maybe i should know it was once a two eighty eight patent in this case i'm concerned about whether we have a final judgment in front of us i didn't see an order disposing of the set claims about the two eighty eight  is under wraps on confidentiality but it doesn't make absolutely clear that the use of that someone else in terms of trying to measure damages and ultimately in determining liability was way beyond the bounds what miscible as a consequence not only should the damages be retried the liability as well and i want to start by taking what may be viewed as a somewhat more provocative position but i think it's important for the panel that they could into account in evaluating the whole question because i know this court has said in laser dynamics powerful and i'll just take the time to read it it is clear that a payment of any sum and settlement of a claim for an alleged infringement cannot be taken as a standard to measure the value of the improvements patented in determining the damages sustained by the owners of the patent and other cases of unprimed i don't see that's not a presumption that's a flat categorical statement from the u s supreme court and i know of no decision in the intervening years that remotely casts doubt on the continuing vitality of that position and if that's true then the entire exercise of putting the eighteenth you settlement before this court before this jury was completely illegitimate that self i would argue a basis for setting aside the verdict in this case and can clarify this why am i right that at least you didn't of jack the other litigation settlements coming in understanding it ok and then i'm mistaken i thought for some reason they had actually been stricken but regardless at the end of the day that there's no question that the parties positions have shifted on this because at one point all of the settlements were relatively small and  obviously is outside the normal range and that not surprisingly cautious the parties to rethink their position but at the end of the day from my perspective what the court has to do at this stage is say what's the invalid completely so that's the holding of the court but mr fields that me ask you this i can certainly understand sort of conceptually that the party is under the compulsion of litigation that financial terms of a resolution might be viewed as skewed by the fact that there's the compulsion of litigation there this threat and all of that of but at the same time you know it's fairly well recognised that you if you get by the time you get to the end of the preparation of a lawsuit and you're either about ready to go to trial or the trial is about finished if parties compromises it's not unusual where the parties will come in and basically sort of split the difference and all of us for a hundred million i think i should get away without paying anything let's settle it for fifty million  why is that not relevant to the issue of damages where the parties may be similarly situated same or similar patents same or for dealing with patent litigation but in the absence of that i don't see any basis for the court to say well as a matter of policy would be better to or at least we can imagine circumstances in which that evidence might be valuable i think in this particular case as i say i think the rules categor don't think there's any basis for allowing that evidence in in this case but but even if you went beyond that and you go to the laser dynamic criteria where the court said you know generally there's a strong presumption against using it but on occasion you can't if certain was and it was significantly lower and it does seem to me again to me this is why i think the supreme court's role makes the most sense just get out of the business of doing this and force and force planets to come up with a better theory leatherette using litigation that  appropriateness of routed particularly as it applies in the patent contacts so i would seem to me that you know you would want a lot more evidence from the advisory committee on for a way to suggest that that it meant to modify the rule and rude then you got which is nothing and so from my perspective from where this court sitting today that that ought to be its assessment of this and i want to be clear because not only did this go to the issue of the measure of damages because  then it went back to then it went back to rescue net and it said you know that the rule is and that's and that's the end of the inquiry committee saskin in the district court my recollection correct me if i'm wrong is that for this court and the answer i would say on the route is absolutely not and then i would say if you don't want to go that far at a minimum say on the laser dynamics it's clearly not and then that's why you have to go beyond that not only did the pla with this in pushing as aggressively as possible on the issue of damages but went on to deal with liability and if and just because a lot of this is confidential i ask you to look at the pages twenty six and thirty one through thirty one of their thirty two  of my client these are the eighteen nineteen and saying that that settlement not only speaks to the question of how much you should punish us as a consequence of this but that you ought to find that the behavior of sprint under these circumstances corresponds to that for eighteen thousand as a consequence what i've asked this court what i would ask the court to do is to set aside the entirety of the judgment and allow a new trial under those circumstances if the court goes down that path i would hope that the court then would also recognize the problem that's embedded in the oh to micro issue in this particular case because there's little doubt in my mind at least that while the district judge  admirably construed the claims appropriately at one point in time you allow the construction to completely fall apart when the time came for the expert opinion to come in and and again this is laid out carefully the district court's own opinion we're just talking about you know controlling organization and then the in sort of the word single controlling organization and the expert miner says you have you know it has to be a single controlling organization we said there's not so much talking about the red briefs here but what the arguments were below was the sciri that of the other side that four particular don't mean you know let my friend answer that but i understood the argument to be the latter only the latter yes that was my understanding of it which is why i would say that that also has a problem with dealing with the pass through as opposed to the path to because i think with respect to the past to that's that's clearly these are not that's clearly a private line and that's not what this this patents about and as a consequence of that it seems to me that henri man if i'm right that the court ought to set aside because of the damages stake that that on remand a court ought also ought to at least ask the district court to construe this particular provision and do so in a way that will allow this case to be properly can you can start where i was where i just with my last question can you clarify that the idea of a single controller was an idea that was being well i mean it would be one situation it didn't come up at trial to be quite frank they didn't raise that but if you were to look at it call it a single call it takes to go from any location to the home network about just focus on the ones where there's several dozen back all networks ok now can now speak about only those that controls the network that single call would would would transmit from cell tower to the it's the sprint home network so there would be multiple entities need multiple back home networks not a single one the b single battle network that back all network is made up of multiple multiple vendors that control each of their own portion of the network so you might get a make a call from san francisco vast proposition that an individual data transmission going over the sprint back all network is fairly often the hallways whatever going to transit piece made up of multiple avi's and there is a hypothetical situation just to be candid that if you are close enough to friends home network it may not get maybe transmit just a single a v can result in the motion to exclude minor on the idea of a single controlling organization the church seem to be talking in terms of an aggregate network the internet represents a network of networks and it's aggregate and so it's asking the question what's that the jury would have to answer the question of whether spreads in trolled the aggregate networker had sufficient control of is no controlling organization and so when he was pressed he said no single then brought up to the judge judge resolved the issue that's on the ninety three ninety four where he was very clear that mr meyers interpretation of the morton order was not inconsistent with his understanding and that the question of fact was going to be whether or not sprint exercised such control and that was a question fact and can we switch now to can answer i do want to address a couple more things you can talk about whatever you want to talk about n micro well and the ocean micro is a very limited understand i know your honor i just mentioned that they have very few of the peak on fantasy tells in reality they have no margin no no no i think what i meant was that a very very small proportion of your total of their total accuse calls go over those is the traffic they put in evidence at court below that the amount traffic that goes over the access point to the home network nice six percent of those access points are the phantom pico cells and they admit they use internet so infringement is already agreed to there's no was testimony that was not disputed by any of the experts for sprint that the the the cost savings that sprint recognized by using the internet  the motorola case the loan is enough for them to come up with a damages not do i remember right that the the basic theory conceptual theory of your experts damages was it's very important to have a pretty pretty high degree of security on these networks as there are ways of getting some ok security we talk about them in the specification but in a competitive business like the wireless business the fact is unless they were licensing they would have had to build their own network and then he used i think inferior i mean what he said in theory was a very conservative cost estimate of that doesn't the nature of that theory make it at least ease an oval for the district court to have concluded that the jury award was a one time cost savings and not a claim and amount that increase with further usage for the next two years of the patent yeah it would be reasonable i agree with your honor it would it would have been except for one thing a jury question ok the jury question came back and  i was i was actually try try the case at the district court and when you get a question from the jury like that you're obviously very happy about the question that we're talking damages but we tried to say we let the jury consider the two you're going to make a one time the jury question are is that discussion that you just referred to in that it was on the record it was a phone call that the judge had with the jury question and basically they they want out the answer was not you adversary makes much of the fact that the question construct try to reconstruct the jury verdict in this case then which is at that level based on expert opinion that goes clothes exclusively the notion of creating a back hall and using a methodology or trying to figure out what that course which is completely made up and try to apply that back to those from calling them so it's really not i mean it's not completely made up and this is a case in which fundamentally they put on the damages case and you didn't  you're not going to use licenses then i think an economically and approach to this that is supported by lots of economists is figure out what the non infringing alternative would have been if the not infringing alternative here would have been construct a whole network that's kind of what he went about doing and then he said here's the cost and basically we want three percent of the cost savings not in ninety something and what i was talking about was the second half of that which is how i understand it is theory wise this is a very conservative estimate of the cost because they wouldn't be paying this year in a year out if it were cheaper for them to built so the cost must be bigger must be larger than what they're paying in the west they would have built it right all i'm saying is that  whatever number he came up with the cost is my mind at least purely speculative because it's based off of an analysis of the lease arrangements which has nothing to do with the costs and takes into account a wide range of other considerations but i  and i don't think that ultimately for me the real problem in this case is going to still be the use of the gnc settlement i don't see it anywhere and i don't hear anything that he said that remotely suggests that and to be sure it would just be cleaner if we had not ourselves but forward consistent with what we thought lazar dynamics permitted to be sure on the other hand when when the settlement that was beyond question prejudicial came into the case at that point we quite  objected to it i gather forgotten about in our post trial motions we also argued for zero eight specifically as well but the bottom line is is that we we preserve that issue objected to it strenuously and candidly it never should have gone into the case i hope obviously that you don't get to the cross appeal for obvious reasons but when the question came back from the jury our only answer was the answer to that question is no and reason we said no it was because we thought the jury misconstrued the