please the court robert hearkens for carousel investments carousels a family owned business and charles and euro villa bitch the owners of the company are here with me today their father who is now deceased as the named inventor on all four they they may be life but they are if they are there mirroring the end of their life expectancy the right at the end of this point the thing that makes this case unusual is that the accused the claims are all consistent with that embodiment there's never been any factual dispute in this case at any point and it's admitted thoroughly throughout the opposition brief in this case that my five devices are putting cars travelling on the roadway in traffic they have to work in traffic they're tested for all conditions of traffic from zero mph up to eighty mph they were tested in ten much volatile areas thousands and thousands of miles nevertheless there was a judgment of not infringement and that judgment was based on elements that were added they were not you will not find them in any claim asserted in this case even worse the basis for this judgment was something that th entered really for the first time after the trial was over and it was that it was a version of the claim construction that was never provided and and contradicts the patent and it was provided for the first time in the denial of the j mall  about is before us first it was and the rule fifty motion is really a separate item because if there was an injustice done in this case or there was an error in claim construction that was done to justify the  jury verdict in this case there are two bases for it either can result in a new trial under will fifty nine or sixty and it's still a claim construction issue or under the ninth circuit authority there is in it is true a fifty a motion was not made on on this round at the close of evidence but the ninth circuit authority that we have cited indicates that there are is an exception in the event that there is a missing fifty a motion that the ninth circuit holds in this is the united states versus thirty three and a half acres case and the e e o c vs go daddy case also the padgett case that we've cited that in that event fifty motion is still valid still appropriate but you have to use a different standard the exception standard is that you have to show plain error and manifest injustice basically that there is no evidence that could instead of substantial evidence you really have to show there was nothing that the jury could have relied upon to reach its verdict so even it sense this is a claim construction  issue and it's about an added element that was and that has nothing to do with the claims in this case it's still appropriate because if we're right about the claim construction issue and there was no evidence in the trial of the appropriate claim construction then we say we are still all in our favor of infringement so what happened here is that the court had to fold indicated that first it added a requirement based on subject matter disclaimer ok that's what so there's two items regarding that claim construction the first is in the first instance who did we waive the ability to object to the subject matter disclaimer finding that added the phrase that's not in any of the claims that the accused device must travel with traffic at a rate of speed that is comparable to the speed of the traffic that's not in any of the claims that the judge help but that was added and in fact there was no waiver of that point what happened in that case there was no further argument it was just submitted on the tentative then in the final after that point there's no further human rights if you want to have for the argument point right at the oral argument we put a further argue promising counsel said actually your honor i have a problem with one of your terms and then went through the next several pages write your transcript and argue the claim construction point with the judge but you will remain the position at that time was that we had no further argument to make it we were just submitting on the tentative that's correct what happened after that is that the court that the court did i would say contractually when you look at what happened the court did not believe that we said we agreed with the court's ruling because after that oral argument the court issued its final thing construction order and at appendix fifteen the court says the court rejects plaintiff's contention that this portion of the specification is merely describing a preferred body that is the court didn't say well based on what you said at oral argument the plaintiff agrees with the tentative the court actually ruled substantively that it disagreed with the position that we had staked out in the case we said in our papers this is just an embodiment it's not subject matter disclaimer the court said you have anything to say about this we said we submit on the tentative which we've cited in california practice is a neutral statement we're just not going to say more on that point and then the court actually rule rejected our position or our briefing so we don't think there was a waiver but that's just that's just the first part because even if you take even if you agreed with that subject matter disclaimer and we believe it was incorrect because there are other settings that don't limit us t that still doesn't that we think we still would have won the trial if that if what had happened was that that phrase was interpreted to just mean what it said that the device was designed to move with traffic at a just you put it in the car and it does work it works that's all that my face do it's exactly the intermediary device of the patent it takes this these signals from the base station and it is the thing that transmits those signals to the individual mobile units and that that's what the patent claims are about and that's exactly what it might that's all of my fight does and we said if you put that in a car of course the car moves in traffic at the rate of speed of the traffic and they said no it has to do more like track it or something like that in the ruling in opposing that that motion and rejecting that summary judgment the district court correctly held is that if you were going to use that phrase it did not require more than putting in a car and i want to direct your attention products were designed to operate while travelling in a moving car is insufficient to satisfy the adapted to configure to claim limitation but plaintiff correctly notes that the specification of the expressly describes an embodiment of the invention where the moving base station is moot by an automotive vehicle traveling on a roadway then the district court at three ninety six cites the federal circuit authority saying as a claim construction matter it would be inappropriate to require more than putting in a car on the roadway because that would read out a preferred embodiment that was a claim construction position that the court ruled in the plaintiff's favor that at trial when the evidence was all said and done there was no evidence there was no evidence that contradicted that it all agreed and it's in the defendants in the defendant's brief that in fact my files are in cars in traffic they moved traffic what happened after that was in the j mall the district court changed its construction for the first time we've never heard this before and said no now i'm going to find that maybe that more is required that actually you have to you have to know how fast things are going to have a knowledge of speak that's embodiment is if you put it on a train going along the side of the road you set that train at sixty miles an hour you have no idea how fast traffic is moving but the pattern says that's good enough because that would naturally capture enough traffic that's going to be moving at high speeds without knowing how fast anything is moving so the only way to get this knowledge of speed that you have to track traffic or know how fast traffic is going or know how fast my fight is going reads out at least two embodiments it cannot be a correct result and the district court recognized that before the trial but then when that was the only evidence left after the trial the district court changed its claim construction eroni officially and we asked for a reversal and that given the correct claim construction evidence only can't structure grease and provided a tentative two days before giving everyone plenty of opportunity to be prepared for the claim destruction and then after a court or argument from both sides it brought a final which was the same as the tentative but that's not where it ended the seven more months of trial and over the course of that sec seven months there was a motion for not infringement based that we filed at the defendants and at that point this issue became crystal clear we knew what the court's paper structure was they knew the what evidence we were going to present we were going to present that these devices are just like your cell phone they're testing to move in different varying speeds but they don't move at a rate of speed comparable to the speed of traffic which is essential to what the inventions about where the invention is not about mobile why five devices like your quick so it's a little more secure a little cheaper and it separately and you use those devices a hotspot they're not mobile base stations are moving traffic a rate of speed comparable to the speed of traffic to help you know facilitate multiple phones using those as based actions and so what i want to do is return to what happened which is at the at the motion for summary judgment it was absolutely clear what the current structure was and what evidence we were going to present and what they were going to present and what they argued to the court was this is an issue of mobile bay station a movie traffic at a rate of speed comparable to the spear traffic for the purpose reducing handlers the jury laid a conclusion they hope they heard the evidence for five days they went back and they deliberated and they said no infringement traffic around the freeway at a rate of speed comparable to speed traffic and what the pattern says well is sort of using pain tracks and conveying device you could use a car that has nothing to do with  ok thank you side well i think you can see some of what happened in front of the jury when i was with the court just got up again and said that the preferred embodiment is not a device that is a mobile device that serves to sit send signals between a base station and mobile units but is instead a train station circular device that has to go around and around a track which is one embodiment that was claimed in patterns that are not in this case and attempting to limit the claims in this case to a train that goes around in circles when in fact there is another embodiment in the pattern that is claimed to put the device on the car is exactly why the jury got misled into finding something that was incorrect and the problem was it was based on an incorrect claim construction that said you had to do more than put it in a car on appendix three ninety six the district court recognized saying you have to do more than put this device in a cart would read a preferred embodiment and would be a clean construction error the just report said that before trial but when trial was over in order to justify the jury result there was no other way to justify it the district court changed that construction for the first time and said now i say there it does require more than simply putting it in a car you have to do so you have to know how fast things are moving but that's exactly what the dischord had previously recognized would read out the  evidence that was submitted at trial it i mean this is the course right that this was all laid out before the trial that we said yes of course are these my five devices don't know speed and if that's true grant the summary judgment because we don't have that evidence but we definitely have evidence that these were put in cars and tested and all traffic conditions to work with traffic the way that it's said that you have the base station it's admits the signals that's a hot spot that's what the body that was the court held that we were correct before the trial but when there was no supporting evidence after the trial it changed that construction that's inappropriate we had no opportunity to challenge that construction until the first time it ever came out which was after the trial so when we talk about the claim construction that there was a discussion was there waiver one thing that you have to understand is that was just whether or not we had to move with traffic and all that moving with traffic was put in during a claim construction order even if you grant that that was let's say you grant that that was wa don't think it was but if you do we met that requirement we showed that this was put in traffic using the same embodiment from the patent at all speeds of traffic it works in traffic only after the trial did we get this new claim construction about knowledge of speed that and if you apply the correct claim construction in this case i think that's a correct statement we would agree with it because they do in france the patents and there's no evidence to the contrary thank you thank you