erroneous determination to use the date of the original compensatory damages judgment as a date from which to calculate oestrogen interest on its revised enhancement when and so actually for you the questions i have don't seem to be on your l so let me ask you a little about that argument which is one i think it's clarified and read but i think you kind of agree in greece so my understanding from the briefing and you can tell me if i'm wrong is that you would agree that the sale of the classic products even if it occurred post litigation would still be covered under the willfulness determination of the revised products would not well our view on the order  correct and you know my position on that is that with respect to the classic product there is no conduct that's being cited to during the course of the litigation that would you agree just and in combination with the court's post you know the ruling on a matter of law we presented you know remedial actions and things like that to the cork w c s market that those were irrelevant because of that order and the court agreed in a footnote saying that he was going to consider product after the date of the suit on their own cannot possibly warrant exorbitant punishment that was leverage under i p s so this seems to say that your say classic products sold pre  me so if you're disagreeing with me that this is if we agree with you on the import of the summary judgment which is an open right left and right that we are simply talking about the post litigation  my view when you review the totality of the circumstances are against against the revised excuse me against classic product sales bosu there should have been an enhanced ok but with respect to revise could you have some rough number of what percent and i don't remember the numbers i'm sorry your honor i don't have that number in front of me but i'm sure that's within the original judgment and you were you were appellant last time i was we work and i think you said the undisputed evidence suggests that about fifteen percent were about two hundred and seven thousand five hundred and ninety seven of the units were revised classic and revise  three hundred and twelve thousand dollars worth of enhancement attributed to the revised classic correct  same testimony that this court had said the last time was in a political to this review that i'm sorry that's right and i find it troubling where the were the very next question asked of the witness was you know is it to avoid infringement and he acknowledged that was the intent and i believe the district court was trying to suggest it was otherwise certainly wouldn't make any sense even if the revised process was a remedial attempt what are we to make of the fact that your current continue to sell a classic product well i think you any more classic products but they had a large inventory various sizes various finishes and they wound down that inventory and they all the customers were switching to that makes that that doesn't excuse the infringing concept right the damages shouldn't be assessed but the question is whether that is practices something that warrants treble damages or merely treble damages and i mean on the assumption that you knew this was infringing it how does it even an excuse at would not accept that it's something i don't think at that point in time in the case i p s believe that it was infringing i think the redesign was an effort to try to further distance itself from the claims and further insulate itself from further  just said you know if you if you didn't think the classic product was an infringement why did you redesign i think again i think that was a smart business practice you want to further it yourself the way you remember the revise what i smarter business practice to stop selling the classic of this was being resampled i think and you would leave customers without an option or they'd have to go somewhere else you might be i don't think that's exactly what the the district court set up a summary judgment and all indications after that are that that's not what that means or the court's heard on summary judgment our recognizing the court denied summary judgment  it wasn't granted the court said that has to be objective based on the mentor case that post litigation conduct wouldn't be looked at the objective prong based on mentor because we did not file for a preliminary injunction closed litigation conduct would not be considered now what happened since then the jury was given a question on willful infringement as to all the the table for the jury to be considered as confirmed perhaps by your response to the jane jamie your opposition to jail i will on this after a three day why are they talking about those that occasion misconduct and if you look at what the district court did in addition to that as to the products that were sold after the verdict in a medium period the judge enhanced that as well if that's inconsistent with saying nothing after the verdict could be considered for willful i think it also puts the focus on the wrong issue which is the finance minister and there are plenty of them handsome factors after the filing of old occasion that can be considered made the exact same argument that their conduct could not be willful as to the revised classic because it was after all that occasion was while they made that identical argument and this court  know twenty one right i'm at that time that's where we were hale hadn't been decided the court said as to the objective problem that we were going to look at past the political action filing well as the court's statement about we didn't follow one injunction so you would look at that conduct and by the time we got around to it handsome and that was recognized so we still have a willful infringement finding as to the revised classic that was about one in which case the enhancement for those units would be a one dollar fifty cents per unit or about three hundred and twelve thousand dollars should be on that amount yes it would be fifty just to get a sense of the scale to be about what we're talking about fifteen percent of the total which is a and there is no violation of the mandate was left open for the district court to consider the factors and to take for example the copying factor in the court's st opinion it had only a paragraph that mentioned the culture of copying and this court said that it doesn't really sound like enough but it didn't foreclose the district court from putting that actual copy in and it did them on remember it wasn't just the culture of copying to these products they did not have a good faith belief and it was shown throughout the three and a half years where they continued to infringe including selling the classic product after they had the revised  right after that and the court recognized that later on because it only dealt with the objective prom that had been overcome group by him the concern is frankly that you may be right about and i would say there was no such understanding and the way you can determine that is st of all look at the jury instructions don't say anything about look at the jury verdict which also doesn't say anything about  i'm sorry on the jury verdict form was listed the two hundred and seventeen and there was no question about that that was introduced after the liberation it was one of the two  ok well st of all that's i think that's broader than what anyone would have understood because if you look at the district court's statement on summary judgment it relates to the objective problem and also it says yes it's part of the same conduct there really is no difference because they made what the court found was a trivial change just to change the museum's perception i they they seem to can see that in the last appeal and i thought some of their statements again were to that effect but from some of the portions of their brief the looks like they were challenging the classic as to any time after the suit was filed and then they try to wind down and sell the product but that's the only contact we're talking about there's many other companies in the united states accused of had infringement that do the same sort of thing are they all wanted and reckless patent infringers at the time in which a price for being wound itself using a redesign product and then not only do that but then try to use that redesign product as a basis to say we somehow were trying to conceal infringement and then after this court's mandate that it was you know seen as