the case tried before the jury when they dispute arose mr leach in in your opening briefing say neither party requested the district court to construe that term outer barrow and i that's not in the it's strengths the evidence offered at the martin hearing concerning the ordinary meaning of it that was the point i was trying only and then when we got to the martin hearing the defendant said look you know out of barrow you can't just construe allen or you have to control declined to construe that term and instruct the jury as to what and your lawyer meant it appeared going in that the parties agreed that it meant circular and it wasn't until we got to trial in fact the last day of trial that the patentee in cross examining the defendant's ex for women to some material in his expert report which was not offered on direct testimony about the meaning of the term annular rybin created a dispute and then the the defendant's asked the court or suggest the court t instruct the jury as to what angular river met in the court declined the court declined to do so in the motion for judgment as a matter of law and so they defend i mean the the patentee was able to argue to the jury based on the evidence improperly put before the jury concerning what claim construction that the defendant's expert  now if the court instructed the drink to that a fact it would have prevented the patentee from making the arguments they made in their closing argument if the court had applied that definition on the motion for j m a well i think the court should have ruled as a matter of law that the accused products did not form an angle of the evidence i thought compress area are from the original report that's not added during litigation that was in the original report so in this case these corners go all the the i'd like to point out that this did become a disputed claim term late in the case i direct your attention to the record at eighty four six nine one where the to that patent he was now claiming this is disputed claim term but they haven't specified exactly what the dispute is and requested additional briefing from the court on the issue did that a seven three seven one a four six nine one a eight one one zero through eight one one one have been allowed to argue to the jury in closing argument the testimony that they were able to listen from the defendant's expert during cross examination it was improper to argue that to the jury that it should start the jury that circular but also told the court that i thought that it didn't it construction cause because it was had its ordinary everyday meaning st up until the last of the trial when they cross examine the defendant's expert thinking that it was undisputed that it meant circular so as long as it's under spirit there's no need for there's no dispute for the court to resolve the he testified as to the undisputed fact that it was he understood that it was circular and it wasn't until the very end of the trial when they crossed eminent expert that th on the inside inside the tube there member when it was compressed there was a gap there and so there was nothing to press against the compression ring when it was squeezed and those windows c the compression were going to reform and the square manner and those windows were in all of the product and it was what caused during the trial defense witness actually did a demonstration where they crimped a one of the fuse products to a piece of co ax took it apart showed the jury that it was a square form so it didn't make any difference whether it was only a piece of co ax or not own a piece of co ax on the testimony was that it always happens it always resulted in a square sherry and there was no evidence then thank you gotta may please the court counsel there was more than substantial evidence presented during the four week trial of this case to support the jury's finding of infringement and damages the jury barrow and many of the arguments holly now seeks to raise before this court are directly contrary to the positions that holland urged before judge shield war oh and holland has raised a wide range of issues on appeal challenging the jury verdict and i want to make sure that i respond to all of them but virtually all of the presentation was directed to the issue about whether judge few who are committed reversible error that the court committed reversible error by not instructing the jury as to that instruction and then there's also an argument that there is not substantial evidence supporting the finding that the term annular rib is literally met so i think it comes up in all of those contexts and in each instance we believe the overwhelming weight of the record cuts strongly against tolerance position so i'd like to start first with the question of whether or not holland took it to at several points during counsel's argument he claimed that he asked the court to give an instruction an annular it he was correct that up up prior to trial  we repeatedly took the position that if you was going to be allowed to raise for the first time what we believed to be an untimely infringement claim it would be necessary to go through a further markman process the court decline to do that in part because holland repeatedly argued the exact position contrary to what it argues now and told the court that under oath to micro it was not necessary to construe the term but probably most important meaning annular grab should be yours it was our position when we got to trial that i'm asking that you advocate for a particular claim construction we did not your honor so it was your position that the plain ordinary meaning should be use it i want to make sure provide full kind prior to trial we took the position that it might be necessary to construe that term in a second markman process at of apply plain ordinary meaning when they're capable of assessing the plain ordinary meaning and figuring out what it is absolutely and so what is the plain ordinary meaning of annular robe with the plain nor do we ceded to the position that was taken by their own expert that the term annual arista is a circular series of projections or crests so mr leach refers to the circular not a perfect circle but it has to be perfect circle it has to go round the circumference of the cable in this instance but a square is not circular would you agree with that i'm not saying that's a perfect square and i'm not saying it has to be a perfect circle i'm not trying to  circumference of the cave and that's exactly what the jury considered and there was no dispute that was presented the jury was never there there was no contrary  plain ordinary meeting that was ever presented to the jury in this creates quite to the contrary again we exceeded to the very position that their expert talk and what the plain ordinary meaning of the term  explain to me how the jury could find that was an annular read short so that meet that may offer two parts to that so first of all the pure pollens characterization of what shown here is directly this is a topic that was  even in the corners of the quote square there is still there is the compression ring still project in word ford the wanted to lax and we can see all that right on the picture right like it's not a perfect square the edges are ninety degrees there angled yes and so even in these areas there is still an inward projection so with that term annular rid of means a only touched four spots that's not only around the circumference of the table the compression area it's not all circular even if i acquiesce in the idea of the corners have some degree of circularity so if there is  mean you know eighty percent of the distance is straight and then you have these tiny little curved portions on the end which represent the corners so i mean that's i mean this isn't like cres it and i mean i i saw the game and i saw the court focus on whether whether the jury could have found this square like shape to be circular enough that was the way i read the lower court's opinion around a circle so what those are annular projections in a ring yes your honor there are a ring going around the circle even in the corners there is still again there was expressed finding factually that there are still inward projection so it's not a square and it's a series of projections or as their expert said the series of crest and i would say again that our position is that under the plane  and if you were to cut that ring and you were to flate open you would see exactly a series of of crestor series of projections notably again i think the primary point being that their expert testify the plain ordinary meaning does not require a single projection that uniformly goes around the thing if you don't understand that it doesn't make any sense to me well i would  is not to second guess the evidence well the q b came out of his experts now and these again were arguments that were raised i do want to i would want to respond the same thing with a pentagon or a triangle two in the sense that will your goal is to make one circle quip another circle and compress a third circle within it and the way to do that is with projections then you could have three could have five we could have four you could have well absolutely one hundred again what the evidence shows if there is it in there is a continuous projection of varying depths that do go around this it is there is no requirement no say your honor with respect to annular rip the definition of rib right out of the dictionary which is why you know ultimately there are experts shows it is that he was a real encompasses of what position holland took up through this apparent change of position that they had during the course of the trial unequivocally unequivocally holland's counsel argued at the final charge conference before th i don't think that it needs to be construed i think it's a word that has its ordinary every day mean circular at that point from like i'm sitting here on google and riff is each individual bump in a series of bombs but the rib is singular i mean i understand it's their expert that said it so you know they've got to live and die by their own evidence but one presented to the jury there was no dispute presented to the jury about what these terms mean because we have ceded to their own position and with that i'll stand on my reason the rest of the thank you an expert in front of the jury about the meaning of a clean term they were cross examining him about the ordinary meaning of the term which up until that moment had been undisputed because all the parties had agree basically circular structure forming a radio real around the outer peripheral a one zero two seven nine he said basically circular around