your interest in getting to at least what is currently on my mind assume for purposes of this question that we agree with your claim construction  think they have we've pointed out that the expert in that point on that point merely was talking generally and then when he was pointed out it was pointed out to him that a hot spot doesn't have a phone in it he read with that and so we don't think that's the one point that they pointed to or rematch with me yet so i think i understand that there's a one question and answer in which dr clarke isn't even definitive in saying no he or yes he thinks there is a non local close database and maybe the absence of such a affirmative declarative assertion is enough i frankly don't understand your point about how at least three of the four devices do not have phone call capabilities fits into this reversal versus remit and i don't even not even sure i know what a is well that's a good question iran is what's the point there that we're trying to make and i don't want to push too hard on the point about rivers versus remember the point to answer your question these are hotspots i call them i have one from brian i call the relevance under the claim of whether a device can as you say make a phone call if you agree with our claim construction you need to have a non local call database and that is something that you would use for a phone call there would be no reason to have that hotspot now go ahead no i didn't say anything and that's ok more generally there may be a there may be something more that in their brief i i'm not trying to say that you must reverse in this situation or i have no i don't think that there is anything more more in in in their brief but your i mean it's like a paragraph on each side which left me a pretty uncertain i i when i looked at the summary judgment papers you made a motion they made a motion for summary judgment which judge radar for granted you made a motion for summary judgment which you said in your motion for summary judgment preamble is limiting and what's more it actually requires a non local calls database and if you the judge agree with that then there are no non vocal c databases in the accused product they came back with only this little passage from dr clark and i'm trying to understand and they didn't say we need more discovery they didn't say we need claim construction because it changes whether we need to address the other issues and i think you've waited out very well why the court can just reverse because it was fully briefed it was on summary judgment if they had  factual dispute at the time of course the summary judgment procedure compels them to put that factual dispute in place but i would think that at a minimum there needs to be some explanation beyond what's in the brief  to to explain why we would even apart from procedure and summary judgment rule why we would want to or need to go down and and spend more resources both the parties and the district court's resources if they quote council they could  infringing devices do or do not have one and so does that mean that there needs to be a claim construction that we shouldn't be doing in the st instance he's getting if you know if you read through that he's getting pretty broad with his implied construction there i think because i think he refers to data calls in other words if it doesn't have anything to do with the telephone boy i think what he's saying there if you read it he's saying well if it's non local call database doesn't have anything to do with boys and it can or doesn't have to deal with voice calls it can deal with data calls which completely different than what is what the pattern is talking about i think that's what what's going on there with that testimony but i don't think that the in the tenable construction if you look at the bottom of column fifteen of the patent they talk about the non local call database all only and exclusively about telephone calls that's what i call mean certainly if you're talking you've probably had other cases if you were talking about memory right in the c p you can make a call to memory and get some data back but that's not what this path talking about so he can't get there's no support to go  judge wallace let me let me take you somewhere else for a moment on page one of the great race you assert that i'm quoting cmos trial carry on a series of non responses d ok isn't there a legitimate adverse inference when an employee declines to answer a specific question whether or not they assert the th ok so ye answer to that question would have been bad in the questions he got were questions of the form did you know is this file they had fourteen files on the blacktop in the did you put this file on your laptop you took the th the adverse inference you get from that is sure he put the file on his laptop but that doesn't have anything to do with the patent in this case they asked him did you use these files to prepare your patents and he took the th so an adverse  as it relates to whether or not it constitutes circumstantial evidence of a pattern of copying well other words you don't have to necessarily tie that particular piece of evidence to the particular patent if it establishes a pattern or helps to establish a pattern versus not a pattern of copying patents and i don't want to go too deep into that because that's not the ultimate point the the ultimate point is that yes it could be to show that let's say just general bad faith but if there's no evidence that we knew about this patent or no inference no reasonable inference that anybody knew and nothing about mr bin has anything to do with patent maybe you could use mr bin to say well we're bad guys something like that right to to get the intent element but you have to separately put that up and say well ok that there was bad intent but even with the bad intent there's no evidence of knowledge of the patent can we go back to the to the primary question which is the claim construction issue  do you believe that requiring a plurality of each of the elements requires more than one of each element in the claim devices as in both two or more non local databases i think so i think that's the natural reading you know we rely on super guy super guide with one or more plurality means two or more if you apply super guide with a slight adjustment changing one or more to two or more i think that's the ordinary meaning of the c well i mean is there anything in the specification that would support the proposition that you need multiples so two points on that yes and i'll tell you in a minute and there is more d than what support computer components they do talk about one or more what does one or more meanwhile the more d part of one or more is two or more and so allows for want right it does allow for one but you don't have to hit everything if you don't have to claim all possibilities this is not a situation where you have a preferred embodiment a separate invention in the specification what you're saying is there's an optional thing here you have one you could have two you could have three and then if you want to take that option in a plane you can't claim an option right you can't claim all of that you can't because if you do that then i open ended all of that so if you are allowed to carve off part of an option in your claim in the briefing has plenty of discussion about how they this is a con from a previous patent and co other claims in this patent and in the deal with that i will say though that we have the only ordinary meaning claim construction in this case so if you want a match to that ordinary meaning you can go to the summary of this patent and there ordinary meaning of this language then there is disclosure in the specification not in the classical way that people do it but there is disclosure in the specification that matches that so we don't have a situation where there is some sort of a non local call the database to be satisfied that feature is not necessary under a plain english interpretation of the claim and as an optional feature he did not quote the central structure for the claims are quote structurally complete  at least two of those items in the previous list have to have themselves there have to at least be a plurality of those which then tells me ok this is a to work for ality and the st part is in fact distributed over and therefore applies to each of the items in the list your honor i agree to claim is not all d that clearly written but in our interpretation of the last phrase of the queen the part that comes after the preamble list from the brief one is saying there is at least of programs so there must be at least two programs which the list element makes clear because it says a program at least one of those programs has instructions that can be executed to do certain things in the claims so it's not looks like that is an optional feature there's no dispute between the parties about that fact but there's no disclosure about how one might use multiple non local calls databases in the invention claimed in this court's precedent for example iraq is wireless databases and so therefore this court's precedent counsels against that the other problem with with a proposed construction is that it requires even one comical call database as made clear in our briefing that would  is completely different system that's discussed and so there you don't have to worry about whether it's optional or not east is not required is consistent with the way the rest of the claim is written the questions on remeron touched on this a little bit but we don't know what a normal call database is or does in the context of the claim and the reason artifact underlying that statement true or is it true that we're asking for an eighty six percent royalty i believe the testimony that is cited there that is a trial transcript citation for that citation that was made to evidence the jury heard and we have no reason to doubt that that's true and the math i think is correct eighty six percent eighty six percent of three hundred and fifty dollars but still in all that's part of the overall have and ensure a package the jury heard when deciding whether or not mr martinez as well as the presentation was correct as an apparatus claim the sale of the device is an infringing sale or stipulation to that effect the use of a device by a customer of you closing would also be an act of infringement because they are using a device which is an infringing device so we're infringement by you both in the form of direct sale direct infringement through sales and induced him to enter infringement through sales abroad and usage in the united states the question is what is the economic impact of that sale the answer can't be anything other than the uses of the device consume data if they don't do that device is a go back to where judge straddle started argument with your friend on the other side and that is assuming that we would believe that the claim construction is wrong what is your position  on remand versus reversal i mean these were cross motions for summary judgment discovery was closed i mean if there was an argument to be made that and you didn't know at the time what the court's construction was going to be if there if there was an argument to be made under an alternative construction shouldn't you have had to make it that you are i think this is a bit of an abnormal situation and i have to study judge rakoff order on this exact point today or yesterday but i believe what opposition to the other side summary judgment motion on this point i do not remember seeing you making an argument that because of late arising nature of this issue or for any other reason that you would need more discovery or would need a claim construction on non local calls database in order to answer the question whether call what does it mean to be and i doubt of a that was what we had relied on at that point the problem i have with that is as far as i understand that that's the only thing he relied on and what you can't find in that single question and answer is a direct the clarity of statement that yes there is a non local calls database in at least one or more of the accused products i think i agree with you i think what dr clarke says there is i don't know what database there might be and that's the fundamental problem we have here and gets back to my point about non local database not being mentioned anywhere else in the claim even if it is a limitation to the claim we don't know what it means rather than a fact finding has nobody knows what it means at this  why why am i wrong would i be wrong in thinking that even if the foreign data use could properly under western jiko supreme court western jiko and so on be a legitimate part of the assessment of the royalty for the domestic sales why isn't there a jury trial right to the resolution of the issue because it seems like there are fact questions your honor in our view and i think that our made this fairly clear the issue of the royalty rate to be applied to both domestic and foreign damage if you will was an issue trying to the jury mr martinez the testimony about what the royalty rate would be for the method only determinations and said it would be lower if a full kind of global determination were made and the number that the dropped and then the patents were a search in another just district just one month later and so the most filing of the sixty nine dollars complaints subsequent to it east and desist letter is a very similar issue albeit a shorter period of time in between knowledge of apparent patent enough i would contend your honor that knowledge of apparent patents is enough especially under this circumstance when the patent application has been ma access i'm sorry to drag this out is the other side's view of this doesn't come of the claim construction doesn't it amount to putting the single letter word a in front of memory and in front of non local calls database and then you have a list of things some of which are singular some of which are plural and at that point what comes after the at least one makes perfect sense a plurality of the two things that are listed as plural and so with a pretty small bit of surgery we have we would have a claim that is actually in standard english and  l on the superguy point no i don't think that's a small change the term memory as they've said multiple times is a group now same with communication circuitry ok so there's no need only with if you want to put a in there you are that term is used in the prior is that exactly what happened in o t not only have i didn't have one of these optional terms where it said where you can have a or not have a i don't think that was the fact in o t and there's other and we make it in the brief is that you know the there weren't other claims so really you said well it looks to us like he's trying to get everything with claim one i forget what number it was in o t but let's just say claim one so reciting that feature missing from other claims and it doesn't have to be only that feature that comes out of the claim but if there isn't a reason to necessarily conclude he's trying to get everything in his disclosure so we don't do it and that's why we have you know verboten and we're going to have to cover both they said you know what you claimed aluminum that's what you get under the plain language of the claim and in fact even worse for them you disclaimed the other materials steel  other other ways where the claim language is clear where there is an ordinary meaning for the claim that all disrupt lizard tech is one example where the court said listen if you if you've got a one hundred and twelve problem with a gate it further somewhere else and then just really quickly on remedy  you should look at a seventy six where the court talked about how much blame each party had for when the issues came up and i think the judge toronto has his finger on whether there was a request for extra discovery whether it was a request for