if necessary qualifications as the statement that i am obligated to make but i will supplement that by saying that and he's worked for me for year and a half and counting he's a terrific person to work with he's very bright as rendered excellent service for me and first case is all flex versus average identification systems two thousand and eleven sixteen twenty one mr t passage from the very agreement that is the source of the question as to whether we have jurisdiction in this case i assume that you don't seriously press a claim of confidentiality with respect to that material on behalf of avid we don't offer lexus not officially personal who i believe their attorneys are in the courtroom i don't know whether they would press that confidentiality but well there's a lot of material that's marked confidential and you are you know in these situations we frequently ash the parties to tell us if they're to use the words of the great john mcenroe you can't be  serious but it it does strike me that it would be difficult to write an opinion in this case well respecting all of the claims of confidentiality so i'm asking for a blanket waiver opinions and exercise in navigating a minefield and that isn't something that we normally find compatible with trying to write a published public opinion so  what we're looking to you for is to identify those sections that really matter as opposed to those sections that may have been designated as confidential and proceeding before the district court but are not seriously  objective is to is if there's something thats it clearly a trade secret or needs to be protected fine but if it's just something that happens to have been marked as confidential in the district court that's not something that we would enjoy having to try to work around if i may your honor after this record during the summary judgment proceedings at the public hearings some of this technology was in fact discussed highly rigid and narrow construction of claims that in turn would to a finding of not infringement and unethical conduct i do plan to spend the bulk of my time on those two issues on the ask you before you get there  first question out of the box is is this a final judgment because and i focus for this purpose on the equitable conduct the claim is that claim final contend that it is final because of the special circumstances in this case where the parties agreed during settlement that this issue could be appealed and in fact there is a portion of the settlement that's been structured that is which disposes of this claim has this claim been disposed does and if so what was the disposition of the clin particular subsidiary issues but the claim the claim would have been wrapped up in the final judgment in which the court issued a judgment staying at the case was ready for final disposition and therefore who want let me put it that way who won an equitable cond claim you are your opponent well the and don't tell me about the normal number one issue was decided against you and so it in order for that issue to be final somebody has to at what there has to be a disposition now if in fact that case is that issue is still the queen is still open because of the status of the materiality twenty then no one has one but then we don't have a final judge no one is one but i disagree with the premise that someone has to win in order for for there are cases in which part of summary judgment has been accepted by this court under certain rear circumstance to claim are easily dismissed in which case no one wins that's a claim is gone and that would repetitive appeals and it's to be applied in this record in practical way not nickel way and here there is finality because of the nature of the settlement agreement lead what you're arguing think that what it would do like the rule in nixon and haven realty that sort of open the store is promote settlement because there are many times when you have parties that are trying to settle a case one party has been fairly successful or very successful and the other party feels aggrieved and wishes not to settle because they feel like there's going to be a cloud hanging over their patents or some other right and this is a good example of the problem with that whole line of argument it seems to me and i understand why you want it but we look at it from a different perspective and the problem for us is that if what you end up with at the end of the day is an issue that only matters to one side and that's the situation we've got here we end up with an empty chair and we end up with with a one sided appeal and that's not the way the system is supposed to work and it makes it very hard for us to have complete confidence in the correctness of our disposition of the case when we've only heard from one side so the that the problem with saying well we'll take up an issue that we care about that the other side doesn't care about because they've been settled out of the case they have no more exposure is that we produce exactly the situation we have here today and it is not good i submit to you for the system to have that happen frequently and it's happened now in this twice involving the same party this is this is not a good thing from our perspective however attractive it may be to the l and obviously the courts are much better position than i am to to weigh those factors but i would say that the very concerns that you're espousing judge bryson would also apply to the supreme court rule that started that open different whereas what you've got there is you've got the parties who are involved in litigation have decided that they'll have a fixed amount that will be the damages in the event that one of the parties should should lose the parties are still adversarial there were still twenty eight thousand dollars at issue in the nixon case which if nixon had law just he would have had to pay  and therefore both parties appear before the supreme court the at a vindication four hundred dollars per person was liquidated and now it's just a settlement of the amount of damages everything about else about production went forward she had me would put forward in this case it seems to me that it's very different because you've got fifty thousand dollars which is going to be paid back from the six million five hundred thousand dollars settlement as i understand it in the event that you win any issue on appeal any issue including say the sanctions issue that doesn't sound like technology so it's not that you that says something about suppose if we have ten thousand dollars would you be making the same argument i think it really depends on the nature of the case and what the potential of finality as to that issue as well and you speak to that yes your on a couple points one actually the reason why and the basis for appeal on the sanctions issue was that there was no finding harm so in a sense i agree but i wouldn't there be an absence of what i don't i think that you have to look at the entire circumstances and what happened after that what happened after that was the case was moved to a new judge the judge lifted the stay the judge went ahead with full claim construction and then at the end of the day entered a final order stating explicitly that this issue was right for appeal and then the parties again have a settlement structure that depends on this war so in effect there is some sanctions amount that is out there that the parties a piece of issue unlike you engineering and so many other cases that you're talking about those cases are cases in which absolutely there was another track that had yet to be completed  to him in the scope of that will which is not the rule in every circuit as you probably know and what he said if i recall you can correct me if my my recollection the case is incorrect but i i gist of what he said is if there is a formal reprimand of an attorney the kind of reprimand that the attorney has to report to the bar and so forth that the sanction is crystallized at that point in a form that fishley formal and final that it's something that we will entertain an appeal on assuming that the judge is that i have no intention of imposing a monetary sanction this is the last that is going to happen it seems to me this case is distinguish from that one in several respects number one there wasn't an announcement of a formal reprimand of somebody who has to report to the bar the attorneys are not here so they're not in that case the only party that is in the case is that the second precision metals therefore seems to me to have very little to do with this case so response that your first of all in this case there was a finding that abbott was eighty percent responsible eighty percent reliable right so in a sense there was a finding although there wasn't a dollar amount put on that secondly this was a very for that it's subject i take it to the determination as to whether there's a project absolute determination is not in may i think that that has to be considered here and also although that is correct this is not an attorney reprimand it is a not analogous in the sense that there was a formal proceeding there was discovery the recent order to show cause standing to make that are you now reply yes in the context of this case in this industry there's been a number of patent cases in the archive the industry involving this party there was myself why you're here there's no doubt worry about collateral impact in the future in other cases of some of these rulings that have been made like to get rid of right so that the impact of the sting to your client seems  genuine on that point but i don't see it in the same way in sanction setting trying to move your plate in your appreciation metals posh we don't want to waste a lot of time talking about that  below the court over its interest size form over substance so for example she took the term data and she took that term even though the data is mention the claims only in which can be locked portions can be locked could not as a matter of fact be an equivalent to rom memory and that we find to be overly rigid it's a fin fact she really ignored our function when a result evidence and really her distinctions were very were upstream from that the memory structures that are shown in figure one she was talking about other elements really in distinguishing these these structures like air interfaces which has more to do with the coil between the reader and attack than the memory itself she ignored that mask memory is memory or mask rom is wrong and we cite to t she said that mask could not be memory and i just really makes no since it contains ones and zeros the only difference between that and other types of memory is that it's hardwired it performs a function rather than containing information in th colloquial sense of information but your argument is that that that's a distinction without a difference because it's a day that their way everything performs function in the microlight times world need get to that level i actually asked one question to come back to the back what's supposed to happen for example would there be a trial on infringement and would there be further legal proceedings on i know what we're asking for