my name's charles walker for the appellant trans ocean and in this case this court has already ruled on all the relevant questions of law on the first appeal in favor of transaction the jury then decide in favor of trans ocean on all questions of fact despite that the district court in her judgment for maersk and in doing so ignore the mandate of this court in the role of the jury this court should reverse the judgment again in that the simplest path reversing the judgment is focusing on the second the other considerations the when we go to the secondary consideration it seems to me that your case concerning commercial success isn't that struck and i say that because my experience with this particular factor is that you look at increases and market here increases and revenue so give me your best shot as to why you satisfied the commercial success and certainly there are indications of increase market share the testimony of the expert mr bratt testified how in the early days there were thirteen rigs that will primarily trans ocean built rigs but by two thousand and eight of over about third of the ninety nine rigs that were on order to be constructed for the dual activity rigs in addition you look to the commercial success  looking at the marketing of marriage which in their advertisements for their rigs they primarily describe the rig floor which include all the elements of the invention as innovative you also have examples of commercial success in this through the premiums paid by customers for the dual activity features mr braddock also testified about the example to anadarko contracts they were signed on the same that's not the end that doesn't seem to be a traditional market but if you're looking at the traditional commercial success we've seen through the testimony of mr braddock that this idea of dual activity has increased its share in the marketplace over time we also have testimony from maersk own marketing people that they went out to the marketplace and their customers and some of the customers demanded dual activity which was part of the reason  if you look at the most recent case the min case from the last month or so in which it describes how the facts focus isn't on the prima fascia case you have to look at all four gram factors in this case in the first appeal there was because there was a specific finding that there was a prima fascia case of obviousness and then in light of all the secondary factors not just commercial success the licensing the copying  in the industry that that trumped the prima fascia case of obviousness and as a matter of law of the district court could not hold the patent is obvious and on and we're now set in the same situation our case in this case yes hold patent as obvious i don't believe that we have i can recite a case in which there's been a finding that a prima fascia case of obviousness was found and then secondary considerations trumped it but at the court and mentioned recently indicated that's procedural now says that comes from the p t o that's not appropriate for infringement analysis you're supposed to look at all the factors together and as the supreme court told us in graeme the reason why you have to them all together and you look at the secondary considerations is to prevent the court from finding the invention reading the invention into the prior art and that's what's happened is case when you look at a vacuum if you look at porn and one in a vacuum you can with the benefit of hindsight finding elements find a motivational way to combine them but then when you look at all the factors we look at the secondary considerations that provide you with a new at new op look at what born in one teaches  year period that's correct that is any evidence of a tritone tail well there is evidence that no one in the industry was building rigs for several dea before trans ocean build this for free in part because the cost of construction and increased and the rigs rebuilding rigs from five ten years earlier would be too expensive to demand th day rates that were currently in operation and the only way to build a new rig was to increase the efficiency and that was the goal the inventors creasy efficiency by forty percent and that was the task at hand and they came up with this not in this case in some cases they may be problematic when for example the amount paid is some portion of the nuisance cost of litigation here we have large sophisticated companies agreeing to pay ten million to fifteen million dollars upfront plus millions more per year and that's indicative of the value of the technology not of a sort of discount based upon fear of litigation a nuisance costs that's the reason why in some cases licenses can be the best evidence of damages in this case the licenses for significant amounts of money can't be discounted by some sort of litigation moreover the question is whether the substantial evidence to support the support the verdict which is a and now says the district court didn't even know to take there is a presumption of harm once you have infringement there's a presumption of harm to the patent mean it's right to exclude and the only question is whether there's sufficient evidence in this case we have not only the licenses but we have the testimony of the general counsel of trans ocean who said after getting together a team of advisors there standard license was fo case the burden of proof or the burden of production of this on trans ocean we came forward with these licenses and so there is an inference that value of the claims in this suit is the same as the as what's been part of this license otherwise no license would ever be indicative of damages because no one ever sued on every claim in the license in the license in this case it would have been then attempted upon marriage to come forward with how the scope of the two points in this case they please the court as the court has recognized the remaining factual issue for consideration on remand with secondary consideration and yet the district court's failure to instruct the jury on the fact that gran disagreed is that trace ocean had the right to come into the jury and argue that the scope and content of the prior art the teachings of the prior art the motivation to combine were contrary to what this court that already held in trans ocean one that was why the case certainly the jury could be told or discloses this dual drilling once closed as this transfer of type there's a motivation to combine that's already been established secondary considerations was properly presented to the jury and but where we are concerned is that the jury did not have a sufficient foundation an understanding of the prior art in order to properly assess the nexus of the did when you got to trial and afterwards i would say that there was a continuing dialogue throughout the trial as to how the court's decision of pri obviously should be treated advocated the view that the jury should be instructed that these factual findings and determination said already been made and certainly presented with them so they could factor them into the obviousness analysis along with a secondary consideration as evidence the problem was judge hoyt decided that he would let this go to the jury and he would deal with it afterwards as a matter of law which is what he ultimately did it did create correspondence tying the secondary considerations to the patented claim to combination remember that place combination here is combining dual drilling which is already prior art and all the advantages that came with that and  building type transfer which was already prior art and all the advantages that came with vats the problem of the secondary considerations evidence is that none of it is tied to the advantages of combining those two things and any any any advantages that were not to the motivation to combine to cry it's not your honor because it doesn't speak to the conversation it's clearly in the paddock leaves it to the the articles that were referred to in the record deal with dual drilling which is horn events that deals with a number of events in the drilling industry such as a helicopter landing on a on a on a on a on a platform such as the explosion on a rig a whole bunch of things and that particular reference i think they are referring to week you know not a nobel prize for drillships and it's also emphasizing the fact that these still ships are new they're big and they're able to go out of deep water and that's not a characteristic of the patented invention either i would like to address your honor's point about coffee because i think you said something about emails and i'm not at all sure what you're referring to the only copying evidence in this record is happening evidence is not worthy of great probative value particularly when it's here the only thing that tr say it's talking about the competition that says a good example of dual activity is the chance of some discover enterprise it also says size is a very big factor when you go into deep water and there's a good example of keyed to the alleged invention which is some combination of two pieces of prior art and very very predictable results if i could address the damages point that was made i would like to touch on that three plea because this is the first time i've heard that there's a presumption a farm where there's infringement i think it's the the patsy's obligation for them to prove damages and when i just have this happen here the case law is clear entitled to fifteen million dollars for that and they base that on the upfront fee in a series of licenses that they offer to other people who are willing to take those licenses to avoid litigation and to have worldwide rights under fo include apparatus claims and not the claim that it was transocean spurred to show number one that it was damaged and number two it was it was their burden to apportion the damages such that they were commensurate with the alleged act of infringement the offer for sale the contract and we don't think that they did that and we think judge white was entirely right in ruling that the evidence was insufficient in that regard so that's our position of damages  i'd like to briefly address the infringement question if i could your time i think your honor this is an infringement by by contract theory that's the question that was ultimately put to the jury the jury was asked that could result in infringement within the united states it was the extraterritorial issue that was addressed in the prior opinions in the park and say contrary now the prior caon did have include a statement your honor that said there is no dispute that there is sale here and it went on to deal with the extraterritorial issue we did very much dispute that and we brought that to the court's attention numerous times including a petition for rehearing which the court received resigned and so that's a position we've always maintained as a matter of law i think maybe i don't want to misstate the exact that's but certainly the the it's only law of the case if it's discussed in the court's decision and forms a fundamental decided and they should be respected in the lower court and that this court is are decided the privatization grant factors should be revisited on the sale issue this court made a statement that it was not necessary on the issue of religion it's really not an issue of whether one secondary consideration has substantial evidence question is where there is substantial evidence for enough of them to show that you cannot as a matter  do i look at that discrete fact finding as offering some degree of the support that it's well this court has already looked at that in the first case on a lesser record in concluded that the evidence for certain summary judgment was more enough to say that at merrill all if you could not find it patently obvious and so now as we come from the trial we not only have the evidence that was presented on summary judgment but additional evidence additional testimony from the inventor's additional testimony from we essentially said send the secondary considerations to the jury and they say yes case over the last case  that was what was done because what was said is that as you we have to look at these findings of fact it wasn't just the district court nor the secondary consideration the summary judgment which it did but this court said that even look assuming that you look  secondary considerations there's enough questions of fact there that is resolved in trans ocean saver which they do some are judgment in which we must now do at this point that it was he recognized by your answer a minute ago was it's a different record you know  the record difference between what was presented or proffered as going to be proved during summary judgment and what was actually proper trial so somebody has to do an analysis of all four ram factors cumulatively maybe they can review whether or think it's possible that your evidence could've come in much weaker than what you proffered and as such it wouldn't overcome the crime of education even if the jury concluded yes you did prove a smidgen of commercial success is possible but not in this because the documents we had on summary judgment came in at trial we had additional testimony of you better sleep in the experts to provide additional testimony on that but just our saying what you came up with was actually stronger than what you correct the evidence and discussed in fact marriage knew about these pans before receive the letters and was there an argument at trial that curiosity over marking and whether or not there was marking or whether there was actual no sufficient in looking into like most favorable trans ocean was more than sufficient notice for the for the statu