buyer indicate that they are not some other information that will let you figure out that so applying that principle here whatever indicated means what this invent with this device does is really far afield from indicating that which must be indicated which is the execution status of a statement that there is no dispute about what this device does and i refer the court to page fourteen of our grief were you happy picture of the display of our device and you see that all it does is to give you signal names and then it tells you what the signal value is the only way to figure out which a line of code executed from that signal of value is to go through and chocolate chip ice cream yes your honor because you see he sees it all right they were in front of him and knows automatically without any mental process which when you're indicating about what this device does to take your analogy one step further is food is you walking to baskin robbins you say here is my ice cream proper and i want a chocolate based ice cream that is named for a moment in the great depression and if you google that you will get a bunch of entries you will definitely with this what this does is it gives you a signal value and mentors own expert acknowledges that this is signal value what do you do with that signal value this is what the patent it mentors experts say we're supposed to do first you've got the signal value you have to write down the signal name then you have to enter that into a search tool the text editor then you have to find it now it could  you've got to go to each of those thousand neighborhoods and when you find one of those neighborhoods you first have to check ok do i have all of the other signal values i need in order to solve this then you have to work through the mental process of figuring out what the answer is so one damages the district court conceded that it made an error in the jury instructions and this court passed to connect correct for that error mentor accused just two features out of thousands in the device now a century and happy supreme court precedent says in the context of lost profits that you have to apportion quote in every case at least four times the supreme court has done that in a lost profits case it did of them involve lost profits and you can see the quotes in our brief i can give you each once in particular are lost profits as opposed to exclusively disgorgement cases which one of which ones of before us and so i that i may have been clear every single one of the four involved lost profits in it or every single one of the four involved lost profits some of them also involved discords with and by the way this was at a time when lost profits was the leading way to evaluate actual damages so here is my question to you the district court i thought in in a very dark hole way explained as part of the trial transcript which i read you know in response to whether there is a problem with apportionment or entire market value analysis as step two and require it never a case what the district court judge said here quite artfully in the transcript wait a minute doesn't do is actually in order to prove the panda what factors haven't you actually proved your entitle me to all of the lost profits on the entire product because that's what pan do it requires you to prove and he concluded that that was the case and that's why he didn't grant your motion so why doesn't it why is it printing substitutes for the feature so that there was or oh see that's what i thought you were going to say so i went back and read the jury instruction very carefully you should pull it out it's on a one sixty four this report didn't save the feature he said for the entire  instructions on it one sixty four one sixty five the entire thing talks about is there a substitute for the emulator and it goes on it actually lists every substitute that was potentially argued by the parties the cadence emulator system the f p g a prototype the software simulator and then it said or anything else synopsis could've been available right developed during the time so what he is clearly saying and at the very top even he talks about emulator is is there a substitute we have an emulator now granted an emulator probably has one hundred punches and only two are patented here right but what he charged the jury with is what intel because that's where these just really come from have been willing to buy an emulat without these two features and the conclusion the jury reach was no well so so that is correct so let me let me state it in context it's very familiar to this court take that same exact jury instruction assume as is the case here aid to supplier mortgage as least that's what the jury failed ok and let's just say it's you know it's a laptop with a thousand features so what this judge is telling the jury is if you find that so if your selling a computer that doesn't have a keyboard and i'm selling computer of the keyboard and if nobody's willing to buy a computer without a keyboard doesn't mean the rest of the stuff you're selling doesn't have value but the basis for the customer demand for the emulate these two features were a driver of the demand that same customer also would not have bought the laptop without the other nine hundred ninety nine patents that are report rated intuit let me give you the perfect example of do it doesn't already accounted for the entire market valuable quite frankly why these two things are not virtually interchangeable because you want me to add a layer of entire market value of all one to one top way i read the jury instruction that's exactly how would you know you're charged with doing now with a jury what the jury was charged with doing was finding that this was a cause this particular part of this particular feature which was the only feature that the jury had in front of it resolution screen they all would have gotten one hundred percent of our profits were now up to five hundred percent and that's before we even accounted for the other nine hundred ninety six patented features in here for which other patent teas will demand royalties so you think entire market value will mean there can only be one basis for the customer demand of a product and that way you can only get sued one time because it's only one thing that's really the basis of the command it's not what i expressly sends would not have made some or all of the departed sales but for infringement and it goes through all of the options which could have been acceptable available not infringing alternatives and it even has a catch all for anything else  case said that that the zebu feature i c c the these two particular probes were nowhere near the top of the list of the most important things intel itself said we wouldn't have bought th everything and only one lost profits on a portion of what they asked for i e the answer is the jury awarded less there though they sort of forty seven million in all you know in this black box is that the jury awarded thirty six million they asked for fifty thousand dollars in royalties all i know from this record is that the jury awarded two hundred fifty thousand dollars in royalties we have no idea what the jury actually did but all the jury was asked to do was to say not that this was the tribe or because there were lots of other drivers testimony in this record is clear that there were events or soon witness said there were thirteen features that drove consumer demand mr generic chemical kind compassing a lot of species one of them is found not to have the utility of the others not doesn't normally invalidate that you never claimed why does the presence of this carry a wage make that claim not patent eligible in this case i believe we're just stinks from the case of a chemical case which is an unpredictable arc we're in the area  just a hypothetical assuming that there are some very complex product that is covered by a thousand pounds and the manufacturer has either bonds or is licensed six hundred of those fifty of them the twenty five of the fifty or are competitors seeking lost profits and then twenty of the twenty five successful infringement suit by competitors they succeed in for the panda with factors to establish lost profits and if there's a million sales but there's twenty lost profits for a fix on those million sales and now the manufacturers responsible for centrally for lost profits on twenty million sales is that a logical outcome there are i don't believe that that's the correct outcome i believe that under this court's guidance when you have multiple cards in the marketplace the but for test and hand with would divide them why as this court did it more flow would divide the market up among the party in theory and the way it should apply is that a defendant who infringes should only pay a lot of their lost profits once so if we have if i may take a slightly simpler example we have let's take a three party market and each party has thirty three percent they've got an equal share of the market so if i've party a shoes party be different for internet and party see also says party b for infringement and because they're competitors so that puts this in this lost profits analysis party gate will only get lost profits or their market share and party scene will get lost profits for their market share some of the divide the market up and that will be that will be substitute the district court still has to continue through the inquiry to figure out whether it's truly a but for causation and that happened in this case the jury the jury instruction required mentor to demonstrate that it was a two party market and the jury found that it was a two party market and on that basis awarded lost profits i want to address one other point on the last process i guess are you saying if it's a twenty five party market going back to my hypothetical and maybe that would be an instance where we have to think of the portion i don't think of it as a portion i think of it is satisfying the but for test in a way that addresses the multiple competitor market and you have to would have to divide the market up among the competitors no one in that circumstance no one competitor can come claim that they would have made all of the sales they would make they would make their portion of the sales based on their market share and then that is what moore flow addressed was their market share analysis and whether damages lost profits should be awarded for the entire market or only for the market share of the patentee and that's what happened they got their market share in this case so is it just so i understand when it comes to damages syrian's is your understanding that when it comes to lost profits for a large machine where there are a lot of little patent components and the patent owner has a patent on one of those components the way it's going to work out is either going to succeed in proving lost profits and therefore will get lost profits lost sales of the entire machine or he's going to be run through a reasonable royalty and just jenin a portion of incremental value of the  component and so therefore there is no in between situation where the patent owner in this kind of circumstance would be getting lost profits just for the patented component of self if the be do that and what factors that the demand is for the whole machine and that there are no reasonable not infringing substitutes and in this case an abscess was given many opportunities to demonstrate that and the jury did come back with an award a reasonable royalty on some of the sales they did not find that mentor graphics would have made all of the sales there was a division of lost profits on some of the sales it was a reasonable loyalty on a portion of the  the evidence in this case that there was substantial evidence supporting the jury finding of infringement of claims one twenty four twenty six twenty seven and twenty eight and feed what i'd like to focus on with respect to claims one and twenty eight for associated software including two statements in the software appears beginning at forty one one to seven in the appendix using that diagram as an example dr seraphine demonstrated that the value of  solid line on the multiplexer that was a signal mass it didn't help you determine precisely which line of code was being executed in the other words which of the two and puts the input whe mistake about it it is precise this testimony establish that that indicated the signal the instrumentation signal indicated precisely which statement in the source code was being executed now this appears in a claim that requires two steps identifying a statement in the r t l and synthesizing the source code to create a net list that has th lawyer or there's we have a problem because they're in concert we believe that they would be inconsistent with lawlor if applied to our facts so foster one related to a challenge to the limited and in that case the argument was  foster raised the same claim of invalidity foster to it was an argument was about a breach of the license agreement and in both cases the question is whether the issue of the lady could be really related it wasn't a question of whether there was a new claim based on an accident friendship that occurred after a prior judgment it was those two cases both deal with the situation of a and issue of infringement being i think gives me an issue of invalidity being precluded so that's how i would distinguish those two cases so if we come back to lawler as being the controlling line of the end this court's decision subsequent decisions in aspects and brain life which all state that if the infringing act that's an act of making using or selling occur after the prior decision then those acts may be litigated there's a cause of action the kesler doctrine we would assert is in applicable in this case because it only relates to findings of non infringement in this case there was no finding of non infringement  consistent with a wall or facts with brain one facts and the aspects that some that think that they have we have to do in order to make all of the pieces fit we have to distinguish between foster cases based on the fact that they dealt with the issue of invalid the law there should still be a reversal because we were not allowed to present our evidence that would go to all of the factors i mean we called it evidence of apportionment but it would have gone to all the factors that judge moore suggesti g were incorporated in but for causation and that is reversible error but that is not the correct a view of the law one way to know that can do it but for cause is not a  profits there are all these other features for which a the maker of a device has to pay royalties not to mention the features that we develop and we've lost all of the profits on the sale no one's going to sell  es anymore in a world especially a world where there are just a handful of competitors if that is the law and i just want to emphasize we're not writing on a clean slate here we have we have is judge moore recognize the supreme court now we recognize that was prepared to do it but we've got this court citing the supreme court cases it's not like nine hundred forty six change the world the supreme court ruled view the  before as a continuation on lost profits and that that body of damages awards as a continuation of what existed we've got this court saying in ericsson that damages must be  apportioned in every case including not royalty cases lost profits is the only other option i know this is where all the money and so i don't blame you for standing up wanting to talk about it and i really want to hear your argument and raise you  about today's products but about tomorrow's products as well and there are all sorts of ways that the patent he can protect himself that are very understandable to this court when they settle actually is when they litigate or when they settle when they  your reconcile difference i think the cases are actually irreconcilable brain life in aspects on the one hand and foster to foster cases on the other with regard to this claim preclusion issue correct so what do we do  what what do we do well so two things to say about that first is this course was clear that what you do is you recognize that the later panels did not have the authority to override cost or one of forced or to you and you're bound by foster one a very easy way out of this is is to recognize that mentor waived the argument that this was the reason that the district court gave for deciding against mentor the reason is foster one then mentor graphics counterclaim for infringement correct so i mean maybe there's a way to think about it as if it was your team that opened the door i mean why should we are him from licenses only into the first two we could have stretched and made a recent race judicata argument as to the perps as to the three seven six but that's the that's the reason thank litigate the issue of a limited this is a property dispute and if you have a dispute about a trespass and somebody is infringement on your property and in the first case you decide where the property line it's and you come back in the second case you don't get to really the gate the question of where the property line is but it's undisputable that step of setting foot on the property a second time created because of action for trespass same situation here new good new acts of infringement that occurred afterwards and the foster cases we believe addressed the issue the question of related gating the issue of validity if litigants were given a second chance to  literally the court stated alleged infringers might well accept the license and under a consent decree and for going to tack on validity until favored by a stronger financial position so that shows that the fostered one decision that's from pack we don't know why but we do know that the excused feature for the three seventy six patent was not venning inserted into their product until after the prior the first litigation was over