that that there was indirect liability that was found in cmu and i'm also concerned about the basic causation here i mean when original foreign seller not precisely your honor when there's importation they become qualified to be included in the measure of damages if the factual record permits that and and so to address causation you know your honor georgia pacific factors one and fifteen bakin the causation question and when there when there is evidence supporting the jury verdict under those factors that's already intrinsically taken care of causation because the prudent business person under factor fifteen would would select a measure of damages that makes sense for the business purposes and in this case the measure of or the measure of of a license royalty base in this case the license royalty base quite rationally could have and did include the the chips that got onto united states soil because by doing so you exhaust the patent rights of those ships and therefore then i could i could understand the point and i now let you go on after this but i but if you it for instance either got an inducement verdict or you had claimed contributory infringement and there was only one possible use for this for these chips and you knew and they knew at the time th focus of congress is the list of today if you will look back to the types of activity with guard to the unit that can happen under two hundred and seventy one a and a c m you analyze the peer statutory interpretation question importation into the united states is included into seventy one dollars a kind of reverts back to the territorial scope of two hundred and eighty four dollars so it's a measure of damages question once liability is found then then you look to the hypothetical negotiation which  all the causation you care about and if as the jury found the hypothetical negotiation on comparable licenses would result in this rate and base then everything everything should be fine so that's just one final point and that we actually  cmu case as a blueprint at trial when we asked the jury we actually asked the jury to reduce the award from one hundred percent of global sales just one rd of global sales so we asked them we guided based on that blueprint to take out two thirds integrations just didn't preserve a motion they didn't preserve jim i'll challenge to the jury award in the st place and the reason for this it's quite apparent they didn't present the jury with any alternative calculation during trial and we will we start the macros decision in our briefing this is a waiver under regional circuit law and i'll just ask the rhetorical question how can a party tell a court that the jury's calculation exceeds a maximum without having st told the jury what the maximum is your honor we believe that award in cmu itself was entirely based on direct infringement in other words the award knew was not an inducement award it was a direct infringement award and in fact it was based on quote unquote sale cycle infringement and that place in that decision says that had there been separate counting of inducement damages that would have increased the award the reason i bring this up is because it makes it even more clear that there are facts line of one for one with c you in the sense that the award in this case was a direct infringement award just like c m use and there's really no true factual distinction there so for these reasons your honor the current ask that this court reversed the jamma ruling restore the full jury award and remained for further interest and ongoing royalty proceedings and since i have about a minute left in my opening i wanted to raise one point for your honour's to consider if that's alright while you hear from my colleague on the cross appeal and then i'll reserve my that's the important language the intended claims overlooked by my colleague in all of the appended claims your honors have the phrase of ace quotes which having only three terminals putting all this together this means that you can have an only three terminal switch construction because we view that as the dispositive issue in this appeal and i will address the column one in column fourteen excerpts that the council referred to but i that actually is not the place to begin the place to begin is with the plain and ordinary meaning of the way in which and it doesn't get any more plain and ordinary than the word only only means only and that really disposes of this appeal it doesn't mean it doesn't mean five it doesn't mean extra terminals connected in some not connected in the particular way it means what it says that language it i mean i don't think the judge just agreed with you that only disavowal he in fact quoted sections of the specification the talk about how three terminals are preferable to four and how there are advantages to having three terminals and so forth  the current argues in its brief that there was some evidence our devices didn't have a th terminal but that in fact is not what the evidence was at trial and indeed their lawyer never actually really made that argument to the jury and judge chen who presided over the trial and decided to jam all motions accepted the fact that our devices indeed had four terminals the issue was whether the th terminal was connected to a power supply you really don't have those facts here those cases involve situations where the specification uniformly and consistently uses the phrase present invention to refer to a feature in the same way throughout the specification i would direct the court actually to but i won't get around the fact that that in the preamble that it starts with the phrase  having if there's a th terminal that terminal being connected to a power supply i think there's only the one counterexample here honor and that's the column fourteen in indeed the one of the i think most powerful points on this issue is the spec only shows three terminals when it talks about but it uses the phrase only three terminals it consistently shows and describes only three terminals  forty five dollars which is talking about the prior art by the way so he's saying so it can the patent is saying non inverting switches which comprise only three terminals are well known and widely used in the art so this is not the invention this is the prior art ok and then it continues non inverting transistor switches which comprise only three terminals include a st terminal connected to an input signal a nd terminal connected to a ground and a terminal connected to a loan that's it they have three terminals not a th let alone a th not connected in some special way and so we don't see how this actually i'm interested in going back to column fourteen that paragraph at the end of the specification you characterize that as a present invention type paragraph but it seemed to me and i think  may be broader than the specific invention clause cited in the claims but it refers to the present invention as defined in the claims and that language seems to me to undercut your argument that the language in the specification may be broader than the claims could you comment on the yes judge price and i think this this boils down to whether the court is trumps the the repeated and consistent contrary use of the plain ordinary language in the rest of the specification and the claim language and the plain ornery meaning of the claim language which clearly says only that yes my question this way is there a way that you can setting aside simply saying it's boilerplate and therefore should be ignored is there any way you can square that language with your proposed claim construction well yes the most obvious is that if it's for in this section and column fourteen doesn't use the word only whatever it's talking about here as being within the scope of the present invention it's not referring certainly it certainly is established that not not the the claims doesn't have claims that actually get issued a patent don't have to cover every embodiment disclosed in the abstract general matter but the question is why that last sentence doesn't foreclose that claims or have claims or or at least reserve the right to submit claims that would have covered the broader and body mind but that's not those aren't the claims they wrote you know the main the patentee has total control over what they claim and how they claim and what language they use and you know there's plenty of cases from this court that say you know what the spec has multiple different embodiments some are claim some are not and when the claims use in their in their what does the supreme court's decision in western do to this analysis i don't think it has any impact your judge o'malley because that case turned on the factual finding that the domestic infringement caused the foreign loss and and here there's not even any allegation that the you know six percent or so of power integration sales in the us caused any carnegie mellon approach instead and they did the problem for them is carnegie mellon turns out inducement they this very trial presentation turned on into cement they tried to prove inducement and they were unsuccessful in doing so have there's evidence of importation in the record and they wish that this were a carnegie mellon case it's it's not a carnegie mellon case and on that issue it's the courts discussion of but isn't it isn't it true that that when those sales occurred the foreign sales occurred that everybody understood that the types of devices that then would generally get a large portion imported united states it certainly was understood that some portion would be would end up in consumer electronic devices in the united states that's true but of course inducement requires a whole lot more than that and including those chip it like that of damage in space and it requires more than that in and here there is no there is no finding of inducement and it whereas in carnegie mellon that was the central portion of the analysis the the importers there were the rd party customers and carnegie mellon patricks excuse me marvell was the defendant had induced and had been found affirm is the inducement part because the act of an importation is a direct infringement by the end customers and if you look at the opinion eight hundred and seven f rd in any number of places it's very clear waived any ability to seek a lower images amount because you didn't present a different theory to the jury well we so we covered this in the briefs your honor it's their burden of course on damages display which is a case where the defendant did that did just that didn't put on a responsive case and pointed out that as a matter of law the award that the plaintiff got was legally flawed and had to be set aside in the court said that's right you don't that says specifically says there's no requirement to argue to the jury a an issue on which the arguing party has moved for jam all and subsequently renews a things to the jury not argue certain things to the jury but the issue on jim all at the end of the day is whether the judgment that you're challenging is supported by legally sufficient evidence thank you i'll give you three minutes for a bottle since i power to do that we don't dispute that but it must must live with the consequences of the trial risks that it takes and in this case the consequent under the mat toast decision which i didn't hear mr shurkin bought but under the mattress decision in the  circuit that means that one has its hands tied about presenting an alternative calculation that had been present to the jury and then moving backwards a little bit still on the topic of damages what i heard from mr shirton back was of the district court decision which indicates that the underlying direct infringement that triggered the inducement liability was as i said in my opening which was the customer's standing side by side with the sellers in santa clara california while they were performing the simulation testing the quote unquote sales cycle infringement as described in that fish and there's nothing in either the district court or the appellate decision giving a whiff of an idea that the importation into the united states with the liability or injury measure now as to western gecko what does that do to the analysis western gecko came out later by a year or two after cmu but western gekko is not directly analogous in the same way that cmu is absolutely directly analogous ok and very quickly just on some of the infringement issues i was very surprised to hear from mr shurkin bach that he continues to say that that we patent column fourteen that's not a boilerplate present invention statement that's a specific example of an embodiment followed by a exportation that this involvement is considered to be an intended to be within the scope of which by the way all the independent claims have the only three terminals language and always have the very last point i'll make is i did not hear any attack from  yes the lawyer made that statement in argument but that's not evidence the only evidence on the issue is that our expert testified that a th pan is an xterm connection like all the other pin inconsistent with column fourteen and a critical respect column fourteen says that you can have you can have a th pin that is connected for power to provide power to the chip that is connected for the construction is the opposite the construction says you can't the th pin cannot be connected to a power supply so even if you want to give this phrase in column  fourteen our view on do wait it doesn't lead to the district court's construction in fact contradicts it wouldn't go to a construction that would be even more unfavorable for you well not necessarily because then i think your honor we're in again and i keep coming back to it has to be weighed against all of the other uses of present invention and all the other disclosure that's in the specification in arriving at what the clean language means ok again we're we're construing the phrase having only three terminals in the claim we're not looking at all the references in a specification and saying well gee if you look at all of those and we were jeff we were drafting claims couldn't we draft some claims that were broader than only three yes you could you could draft broader claims that would be supported by the spec but that isn't what they did and again i come in the claims you know all such variations and modifications trumps that that statement can trump somehow the plain an ordinary meaning of the claim language consistent use of that plane or meaning in the specification i think you counsel thank you