have four cases this morning the first one is corporation vs g b s care council ready to proceed please come forward this morning i've course think i could win all of them your honor but i thought i would the ones that i'm pointing to speak about are the ones that i think are both the strongest and most important that's what we want to hear thank you for the first one is the district court's creation of effective impurities loophole in the claim construction allowing the plaintiff in this case to satisfy the americal proportional requirement of the claim of a consisting of cla as if the court hadn't said impurities normally associated with a component of a cloned invention are implicitly adopted by the ordinary meaning of the components themselves how is that a loophole that is term consisting of specifically it's in a section called the title is consisting of in quotation marks the entire discussion is about whether a particular chemical in a particular mixture is an claim preceded by comprising isn't i don't think so your honor the comprising claim in this case requires a particular numerical proportional requirement for the flame retardant to be in the  ordinary meaning of the term doesn't doesn't depend on the preceeding transition phrase as it i think in in this case it does or at least the inclusion of impurities does because this is a place where you actually have to have there's no dispute that the requirement is for linear molecules to be the evidence of appeared to be that it made no difference whatsoever i don't agree with that your honor i think that the evidence show that it makes a huge amount of things that are wouldn't be fair to say that just about every chemical composition necessarily has some curiosities and and that's probably correct correct correct that is probably correct your honor but  concept that's the case but the claim requires a particular proportion of linear molecules and it's fine if there are other molecules that are branched as long as  construction argument that your infringement argument about whether there are not subsist linear molecules as opposed to the branch valve kills it on that isn't there differing expert testimony of which the jury could have based it verdict i think i think it's both your honor i think it is a claim construction argument because i don't think that for this kind of limitation in a consisting of claim where you have to get up to a certain point that retardant polymers was your branches could hypothetically be made doing so confers no advantage to justify the extra cost and effort i don't agree with that and i don't think i don't think they could believe that i think that the testimony was that limitation where you have a specific number that you have to reach and that number has to be linear model q you can't say that some of them are just linear enough the evidence showed that a lineage a linear molecule is defined as being not branched these are all right this is the situation where the term is defined by its opposite the opposite is a branch so if you have a branch molecule it can't possibly be a linear molecule and so you can't say that branching on a linear molecule is and impurity in that molecule now there may be extra molecules that this wasn't all like an argument against their expert testimony and that their expert why assuming that expert testimony is right why doesn't that support the jury verdict on infringement well what i'm trying to say is that the construction that includes impurities leads to absurd results where if you can just say that their expert testified that he didn't know where the line with where is it how how much impurity be you need in order to be or how much branching to do you need for this to be an impurity that somehow gets to count anyway toward the linear molecule requirements as opposed to have been you have been going to make a record just for the record when judge you said you waived that you didn't answer but you raised your palms upward which indicates to the court that you're  a double hearsay document that is clearly in admissible it's exhibit one fifteen it's a how is it not in a business record when fifteen does not satisfy well first let's let's look at the testimony was that they keep these things in the normal course they would do them i think every month that was and that this is one that was made in the normal course i was not of this mystery made by konica and there are reasons to doubt that which i will get into but i think we have to look at the second layer of hearsay as well your honor and also argued it to the court but it shouldn't if it was their only evidence that purported to show any importation of who knows products in the united states at all it was their only evidence that with their experts on the evidence and conduct is only up and the testimony was that they had been doing the same thing for fifty years that konica had been doing the same thing they relied on information from unnamed third party sources with makers outside the country informers retailers they've got that business since the business records it not it is a business record for although i think that it doesn't satisfy the exception and i hope to get to that but but it's a business record as to the first layer of hearsay but the information it's based on came from anecdotal oral statements out of court statements oral not business records of these third parties and they were provided  allegedly two konica congress sponsoring a witness at mid he doesn't know if they're true or not he admitted that he thinks sometimes they are not trip there is they have to show that there is no  trustworthiness in both layers of hearsay and here they admitted they are not trustworthy and this was the only at this got before the jury it shouldn't have it was prejudicial it was the only evidence that should that purported to show and if they didn't those records internally as a business record for the last fifty years the record that was created in exhibit one fifteen was expressly and admitted leave created for purposes of the litigation and the other reason it is fishy for other reasons as well it was not created at the end of the fiscal year as exhibit one fourteen was it was allegedly an update on the fourteen that was created in the middle of conic of this fiscal year and it was created in the middle of comic this fiscal year right but the argument is not correct that this was the only evidence in fact these business records were corroborated at trial in impeachment and in direct evidence that you know did the same thing that's how they kept their business records so you talk to the whig manufacturers they talk to the importers and they talk to the retailers that's how you gather your information and in doing so it turned out it trial that the that of our expert were even slightly lower in the business plans to know that showed their estimates so that was a corroboration internally even beyond getting through the the hearsay exception so these were records that were kept in the ordinary course for fifty years which counsel was referring to is because the expert's report and deposition had been taken well before trial all one fifteen was was an update using the same information was not created it was really just a summary of the compilation getting back to the impurity well of course it was her aided that question is was i outside the normal course that's correct your honor and i yes i suppose you could make the argument everything an expert does and has created so with respect to the fire retardant the testimony from both science was that the patent identifies specific flame retardants the flame retardants are manufactured with this post experts recognise some form of brainwashing that's  insured your own or when you mentioned that in a perfect world we would have thirty i can call recall so many cases where the statements are you know something is round well substantially round because the earth is round but obviously not completely so there's no perfection but the key was is it is your honor also said that with respect to the insurance they had no uni sure east we see some pharma cases where we actually do see language describing the drug company here or something please here do you think that would have made any difference here to the infringement claim that would have been put in if it had  put in possibly possibly your honor i had the analyzed it in that concept and i know those cases because there are some where it's critical that you have a period here it wasn't critical because as jacob  we don't have those facts so it wouldn't be but if it did then i think your question was right to the point it goes to infringement because then you have what we ended up with is a semantical statistical argument and  it just flowed like this the our expert looked at the number of monitors and said if you had ten polymers with fifty monitors each you have five hundred monomers it just ten of those are br so we actually it was very humorous or any discussion in the specification about how you would determine purity or literacy after money how one of ordinary skill in the are which determines which is pure thought there was no doubt and that's why the testimony at trial was that when you read it with this specific flame retardant knowing as a person of ordinary skill in the art would that when you get it from a manufacturer it's going to have some of those  branching that's it said of small significance that you should not have a harsh application of the definition trying to require everything to be purely linear otherwise it's set it in this is perfect just what the court it would relegate the term linear polymer to the status of an ideal which may be approached but never realized and so that's the problem and in fact in that case it said you may have some words perhaps one unit in a thousand in this case our expert will say you might have two units in a thousand but when you say about one unit our expert was closer to the bible their expert was trying to argue it had to be one in billions but that's not what their bible said and dr ellison himself when asked he said he asked for perfection a hundred percent and then i asked him the question ok florrie the bible is different though florrie acknowledges that there are going to be some instances where branching so in the end it isn't that at warst expert to expert and that's what the jury is for let me take you back to us for a minute to the curies issue sure we were all agreed that alphonse go with that did you try the case i did why didn't the trial judge adopt the parties agreed definition the trial judge came up with a different under the law and if you look at floor you give you look at the cases i think is correct on that the key is that it should not or cannot have a discernible fact i think in his mind he may have been looking ahead to what to choose was saying is this may relate more to how you're going to argue infringement then what is an accurate definition well the parties agreed on a definition that included the notion of no discernible effect isn't that right correct but the trial judge did not include that in his definition in a trial judge's definition was those the deviations normally associated with the component of a claim by one of ordinary skill in the art deviation is normally associated with the component of a claim right that doesn't have the same eliminating factor that the card the no i would first of all i think it does an essence because he was looking at a broader scope knowing that both parties agree that when you if you name a specific flame retardant the manufacture of that flame retardant it when it's manufactured it comes with the so he was saying if that's in the ordinary course of what you're receiving it's to be expected so i believe that's why he did it the way he did but in the end the testimony it loosened it loose and they did all that for the jury there was no argument in the end that the jury could have been confused by the judge's definition versus the actual testimony that leads me to a related question i went through the trial judge is extensive  charge to the hearing and the way the trial judge integrated it is explanation of what the law and what application to the case to each of the questions put to the jury that think this is a great way to do it and they looked at us like we had two heads and even in his verdict form he integrated the verdict form into the instructions i've never seen it but i will tell you if you don't know judge police he's remarkable in terms of his own preparation and analysis he puts so much effort into this and i really think in the end when we talk to the jury of course this is outside of the issue here but when we talk to the jury they love that about again branch molecules and linear molecules being opposites in the issue about the construction of the construction is that all it should it says a great deal but i think that's the strong just in the portion that was discuss before i was talking about separate molecules not separate monitors here ron paul branch but if there are other molecules that are non linear than those are you know you can't have all the molecules not the branch that's what i was talking one fifteen was an update of one fourteen the only fortune of one fourteen that was allegedly updated or going completely from estimated numbers to actual numbers there was no update of the numbers that existed there were no you know in spite of the testimony that there were travel records that this was based on they were never found in spite of the fact that they are saying that this is sort of a regular course of business there is no intervening document between two thousand and ten and two thousand and twelve just suddenly this new