consequences i'll focus on just one running step the second step of the survey claims and then lastly if time permits i'd like to go to damages which is an independent basis for a real man the royalty basis that the entire market value of the lo l w a p product entire market value wasn't satisfied and in any event the licenses that were used were licenses the experts hadn't even conceded that he had not of course and well this is my last issue let me finish the thought what happened was cold meal opened on the propositions that the entire l w a p were infringing products even though the asserted claims are method claims but even as for those products there are several functionalities not disputed that have nothing to do with the asserted claims there are function starting it was presented as the l a w a p in their entirety being infringing products even though there's nothing to claim it was presented to the jury as those products constitut the proper royalty days but even though those products have multiple functionalities some clearly having nothing to do with the claims several having to do with this but architecture but still having nothing to do with the claims it to the court is we didn't invoke the entire markets valuable for the rule it's not something that you decide to invoke or you don't invoke it's a rule that applies and when you open to the jury and say these products in france these a revenue base of one point two billion dollars you should award a five percent oil and one point two billion dollars that is the entire market value role and then you have to satisfy the requirement that you demonstrate that the claims feature is dr mann i think one of the places where the problem is captured is a page sixty one of comatose briefs where they quote some testimony from one of our witnesses suggesting or arguing that there is evidence that claims invention drove demand when the court looked at that portion of the record what you'll see is it's nothing more than the witnessing dollars and what you would expect there are very successful products and the witnesses saying the features of those products drove demand for those products of course that's true the question that's not answer those questions and the question that the expert conceit he didn't and didn't answer is do that claimed features of the pattern dr demand and there is no evidence of that and there's no evidence of apportionment and that would require a new trial your roadmap let's assume for the sake of argument that we agree with your concerns about the jury instructions so now we're talking about the scope of a new trial because let's assume there's a problem with the inducement instructions let's assume also for purposes of getting through this that we also are i also think that i can understand therefore why you should have been able to introduce evidence with regard to your for various invalid contentions in connection with your good bit good faith belief in the inducement how however it does if we include all of that does that necessarily allow you to also get a new or overlapping the presumption of strong presumption is that it should be tried together and so i was not arguing still made in the first time around before that just to court i mean why even give the district court the opportunity to find that that argument was wa about a waiver of a constitutional right to have the issues tried together which really means that the evidence for the record has indicated strong there's been a conscious waiver that when it became before the second trial occurred cisco had made that claim ok so assuming that that there's no way that than then you know i can at least intellectually see a distinction between a good faith belief in  analytical difference between the two the former is more the subjective state of mind of a party or a litigant the second is more objective is it valid or invalid i would suggest that this is why i think  to good good faith belief the only distinction that i think judge amelie and i are getting to is why you should independent from raising all of that into two of the defense also being able to get a retrial on the precise question use to the good faith belief are not just the case the validity defenses that you want to go back to the jury it includes obviousness and anticipation and others right yes for sure your honor it's speaking of intertwining i'm i'm having a hard time understanding how your first issue is one issue i mean because your whole issue about getting product is whether you should have had a partial second trial at all and the other two issues about the way the second handled are are from the second trial so we either we neither have to say or garlits of what happened then the second trial you should have had one trial and that's that's the only way you get to the one trial issue i'm not sure you're on right and i think this is the place where i would read characterize distinction gasoline products applies to both of us when products apply to the question of whether instruction and i don't work collectively they require a new trial we submit to collectively they require a new not a new partial trial well that's what yes that's the problem but you meet if we're only looking at the second trial and you've got arguments that the second trial was less infected by error then you go back and you try that case again right out that that's a case where i think actually we would respectfully disagree let's that now i don't disagree for a second i'm a bit of a civil procedure nerd and i just i think you're merging these things to type i think if we agree with you as to that gasoline product issue i think for both the first and second you're right that if you focus on gasoline products for the first and there never should have been there were a trial and all of our other defenses are that were raised on infringement what rejects all of the other defenses that in that circumstance you might get yourself to a place where the first verdict stands but i think gasoline products applies independently to what you're going to remain on the second trial now for sure to be fair from our perspective from the arguments we made for you the most important thing to have a retrial on are inducement induced infringement damages and the ability to demonstrate the state believes that the patents were invalid and not infringed in order to demonstrate that we had a we didn't have the requisite intent i think the guessing part is question becomes independently of what happened the first trial what else is there that should be retried under deafening products as do you concede that that direct infringement is not so intertwined with the issues of illiteracy and inducement that that would is an example on the dividing and the running step or the running step specifically that are going to apply both to direct and indirect infringement because we do need gas a direct imprint by the third party are  the opportunity to discuss whether the claim should be limited to the bluetooth or is least more narrowly then that which would be required to cover the entire why five usage of twelve and that's reason that i'm making the argument or gasoline products i understand fully the point the judge process in general now i have raised about issues that might not be directly related to the issues on  the question is are these fish in the radio a guessing product that everything should be retried together i think the issue that you've raised which is the narrowness of the specification the specificity of the claims  probably one of the best indication is that how policy this is all wrapped up together and the implications of that clearly was a fact whether we had the requisite intent willful blindness or the after intent to induce we induce direct infringement as a matter of fact and how the damages from one question can i take from your quite late in the list of two dividing and running and they claim interpretation coming doesn't dispute that the defining step require is a separate incident so the protocol that both the base station the access point it has one  confusing information and data the protocols work with protocol however if you're not going to read as narrowly as we do and it's going to state apply broadly to why fine networks that are not connection oriented that are designed to have mobility then there are section one twelve issues with it and when you have a circumstance runner where in various newell's wife by wife i was out there  potations and how you deal with the consequences not infringement is probably the strongest global tax state otherwise the contention by cisco relying on footnote ten of global tactics as to know or should know should not be in a jury instruction is a mis characterization but no fence footnote ten by the supreme court says that the standard we set today was not properly instructed and the senate that that comes from makes it clear to me that test is you have to have at least willful blindness or actual knowledge how can you say that still that leaves the law and should have no standards your honor because the supreme court was addressing appears in archery instruction which of course with the su and in our instruction it meets the standard well don't you think that involve the tech what the court was talking about what knowledge or willful blindness inducing a wrongful various i think would include knowledge of the patent but it would also include knowledge that you are inducing infringement of a valid will clearly the holding is that you have to have actual knowledge of the patent or willful blindness of the pa t there was nothing new in the supreme court saying that you had to show that their work knowing acts that you knew would cause and frenchman that was already said and the shoe on top and  i'm really unclear so you're saying that the standard of knew or should have known is the correct one that would apply that that's why there's not a problem with the jury instruction the no the correct standard no your honor let me clarify i'm saying that clearly under and you know that the actual inducing will lead to infringement what i'm saying is our jury instruction did that and the su and global tech go hand in hand this court if a jury instruction did that because you think it was correct to instruct that the standard is new it should have no i think taking the jury instructions as a whole begins by saying that you must find that there was no ink aiding and abetting that it must be intentional the sentence taken in isolation with no or should know begins with the word furthermore which means in addition and then that has to know or should know which as recently as a few weeks ago was instruction it plus which was affirmed by the score for the instruction has knew or should have known in two places right the furthermore sentence and then later on i'm looking at the transcript page ninety nine knowing that it would cause infringement and i think under the your argument your whole argument depends on the division between what you have to know about the patents and what you have to know about whether or not the activities you're encouraging would read on that is that combination for which its component was especially designed was both patented and infringing and then they say that same conclusion compels the same knowledge for liability under two seventy one feet i accept that find that cisco knowingly aided and abetted in the in french military arguments that in the context the jury would have heard several of these things and would have decided one was the right and ok i'm trying to understand it that i'm not saying that i'm not saying that you can put out a jury instruction that has a conflict in a standard and that's ok and jury figures out the right when i'm not saying that what i'm saying is taking this jury instruction as a whole and looking at what the judge said specifically is that instruction begins and knowing that the entire language comes from vs you that jury instruction comes from vs you in the no court the supreme court no court this court has not over ruled that those two cases go hand in hand and it's because where you do have actual knowledge of the pattern which was something the jury accepted here and the jury was told you have to find this was knowing aiding and abetting those words make clear the no one should know follows in addition and then tonight movie i'm a little i just i understand your point faith that they didn't in french that's a match up between you're being accused of inducing infringement and you're saying even if you're wrong you thought you were infringing your honor and the reason that you think the taste lo distinction when it says that you knew that the x constituted infringement but that only applies to the infringement piece of it and not to the validity that i do i don't think the opinion is really yes by clear and convincing evidence of that they're not and i don't think there's any case that says not this court has said or any higher court has said that good faith belief in invalid to two or two or three so if it may be three to two going their way at the district court level i know the last case which was decided just two weeks ago or are very recently is a very well reasoned opinion  but if you think and you have a really really strong case that the patent is absolutely positively invalid that that wouldn't similarly not be a defense yes judge pro spin here's why i think policy wise that should be the case because a infringer will know that they become infringer because if they're not in on a valid patent because if it wasn't valid this one issue come up so if a person who's accused of infringement says well i think i'll be infringing but i believe that it's invalid they shouldn't be allowed to proceed to go forward and sell the product because they're facing a statutory presumption that that convincing evidence to establish that than to say here's a person who says that i didn't think that in french that i mean that i think it was valid they shouldn't do that in the face of a statutory presumption that it's valid fair opportunity to try the validity and last but that my question because she was was a trial court relying on that initial jury's verdict as are we expected to give any deference to that initial jury verdict well i think the grounds for excluding the good faith belief was not completely based on a maybe not at all based on the fact that the jury had already said that the patents valid or not invalid it was based on the view that that is not a proper defense to an infringement if it was interesting to me is that it was a defense that he allowed in the first trial right as long as the liberty was being tried he allowed that such a right but not so how did it become a defense and not a defense in the second term because to decide to have a witness stand up and say i read the pattern and i didn't think that it was valid is much different than coming forward with a witness to say the written description isn't adequate because a person skills of the art you know it's not enabled because that was the right into the gasoline product i don't think so at all your honor i think that there are many cases including this court where it's made very clear that infringement is separate and distinct from validity and that's the two poles that need to be measure in in and in the validity was left in trial under one and in trial number two it was separate and distinct to try infringement damages and there's numerous cases that use the word step are interesting in that district court opinions that was one that that i like and that i thought would be helpful to the court what this court did was say we've been we've reviewed the entire record and we find that there was substantial evidence to support infringement finding and when you look back at the district court the instruction that we shoes there was identical to the one here that is not mentioned in this court's opinion but obviously it was it was all over the district court opinion are two or three or in our side and two or three on their side i think the court has before it an opportunity to really address that question and it should be driven by a policy decision as to the fact of  statutory presumption which makes it quite different from intrenchments and so i think that statutory presumption is where congress struck the balance and i don't think it's unfair to a defendant who can defend induce not only by saying there wasn't direct in french meant but i have a state of mind but also i didn't think that i was infringing they have all those defenses they should not be allowed to say well i thought that this patent which is presumed valid and that i would have to show by clear and convincing evidence at exactly the right they get in the wilfulness inquiry and it has the proper place where it should be in that place but this is not this is an actual damage there wade is the reason i think and do so much we have to prove and have substantial evidence of their wrongful intent their specific intent but they should not if it's not inconsistent with that requirement of specific intent to say that they can't get up and say they fought a patent was invalid when the united states law says it's presumed valid and they can go to the p have it invalidated which is what cisco attempted to do here and failed and that reconfirmation certificate and i ask i just assume let's assume for the sake of argument that we we've gotten past that point and we're on sort of the final point of this step which is the seventh amendment argument and whether or not if there's a new trial it should include the aspects of the liturgy and infringement and the trial as well because obviously at some level all of this is is pretty much intertwined is it not i do i i think that it is not intertwined i think there are specific case authorities  intertwined because the good faith belief in validity is if it's permit it is a defense are an intent to infringement it sounds like that's why i think the judge felt was very confusing after the actual finding a validity to go to the mental state but because it has a component of the word invalidity doesn't mean that it's pretty much a invalidity it's a state of mind defense really no i mean that's how i would see why it's not intertwined i was intrigued that you didn't even mention waiver in your in your brief it are you are you deciding that that i mean clearly as one of the members of the court asked that in the motion for new trial made it very clear we were seeking a partial new trial the response does not address that well that the waiver depends are in the fact that the trial judge was deprived of that argument before the ruling was made and i think it sounds jurisprudence that for a trial judge to make a decision the arguments have to be raised in the courts frequently say if you didn't raise it it's too late to raise it later how much time with occurred between the order for a new trial and the start of a new trial the order of the new trial i think was raise this constitutional issue until after the court's order for a new trial well i've never felt that the the i don't believe that there is a constitutional problem and and while i think it was waived maybe that's why i haven't devoted more time to it is because that's a component of our position but it's not the major on this this case damage is distinctly different from the problems that justifiably assisted in cases like uniloc and in and loose in the recent laser dynamic there was a fortune in this case there was a sound economic analysis done all of the georgia pacific factors were discussed there was a linkage that occurred between the licenses it was proper for the jury to make the decisions about that and whether the fair market you know entire market value rule applies or doesn't we contend that it didn't because the smallest syllable unit which used but even if it did this is an excellent case to demonstrate that it was complied with because the patented feature was at the core of these products the minute you turned them on the patented feature was was running it was a unified whole and the testimony was clear that patented feature drove the demand it opened up a new market and that this new feature along with old features these new products with this at the core was going up one hundred percent a year in sales while the old ones without that feature were plummeting to twenty five percent a year decreases so in conclusion your honor and i thank the court for your indulgence this is a solid sound case where the damage award is not outrageously high which is one of the standards that has been written about by this court but complies with the kind of things and avoids the problems that you had in the three cases i mentioned thank you thank you none of this i may be wrong but i don't think the comatose rephrased is the issue of the waiver i don't think it does and there is a waiver waiver if there are issues that well and they're not brought up to you but the problem is we are reviewing a judgement a love and  judgement a love is premised entirely on waiver so if it's there if they're arguing that that judgment was valid how can we it's one thing to sort of ignore a general argument but to ignore the judge's basis for their judgment but your honor i would say two things sometimes there are multiple bases for district court judgment and that i can cite only to bring one or two to you and those are the ones that should be addressed on appeal if you think this circumstance because it's seventh amendment issue we did raise it on a motion for reconsideration that was filed not even ten days after the judge decided to do a part for a trial to explicitly raise and that was about five months before the raid trial when he denied that he sought mandamus to raise the issue with you before the issue with the citing and i think because it's a seventh amendment issue the supreme court case zero one us three ninety three says look at the constitutional waiver you know it really requires particular scrutiny and to ensure that there has been a waiver and if there's been prejudice because it's constitutional right and we would suggest that there isn't here the second point i would make is this and this may be determined when you and i are discussing why i was making the argument that other issues come in the guessing products as you shoes have to be so distinct and separate will that it's clear they should be not be tried together and that's because something that i was operating on so by way of example on the issues that i finished my argument the control the infringement issue when the court looks at the record on the question of whether the controller see or have a separate instance of a protocol every time a mobile unit and a half there is nothing and if the court consider footnote ten of communist break you'll see if it really is just saying well it's out there it's sort of out there in the jury with entitled to say there was one those issues are sufficiently intertwined that they should be tried to get a pay deal with the fact that we issue i don't know of any federal circuit cases you can parse them out and the last point i would make it is this on this issue of the good basis of liberty i think a simple example at least to me helps if if i'm making cars and i'm selling them cars and then sues my customers and me for inducing infringement there's no doubt that i fall within the scope of that claim there is no doubt that my customers fall within the scope of a claim there's also no doubt that it's in