the court communicate ask for this court for a new trial because the trial court over the strenuous objections by communiqu permitted citrix to put on a classic practicing the prior art defense at every turn comparing its prior art by the help product against its accused go to my t c product now this court in many cases since the original baxter healthcare case has said that you can't do this that it is improper to tell a jury that they may decide either infringement or invalidity by comparing that instruction but at the end of the case not when the court should have done it when the improper statements were made and secondly it is absolutely not true that the plaintiffs experts it any kind of limitation by limitation comparison of this prior art body help product with the claims in fact if the court turns to the joint appendix citation that shit tricks gets when it makes that claim since i don't know you're on a well yes yes that is the standard of course if any of the limitations are not present in the prior in the queues product the all limitations rule says that there is no infringement so there was evidence put on about that but what there was no evidence on in this case was a comparison of the brother of the buddy helped prior art product to the element to the elements of the claims at issue so there was yes right so in this case there was no reason for any evidence about by the help to be offered to the trial court and yet it was the central focus of the defendant's case and i would encourage the court to look at the joint appendix reference cited by citrix when citrix says that there was a good reason for their expert to talk about bloody hell which was the prior art product they cite join appendix twenty five twelve through twenty five seventeen saying oh well our expert did eight an element by element analysis and comparison of buddy help with the claims and that's why it was legitimate for us to talk about body help in this case and if you turn to those pages you're on your you'll see that they consist of the following one question asking the expert whether or not he had done a an element by element comparison then another question saying well what was the result of that comparison to which he says i find the patent to be valid ok then four pages following that in which he talks about the the similarities between the buddy help product and the accused go to my p c product never once was did did the expert bother to walk through the elements of the claim against the prior art the help product and in effect of course why would they have done that the expert began by admitting that he found that buddy help did not invalidate the claims so unlike the the several cases that this court has heard for in this case there was no justification for bloody hell the prior art product to have been mentioned to the jury can hurting our  sure they can your honor if they have a legitimate alternative theory but hear their expert admitted on the stand and their counsel admittedly in opening and closing that they had no involvement of the case against us under the trial court's claim construction and your honors there is no theory to present to injury that is contrary to the trial court's claim construction trial counsel can't stand up and say well i haven't invalidity theory just in case the jury discards what the judge says the meaning of the claim terms are and i'm going to talk about that no then know that that cannot enter the courtroom because only a comparison of the claims to the accused product and the claims to the prior art under the trial court's claim construction are proper and if the defendant had had a problem with the trial court's claim construction then it should have raised that with the judge and it should have objected and it should have raised it on appeal here so it did not there is no objection by the defendant to the trial court claim construction what was it doing th talking about an alternative theory of invalidity if the trial court's claim construction was not properly applied it made no sense other than as a practicing the prior art defense and in counsel for citrix said when we raised this issue with the court on the second day of trial because we didn't hear we didn't know they were going to do this practicing the prior until we heard opening statement we immediately filed a written motion and the next morning we began arguing this with the judge and  products to the extent the accused product is considered to practice the elements of the claim then so did the r c a prior art television exactly that same formulation your honor was used in this case to talk to the court and to the jury in fact when we challenge citrix trial counsel in explaining his theory of the case to the judge said your honor i don't think there is a practicing the prior art issue here i am i have the right he told judge truly to get up and prove that my current product is the same as my prior art product and i can sit down and i win because either their credit their patent is invalid or i don't infringe he said those very words and that is what this court has said you cannot do that i don't  was looking to see because i think it's quite interesting because if in fact recusing pre measured is doing exactly the same thing they did ten years before the assyrian patent was applied for that isn't something that is excluded by the rules of evidence and so there were some fine lines were drawn in precedent and it would be helpful if you immediate adverse judgment that i am doing what i did change years before compare the elements of the claim against the specific features of what you've always been doing and proven invalidity case or if you believe that that what you have always been doing  claims you can come you can compare what you've done or what you're doing with the elements of the claim in a non infringement case what you cannot do is compare your old product to your new product and say that but they also at most of their case was focused on comparing the two products the old in the new so if you look at the number of pages where they're talking about there the element of the claim that they argue they don't practice very few pages take up that portion of their case most of the case in fact the entirety of the testimony by witness monkey and witness christianson there to back witnesses was about comparing the old product and the new product and as we show in our blue briefs their demonstratives were all about setting those two products side by side and arguing that they are the same that is how counsel for citrix characterized the case when he was talking to the judge and this what he told the jury again and again and again and this court has said that just because there might be a basis  for finding in the defendant's favor if the defendant had not done all the things that it shouldn't have done doesn't mean that the defendant gets a free pass for having done all of those bad things standard to be applied in validity and the trial court got it wrong and the defendant capitalized on that and repeated it again and again to the jury and this court said no even if you could argue perhaps that the patent was invalid on on additional grounds on those improper grounds you argued nevertheless the presence of that improper argument makes it imperative that this court grant new trial because this court said it would encourage cynical advocacy to permit an improper argument to be foisted off on the jury  and so it's not a question of whether it's possible that you can put together proper evidence to show that there was no infringement if their use of this improper practicing the prior art a i mean good morning in the it please the court mark fleming with christopher dodd on behalf of citron judge leroy carefully considered all of the objections that were made in the rule fifty nine motion she did not address the many arguments that zero one did not put into that motion and those are waived on appeal so i won't address them unless the court has questions the main argument this morning depends on the assertion which we heard repeatedly in the court appropriately questioned the assertion was that we argued non infringement by comparing the accused product to the prior art neither in his briefing nor in his advocacy today has mr shanks cited any point in the record in which we argued that to the jury judge leroy who sat through the whole trial and was very attentive to this concern because as mr shank says it was raised throughout found that we didn't do that and that was certainly not an abuse of discretion it was in fact correct or not infringement argument was go to my p c does not practice all elements of the asserted claims and particularly it doesn't have a location facility that creates the communication channel between the host of the remote computers now as part of our invalidity case we did point out that the creation of the communication channel in go to my p c happens in the same way as we had done it in the clean construction issue that is a factual question of infringement with respect to go to my p c anticipation with respect to body help so it's an invalidity argument for body help when as raised in the alternative judge still as you indicated in the event that we lost an infringement it's a practical application of the principle that the claims are applied the same way for invalidity and for infringement i just say it's important also to remember the context in which this case comes to this court the jury was repeatedly told by the judge and by  his own counsel that infringement required comparing the claim elements to the accused product no objection any of those instructions there was a specific instruction judge still as you indicated not to compare the accused products to the prior art when determining infringement and it wasn't just at the end of the trial it came throughout the leroy specifically told mr shank on several occasions that if you wanted an additional instruction he could request one at the end of the trial the jury was also told openings and closings of counsel are not evidence and in the midst of trial and in the rule fifty nine order afterwards found that citrix is discussion of the prior art was always in the context of arguing invalidity didn't affect the infringement side of the case and now because there has been no appeal on substantial evidence it's undisputed that the non infringement verdict is amply supported with all th the district judge was well within her discretion in denying the trial zero one cites no case not one that provided the relief that they are now asking for which is a new trial on non infringement reversing a discretionary judgment by district court to deny new trial motion just because of some asserted problem with an invalidity argument the zenith case that was granted summary judgment the district court there had ruled on summary judgment that the patent was invalid and not infringed and the only reason for it was because the defendant had said we're just doing what the prior art did of course that's wrong that's not a basis for summary judgment it's not a basis for j mall nobody's contending that it is no one contended below that it was we've never suggested that about the point is zenith did not suggest that it was categorically as a bright line matter and abuse of discretion for a district judge to permit a defendant to argue in the alternative to make the argument that was this case i just summarized to say that you know in order averse the district court here i think this court would have to take two steps that are inconsistent with standard of review you would first have to decide the judge leroy abused her discretion in finding that there was no misconduct at all everything mr shanks said about counting the number of pages and what the core theme was those are quintessential judgments for the district judge to make who had a front row seat for the entire trial but second you would also need to find not only that there was prejudice but the prejudice was so severe that it couldn't be cured by the correct unobjective two final jury instructions that judge leroy gate and that would require errant speculation about what was in the mind of the jury at a substitution of the appellate court's judgment for that of the district judge on a court trial management issue so unless the court has any further questions i believe the further points are amply ventilated in the briefing we think this is a straightforward case for a firm it's and we respect case to the jury he told them the only real question is whether buddy help that's a prior art device practices the claims and dr foster dr foster who showed us that he showed us that that from the says is covered by the claims finds its way back by the hill this case was all about trying to get the jury to avoid comparing the product that was accused to the elements of the claim by telling them that all they needed to do was decide whether buddy help and go to my p c were the same and this court has said that places and an improper additional burden on us the plaintiff not only to show that the product infringes and that's a patent is valid but also that there is a difference between the current product and the defendant's prior art product there is no such burden on us that and in this case your honor why should there be a new trial it's because in this case there was no justification to even say the word body held in court the counsel and his expert admitted buddy help did not invalidate the patent so your honor may be referring to is the sometimes appropriate use of the prior art to limit it in a in a doctrine of acquittal in this case to limit expansion of the claim scope when a wasn't before the jury by the help never should have seen the light of day thank you very much or