five that no reasonable jury could find infringement given a proper claim construction as a young court and jury to find that the district court abused this discretion in not excluding the damages expert of  that very well could be the case your honor on the other hand we did discuss doctrinal quibble ins and the judge in the jury verdict being inconsistent because the jury found intrenchments only under the doct discussed otu micro and hopefully this gets to your point but the district court noted that although he gave it a plain and ordinary meaning that the parties were quote diametrically opposed as to what the plain an ordinary meeting actually is and this is exactly the type of case where playing an ordinary meeting is not appropriate according to old to micro so moving to replacement telephone number  it was argued by a pelleas expert on infringement that quote there's nothing in the claim language that says it has to replace something else by definition it's replacement number he also said it just says quote it just says it's a telephone number it doesn't say it has to be a dial telephone number and when he was asked do you have to replace something for a tree placement number he answered no so under the plain and ordinary reading even appellants argue that the replacement telephone number has to be a be a telephone number and b has to replace something else arguing otherwise either ordinary meaning and expert testimony the gist is it all admissible to the topic when it's contrary to what the meaning is i agree your honor given the court's claim construction the court also said when it was discussing the two micro defendants critic tempt to persuade the jury using a century the same arguments used here for claim construction and that providing a plain ordinary meaning construction provides both parties quote equally strong arguments regarding the infringement issue it was made clear that the district court was punting playing construction to the jury and we were left really with not much of an option other than to argue  i'm just concerned about where the line is on two micro construction issues and factual issues that should be left for the jury and it seems like if we push into micro the way you're doing it almost the possibility of having played in the ordinary meaning for certain claim turns on the other hand the experts testimony in this case that a replacement number could replace nothing seemed absolutely unsupportable to even a plain ordinary meaning and i'm wondering why isn't it better resolved at the factual stage that that the district courts are better of with expert witness testimony that's that should be admitted that constrain every term that's disputed that has what should be a plain ordinary meaning if i understand her on a correctly why should we push this so far so as we never lose plain ordinary meaning i believe that the two micro makes a pretty  pretty clear case that if the parties agree there's a plain ordinary meaning or if it's clear that there's a plain ordinary meaning but they have completely different understandings of what that plane an ordinary meeting is than that evidence is a difference in perception of scope not really a difference as to the factual issue this case i don't think approaches that because in this case the parties agree on how the accused features my the outbound call issue and this is a very important one for the three ninety nine patent the three nine nine patent requires handling of an outbound call for an accused infringer to handle it it's undisputed how the accused features work again these two patterns are directed to a process by which a person can  a system can handle a call and this is something that noble biz could do because it was a telecom provider and has access to the telecom lines as shown in those figures at the beginning of our reply brief it intercepts a call that has been made by an originator takes the information and the call takes out the caller id information and puts in a replacement telephone number and then sends an on its way and we've referred to this is a catch and release model it's under spirited that t c m and global connect are nothing more than dialers that operate over avoid her voice over internet protocol they initiate hols or send invites to initiate calls even though even mobile business expert talked about these s i p invites they stand for session initiation protocol invite messages these are kind of like noble business do is simply fill in the information namely they fill in the caller id information if it's custom then it's custom in this from lying put in the rest of the information for the call to go out and send this invite along just c and no will business do their thing because the call is not extant because no colleagues this there simply filling out an invite that would initiate a call outbound call cannot be found as well know if the court doesn't have an objection i'd like to discuss mr hoffman very quickly mr hoffman should not have been allowed to present his opinions on damages to the jury his methods were not appropriate and the evidence he all of the georgia pacific factors were he cited an address to some extent but i would it i would say there i would argue that this is close to the which served case where the court said reciting each factor and making a conclusory remark about its impact before moving on only tells the jury what the factors may be not really how they affect so we have mr hofmann addressing factors or at least deciding factors and then coming up with our royalty number in no way did he provide some kind of starting number that he did actually calculate on and when he asked for a calculation when he was pushed  he referred to he referred to marketing material that touted increase in productivity and basically said in his deposition look can you tell that you have a fifty to one hundred percent increase and you sell your entire platform for a certain amount of cents per minute so if i add a premium of somewhere in the fifty to one hundred percent i should get a sizable increase in what you can what you can charge this doesn't this doesn't really apply using this shouldn't use the the marketing statistics so and maybe i'm moving on does that answer your question about the has urged and are trying to adopt from california california court is that they are parsing the terms they are importing limitations and they are ignoring expressed in the patients in the claims focusing on the phrase and i have no idea what you're saying i mean the replacement telephone number on its face suggests that it is that there is an extent number that's being replaced doesn't it is not your honor because the replacement telephone number needs to be read in the context of the claim it can't actors argument then why don't we need a claim construction because you're arguing to us i counterintuitive definition of replacement telephone number you may be right about your claim construction but you can't argue for plain ordinary meaning when you argue a construction that doesn't seem to have a plain ordinary meaning we believe we can't you know not to because the replacement telephone number limitation these be read again in the context of the claim itself  related precedent because in context replacement telephone number modifies the caller identification data it doesn't necessarily modify a first telephone number and that's where the defendants error and where the california court did as well the lame one i don't understand what you're saying what it leaves the your out of the the claim limitation is replacement telephone number right the finest attempt to parse out replacement and you say if you have the i  replacement you have to be replacing something right but you but the claim terms here the limitation here is replacement telephone number and it's got to be read within the context of the claim itself which is select a replacement number from the plurality of outgoing telephone numbers based on a least the eric code of the call target so in context replacement telephone number modifies the caller identification data it doesn't mean that you necessarily have to have a first original telephone number and that's where the defendants erred as did the california court because that's your position why didn't you aren't you got on claim construction because that's not the common ordinary meaning of replacement telephone number that something that you're suggesting you  simply talking about what this cloning term means and replacement on its face means you're replacing something that exists and you're trying to give it a meeting that is contrary guess i don't believe this country because the whole limitation is replacement telephone number or that phrase and that's going to be read in the context of the rest of the claim limitations and the claim itself which is select for you it's like the replacement telephone number ality not database of the outgoing telephone numbers so again in context replacement telephone number is modifying the call identification data and not necessarily a first number and that's where the offenders air as again mentioned replacement telephone number it was actually even in one of the scenes documents so going back to the that some of the six would make this case distinguishable from the old to micro around the turn was clear and understandable so we're outside of the realm of eon where there had to be significant trial testimony devoted back and forth to what does that term mean that was not the case here and as judge hughes on in on the defense did not object to the testimony that was elicited they objected to their claim construction place they proposed a specific construction which is consistent with the instruction that they're urging now correct your honor in the lower court they did but what i'm stating is that they did not object when they when the expert gave some testimony and in fact the defense illicit much of that testimony was they have to object to the expert when they've already objected to the plane construction because the claim construction was already governing the the case for the trial and going to use utilizing that claim construction and the factual issue that the stand around it how does the system operate as global connect systems are really interested in preserving their objection to the district courts failure to give their construction you know your honor i'm not suggesting that they did preserve that but in response the judge used question earlier about why did you not there is no requirement that the call already be extant and as a matter of fact if that construction were adopted it would fully read out the call originator and body not turning back one is that the case you want that's the case because looking at claim one for example of the clay claim one focuses on the call originator the claim says that it's a system operating in the call originator dependent claims two and four then recites the system of claim one so small the call resonator when the system isn't bedded in one of the carrier network a private branch exchange and a communications device that's in claim to the deep end claim depending claim for also relying on a claim one says that the system is it embedded in it in a corporate phone system so independent claim one cannot be limited to the carrier network a body meant as offense are suggesting with a catch and release construction that would violate claim differentiation under this court's into digital communications case similarly and again just walking through the it if there are no further questions regarding our claim to try should we urge that the texas courts construction be adopted i like to now turn and respond briefly to the arguments about the damages expert mr hoffman analysis was was robust it followed directly the methodology of georgia pacific in fact the defense expert the one that did actually consider georgia pacific actually agreed or found neutral nine of fifteen of the seven factors so while defendants may wish to argue that this was not a reliable methodology in fact mr hope and went through in detail at the considering all the record evidence and going through each of the georgia pacific factors  item concerning the evidence under each of those and getting to the royalty pursuant to this course ericsson decision hit the royalty that he relied on or that he arrived that reflected the value attributable to the accused feature and nothing more he considered what the defense charge to their customers for their entire system so for the entire system it was slightly over three three point two three point three cents for global connect and slightly over four cents for for t c m he weighed that he weighed the fact that all of the documentary evidence in the record that was not refuted a trial was not minimize the trial whatsoever even though defendants wish to say it's marketing puffery it was just advertising statistics they don't have any bearing here  did not carry the day and in fact he considered that this was one feature of many that the defendants offered well to connect only util only ten percent of their clients actually used it use feature only five percent t c ns so he weighed all of than the jury actually found his outages were close to three million dollars us the global connect and just under eight hundred fifty thousand dollars for t c m and in fact the expert for global connect was on the one hundred thousand dollars so order and as the damages verdict bore out here the jury found in between those ranges so there was nothing excessive here there wasn't the type of sheer some eyes or conjecture that the will serve case spoke to rather this case is more in line with tell korea where there was not a a rate put on to the verdict form and the district court who observe the trial observe all the evidence and the fact finders role was able to discern what the actual  was and whether the damages were proper so there was no abuse of discretion here by the district court in finding that the verdict was solid and it was it was in fact supported by legally sufficient evidence ultimately m methodology was reliable he apportion the rate portion the base in and out as well as the property but there are no questions with respect to the damages i like i really have a question try to the status of the execution the judgment we granted largely based on the argument that this appeal to the federal circuit was pending and that the superior court in new jersey should just wait until this appeal runs its course before it picks up the registration and then the new jersey  correspondent and it does not do anything yet your honor the other reply brief was was basically submitted about a week ago and that closed out the other briefing period and we learned from the court the court's clerk that they're not requesting any oral argument will be decided on the papers if there's no further questions regarding the emergency stay i'd like to briefly turn in my remaining time to the california court construction as i indicated the california court court's construction  the california court characterize its thinking that it could be on a rolling basis subject to alteration and revision as the court's understanding of the technology developed so we feel that on a number of constructions or by by way of their underlying basis for the for the construction and it would cut against of course conoco decision nonetheless and under this court's tele flex and z for technologies cases this court can affirm infringement based on substantial evidence put forth by noble this is that the defendant still in french if the california construction is adopted normal then that based on the final construction there's nothing wrong with the evolution understanding and see for noble biz has marshalled the evidence in its a pelleas brief at pages twenty seven three thirty one which sets forth how each of the limitations that are challenge even under the california courts came construction would in fact ok thank you but correct with the exception that there is a lot of discovery pending as well as no business pushing for thirty six deposition of global connect  the context of the patent is really what the northern district of california focused on and i think it does give a very good a very good summary of why it's  constructions are reasonable what should also be taken into account is the prosecution history of the one two two and the one six nine patents where the original claims were directed to originating a phone call and setting a telephone number it was only during prosecution that limiting amendments were added that included the replacement telephone number and handling an outbound call and it is a limitation of modifying information without it out  broad scope the embodiment that counsel referred to in the specification of the patent does speak about this system being used in different places but it's the claims that were narrowed and may not encompass all of the embodiments that are in the spec now with respect to mr hofmann we do argue that there was an abuse of discretion and one of our big problems is that we can't tell what the district court's discretion was because no analysis was provided mr hoffman basically used the black box analysis when he was asked if he could provide a calculation of formal or explain his methodology he said quote it's a negotiated amount based on you know my understanding my experience in doing these kind of negotiation it's not calculated it's not i can't give you a formula that gets you to one point five seconds and this is this is concerning to know that it's just a black box yes the factors were considered but there's nothing that points to how the end result  can say up or down on several factors but unless you know what you're increasing or decreasing the methodology it is really a