qualifications i know these things because mr burton has been my clerk for the past year like all of my clerks mr burton has done excellent work he's proven himself to be a very good lawyer twice the selling price of the units and that our integrations our damages expert at management bankrupted the defendant at the type of infringement i'd like to focus on why we don't need to reach the damages because evidence is legally insufficient explains require a fixed switching frequency for a first range of feedback signal values then district court construed the meaning a fixed switching frequency to be a not very number of switching cycles per second jury to reach this product exactly or and it cannot because it's undisputed that the accused products have a varying number of switching cycles even up per second timescale so there's a separate issue about the per second construction you don't need to reach it if you agree with us on this because we asked the court to construe the take the five to fifteen percent that's right your honor for temperature variation gives you five to fifteen percent of what the problem is  means not no no very ation whatsoever it markman and we maintain that argument now so we have the house of a possible crawler who is responsive to environmental factors you're on your honor it may be a problem but it's not a problem for  claim construction where power integrations has failed to challenge it on appeal that's why we're in the world of chef america and not the world of eagle that they have no stories of evidence it's his view that the  appendix transcript twenty nine thirty nine and twenty nine eighty two dr kelly admitted that there is a five to fifteen percent variation due to environmental factors may your honor the reason that's a problem for power integration is not for a fair trial is if it renders the claims in operable or maybe a invalid of the for lack of it in the able man but it doesn't change the claim construction that governs the infringement judgment in this case infringement has to be a judge under the un challenged claim construction that fixed means not  here you're focused on the word fixed but i mean i'm wondering why shouldn't we be really thinking more about six switching frequencies and trying to understand what does that phrase mean and is there anything in suspect that the channel's us to command that switching frequency to one of skill in this article after reading this patton would be compelled to think of it as a completely rigid non varying frequency that couldn't be subject to normal variations to do environmental conditions your honor first of all martin and martin  nobody wanted to live with it if you're on it you know i don't agree with me on temperature variations controlling then you need to reach the jitter products that jitter products which are a substantial subset of the products in french for the separate reason that the that mark then and we do we are entitled to object to the claim construction and see gets overturned has a matter of law whether or not we objected to the instructions and passed is that this is the identical case because there was a limitation added at claim construction that was not part of the defendants proposed by construction the defendant didn't make further objection but was able to assert on appeal that the addition of the additional element was wrong that's their case we think this one of her second was construction or construction of the construction in order to get a better understanding of what per second ought to be so perhaps like i accept your idea that you did not waive the right to a question of whether or not fix which in frequency ought to be a completely non varying frequency but i'm not sure that you in any way preserve an argument over whether per second can't appeal except indirectly it argued for a fixed frequency switch fixed switching frequency meaning target switching frequency is intended to be substantially fixed that's very plainly rejected that he chose air meaning or to the jury that with in particular secular any variation that count correct exactly right your honor and we should prevail we believe on the first argument but if you don't agree with us on the first argument then we happening on the scale hundred those are sick sixty eight thousand times a second or varying between sixty two and sixty thousand sixty thousand times a second so it makes no sense if it's legally iranians to construe a claim  being ten microseconds and then maybe if you have a ten percent duty cycle that would be the length of one microsecond so he would not have any cycle on a on a microsecond switching cycle frequency in the gender balance varies and is not fixed on the microsecond level if you eliminate the gratuitous claim construction and we believe erroneous claim construction of that because of the five to fifteen percent which the other side of measure the exist if anyone wanted to say that the claim should be amended to include that as a natural variation they have when their opportunity to do that because they haven't challenged the claim construction appeal and we know that the judge and parkman was construing fixed to mean that varying by reference to a dictionary where he said it's not subject to change or variations that answer your question judged and we believe either you would replace per characters initial proposal which is fixed means not subject to variation and the addition of elements was there but if you disagree with us the infringement absence of legally sufficient evidence for infringement there was a lot of testimony about the one month feature and yes there was a honest testimony both lay and expert that drove the man but here's why that is not legal sufficient first one what requirement applying only to government purchased products and i can't seem to think of any example in the entire market value role in which the major some market sub markets requirement for a product governs the rest of the market so that's the first problem but the second problem notwithstanding that number one hundred or features power integrations as this court well knows because these cases came to you before and the general features they've sued us saying the same products in friendship or features it's inconsistent  think about the loss of time market valuable which maybe ought to be called entire market value exception to the rule of apportionment because in the sense that we're always going to be in the context of a multi component product and there's a patented feature inside of that larger product and it's only logical that every other component of that multi component product has some value some utility some contribution and some things in there that consumers are going to want and yet nevertheless we have this rule that there are times when the patent feature can be deemed legally to be the basis for the consumer demand so there has to be some room for allowance of fact patterns in which the entire market value rules will apply even if other components of the non patent components are regarded as certainly something that you visit and the interactions with us on access and let me try to answer your question here there will sometimes be features that are the driver of consumer demand and warranty application of the entire market value think of the pharmaceutical context if there's a new patented feature which provides all the therapeutic value of a new drug that will drive demand apart from the form factor or that digestion tolerability of the casing so i think there are certainly in the pharmaceutical instances many instances when she might find entire market value derived or attributable to the new patented feature in multi component products it's going to be harder but we think here as in lucent you should reverse figure out yes there are other features in this multi component product just as there are in every multi component product and yes those features are going to be important and and anytime somebody says simply not legally sufficient to say oh there's a government regulation that wanted more efficiency in government products and that created the zero seven i was the driver of the demand for power switching circuits i think of  argument your honor we do argue that but we argue that additionally here even if the entire market were the government the zero seven i wasn't proved to drive demand because you could reach the government regulations requirements through other methods first i'm out terms of the if you've got a valuable feature that is valuable to consumers going to affect demand automatically why then why is it necessary to shows something or and there are other valuable features to which or perhaps you need to this particular product like why if they're valuable to consumers doesn't that mean that they affect consumer choice and the other features yeah we think the fact that the other features drive consumer choices defeats entire markets understand but what i'm saying is if the if the district judge here said that you have shown that there are other valuable features to the fairchild products and i don't understand that to be disputed the whole ask about that correct or i don't understand that to be disputed but why isn't the fact that there are other features which are valuable to consumers testimony that that there are other features that drive consumer what if it's just that there are other features that consumers would regard as important so like you know any any power supply controller chip has to have certain components in order to serve its basic function and so those would always be in any controller chip and then now there's this patented feature that's introduced into into their control or chips that safe for the sake of argument there was a paradigm shift in the market place everybody needed these one watt energy efficient controller chips and that was just the new world everyone was living in and then every controller chip has a standard routine conventional well understood features and now there chip has the standard welcome vention al mix of course and valuable important and essential is not enough and crucially said even if practicing the discrimination method would be considered commercially and i have all it's not enough so it doesn't matter if if there are let me just go back briefly to the car example if mpg and government regulation goes up from twenty to twenty one and everybody buys the new fuel more fuel efficient cars it still doesn't show that the mileage efficiency feature drove the purchase of the car though it was the cars or thirty fifty thousand dollars we're talking about chips the designer standard are less than a dollar like ninety cents or fifty cents per correct or out or so but where there were the scale is way off they were not infringing substitutes admitted and that's in the context of other features which may be valuable but are because judge chen said routine and conventional of this kind of device or chip or whatever and under those circumstances do this understand it you with myth that the entire market value will be a property the other end of the spectrum is what is going where consumer choices are directly affected by other features but it seems to me there's a middle ground where you have a device where there are other important features which are due to that device in other words that they aren't repeated conventionally don't effect they don't appear in every ship or every device of th sort and that seems to be perhaps what we're struggling with you know is that middle boxes to whether that is a situation where the our market value rule is appropriate and what's your position on th aren't just routine and conventional creatures that you would find in any embodiment of this device that's on the market they're unique to the particular product that's being accused of infringement and under those circumstances is it appropriate to use the entire market value no because the other features defeat the notion that the patented feature is when striving consumer demand here for example that th come in and say hello i'm in this case saying the zero seven nine feature is the entire driver of consumer demand for pay no attention to that other monster where we sit around the dinner features in the same product that is not a case for an entire market value of all there may be another case to fifty percent of variance based on environmental factors what's your answer to the well that of the district everyone everyone below the parties and the district court understood that the issue was applying the claims as construed to the parks and  on their alternate constructions of the construction they did i think with one important addition or footnote if i might our expert dr kelly explicitly applied the court's construction of fixed number of may there was no showing below by fairchild that the in fact in the real world any of these parts is subjected to such temperature variation or such variation on the voltage on the here at age twenty one twenty but first tell me why why they don't preserve that fly by asking for a plane construction that didn't include the per second because some of our cases seem to say that if you ask her claim construction th case the problem is the presence doesn't exist in this case in perhaps the part in fact asked for a construction with out particular limitation made clear they objected to the inclusion of that limitation yet and the question was then well is there a waiver if that party then doesn't subsequently preclude the same position either when the jury instructions are read or otherwise to me answer is no no problem with that but that principle doesn't apply here because fairchild never asked for a construction without per second they think that this is a this is a little bit of a lot of understand how you can say that because they did it for a construction or whatever second the question is whether they had to do something more to preserve that later on when they asked for was that they argued about that sixth amendment very but they never engaged and switching through their proposed construction did not include the  troop but it didn't just didn't dress the issue one way or the other is the question is whether a proposal to claim construction that doesn't include the per second limitation entitles them to argue later on that their construction should have been adopted and the per second limitation should have been met it but again the relevant part of the construction they're challenging now is is in the construct it has to do with what switching frequency means now they seem to be able they seem to be arguing also that it was error to construction be no variation all and only with respect i would say that only goes to the fixed versus the hearing part of the construction it doesn't say anything at all about what switching frequency means which is you know that you have to construe the entire term but we have a lot more than that here is it possible that maybe what is really on appeal that's preserved and for us to consider on the claim construction question is the just the basic argument that thick switching frequency has to be non varying frequency a very absolute fix it frequency but any other more detail arguments and criticisms about the introduction of the phrase per second is off the table because that wasn't ever specifically raised or explored down below and so what's in front of us right now whether it's the five to fifteen percent or more of the per second language is just for the the the single thrust of whether the claim term requires absolute no variance at all i think at a minimum one thing what you said is the cases is that you can then assume later on that to preserve your objection and that you can argue the case under the claim construction which you think is wrong and where weird they say it where did they give up the objection that the earlier made by proposing a claim construction that didn't include per second where did they give that up they gave in when the embrace with the construction from the court where they say they agree with the court's construction there there there their argument is premised on the fact the courts construction is correct they're all resource rich that's what happens all the time you make a claim construction or going to market you lose the court agreed with fair trial and construed the term switching frequency to be the number of switching cycles of power switch per second and so forth and they're there saying we were right  versions was wrong the district court agreed with us we're a brit and i can give you five or six more spots where they get the same thing in arguing it orally and where they get it on tape same issue so this is not like it's not at all like the more than one occasion nobody's asked me for changes so that's the construction and it's a question of how the experts apply it and in fact that's one of the reasons district court denied jame all was because everyone agreed that it was a dispute among the saying the what your expert said which is that it can still be fixed as long as it doesn't vary outside of an individual second why is that why would it be a correct construction here to say claim construction why why is that the it's a correct construction but clearly to say the variations within the second don't count because that's a plain ordinary meaning of the t i heard second basis has a valid an ordinary meaning the you have any argument as to why it's the correct construct guess because again the specification repeatedly refers to frequency in terms of cycles per second that was their preferred position yes and she's now maintaining that their position now equates to the same thing no variation of you say we're making the same argument years in different words at page thirty two to describe  right not not even natural variation or very efficient at all but it's the whole term and i believe there was a question here earlier this morning to make that clear it's not just fixed it's fixed switching frequency and the destruction of that whole term is not during that's true and which so of there for it doesn't fly that's a pretty good reason not to adopt a construction that's for sure in the s f america laid out in some detail it is certainly a last resort i mean you know if there is any plausible construction that a boy by her ability her her or their own lawyer suggested an alternative so clearly there is an alternative to try to know what was there clearly clearly and in fact in fact there was really no dispute about that until correct with the footnote he actually never applied the court's construction he was asked about this and he said it's not important given the way he viewed the claim that's eight hundred fifty it's not for him and he instead kept trying to come back to this driving analogy which i'll try again i guess mike so my point is that in this trial there wasn't any argument over what per second meant as a claim construction question it was frequency jitter is something they've already had to pay for in an earlier patent infringement action i guess that obviously suggests that the frequency jitter feature of these controller chips are pretty unfortunate reality is they haven't paid anything for any feature so far well what was the damages verdict on that one well in the first case down just where it was thirty two million premises not entirely on jitter largely on the basis of the jitter features the seven six and the five one pads but that that was also premised on a third patent having to do was device structure so you can't really tease out a specific number because the point is that you know they are liable apparently for several million dollars on the frequency jitter feature of these could fairchild controller chips so why isn't that create some doubt maybe portion and if i could just tag along on that isn't this a royalty stacking problem you've got a lot of different patents on a given multi component feature or a multi component product and now manufacturers are having record right i mean this was never raised this is another argument this whole reference to the to the general verdict and the fact they lost the souther case and may have to pay for that never raised below never value the discussion about it so there's nothing zero in the record on that but just hypothetically speaking hypothetically could there be a case where there be a real the second issue sure maybe and in case where there is a real issue the party who thinks it's an issue raises it and it gets vetted and the experts take it into account to ensure it doesn't happen that was not the situation here and one of the reasons with respect i think it was not the situation here is because of the uniqueness of the facts of this case this is not sort of some runaway train n p r you have a patent in front of you as one of the other features that was identified as valuable here the jittering creature yes it was it was in the parks and it it had some value  collection of features in the chip but this goes back to we think some of the earlier questions you know you have to have a lot of parts to have a car or any particular device but if one of those features is so important it's the reason people buy the device in the first place that's a that's an application of the m p r that's totally appropriate and in this case we had you need facts that that indicated that was the case one where i think they got lost in the question i just wanted to emphasize i know i'm way over time it's not just a question of the government standards because that came up the government standard was critical it drove not just government purchases but there was an industry to testimony it drove the whole market and here's the kicker there was und d testimony from our expert dr kelly that one could not meet those standards without using this patent feature you had to have this patent to meet those standards first mocha done it it just would have been noisy were still making sales on the f x right it wasn't zeroed out on the sufyan applications where it was already designed him right i mean this is this was an issue the judge chesney rush wrestled with she really wanted to understand the facts around that and so you had a large customer who designed in the f x before g x came on motorola and it was a big cell phone charger program and you and you buy those chargers as long as those phones are supported to be a long time so sales don't  zero but the critical consideration is what is driving purchases of the new parts for the new designs and on this record it's undisputed that once g x came out there was not a single design for the f x part it absolutely disappear overnight like th thirty seven forty six and there you'll see the problem the problem is now have not a fixed line or is not a line but a gradual uprising line for the for the frequency variation within the first range to overcome it if you look at appendix thirty power integration sales as a result of all sales of fair trials infringing products so he's counted a price erosion lost profits damages measure is part of all our sales he then on the right and i get the forty seven point one million dollars for the your honor i don't have the reference right i can't answer your question frankly right now so i don't know if i was answering the waiver argument red we've made in your great brief which is why i was wondering was so ever actually learn or your honor if we think it's there in the past