that colonel's testimony was at least that he was at least qualified to testify why isn't the testimony that the that the because the entire assembly mechanism  no that's not what i'm saying and then they did does pivot because the entire mechanism right but the but the but the limitation is very specific the limitation says that these are just pivot there are other portions within the claim which say the pivot can be any in any portion of the the assembly but that's a specific reference that were directed to assess the specific rights of what point i'm asking you at what point are we think that this is you this is a it's a sufficiency of evidence that should have been knocked out by the judge on the rule fifty rule fifty motion if the if there is zero evidence that this no this portion of the claim doesn't talk about any other portion of the mechanism it is limited soling to the are there are other there are other provisions which talk about the assemble but this provision that that what you're talking about is fundamentally a claim construction question and if you leave aspects of the claim construction of the jury can you complain about that after the fact well but we don't get the choice of whether we leave it to the jury or not the trial we can say as defendants judge there is no sufficient evidence to say that this are now because of it object and say judge that's inconsistent with your claim construction or they are now seeking an alternative construction for the claim that one that we've never visited before whether we claim to say that that the pivot has to remain that the arm has to be independently peven which he never asked for that instruction well what i'm saying is if this language is determined in any other way that it is actually their preferred environments that the fact that they chose an alternative word in the claims they chose shift is meaningful i mean it's i think there's a pretty good argument that this claim construction that we're arguing about that even if it even if it's limited to the arm that it wasn't right well of course you know none of this none of these issues are our issue before the corps and it's not certainly not part of the record but we think that like they do ask us you present more evidence about exactly what was sold or what i mean are the only testimony that there wasn't some of the tother is one row testimony from one person but no documents no information that defies about what the so you would think that if if you were trying to design around that the tether component you would you would show the jury that there was no traffic and the only the only trustable you was the only exist the expectation is that the judge will say there's not enough evidence to go to the jury there's no need to sit and model the evidence for you but couldn't the very distant leave your you know one line piece of testimony from your one person was that it was sufficient in order to establish a claim to show that there wasn't fact an offer to sell but that was enough to show direct infringement and in fact we presented no mention that was exhibit i think i we've been very specific the offer has to be such that that under general contract until someone could accept it and it's got all of the terms and that he would have closed the sale so i mean it's one thing to say that maybe it supports the conclusion that that it was sold of the tother but but quite another to call it off or say your honor our view of that would be that you've got the product you've got the price term that was sufficiently clear with the price term to constitute an offer and obviously you're admit that it was sold by that particular corporate entity but we presented evidence of believe in the record of the fact that you could access one of the ways they sell this product is through the internet and if you access their website a consumer  asks accessing their web site could navigate with just a few clicks to where you buy the whole package the tether the unit setter without you presenting all of that as evidence we did present the websites i mean that we showed we got mr and your honor we we don't we don't frankly believe that it's sufficient for purposes of stablished in that claim if the entity that we sued is offering the unit for sale and causing the sale of that that that's established as the claim because you're generating interest infringing products and then provide a mechanism whereby a user can purchase the infringing product that's enough to establish that claim there certainly we believe was sufficient evidence to allow the jury to find that based upon the sale she'd the testimony at trial that being standard equipment they're linked websites and we'll get back to the question of damages in a minute but let's turn to the other issue and this claim construction question i mean i think i have to say i think you have a pretty good argument that the claim destruction was wrong but you all you do is drop a foot note and say we are standing to raise it as a cross appeal and the very case you cite says but you because you would raise it as an alternative ground for a firm and and you don't but you don't explain why the claim construction was wrong you don't explain what about it so you don't actually follow the very instructions in the case and we've got lots of case law that says raising something in a footnote is meaningless why isn't that wa your honor we believe that raising it the way we did was the appropriate way to do it obviously that was an accurate and so it was an accurate we believe that the the evidence before the court given the substantial evidence standard view sufficient to affirm based on the cl the arm it well if if the so before first of all the requirements of the rest are simply be pivotable and that the force of communicated to the arrestor simply if the arm is a fixed or attached to a that point your honor and distinguishing point five from claim one there's no requirement that the arm be pivotal taps i mean what you're describing it appears is a situation where the arm itself would be pivoted tash to the unit so it could it could be pivotal swing back and forth read if you read that lower like the language that it appears below in that claim with the language above if you read that context it's the force and this is what i believe mr fernald testify to that the force is chancer question yes that is what we're saying and so that shifted the language meaning that the rest are simply shift the bill but again it's if you're talking about wheels or police that are part of the assembly that rotate but not the assembly itself i mean it's like saying on my car the reels on my car could clear for when i go from point a to point b my car pivots my car is not operation of the assembly in the arm and what mr canal testified is that that pivotal pivotal motion is satisfied by the wheels and rollers which their own expert acknowledged that there was a pivot movement and that without the pivot it would work i mean you had to have  scope of the evidence presented at trial that that award can be sustained there's no doubt that the jury could have probably should've done something different ways calculated it but the end result was an award that was well within the scope of the amount if it was has to be wrong right well you know they what the jury did was they they shaved both the profits by two hundred thousand and the percentage by a few percentage points and we don't know exactly why they chose to do that whether that was to account for the fact they were awarding both or or not  what we know for sure is that the actual number is within the scope of the evidence presented in terms of damages our evidence was that's not good enough when the royalty you know the royalty is on the entire  there's some sort of double recovery i agree with you did lost profits you don't know why or how many sales lost profits from morning or if the amount of lost profits were changed in any event you have to admit that there are some sort of double recovery here says the reasonable royalty is on the entire base yes rather as we would move in that there's a double recovery because again they awarded less and told them we'd asked for so and then there's reasonable royalty on the entire portion of the base how can that be proper yes your honor i mean and had they wanted us before amount of profits that we'd asked for in that reason world either there's no doubt that that would have been grossly excessive i believe that's the standard by the way it's grossly excessive we don't believe it's grossly excessive for them to reward it doesn't lessen it so you're saying if there is an obvious legal error and what the jury did that as long as the numbers are still within reason it's ok that is what we're saying here are  that the the question is whether the award itself was grossly excessive we don't believe it is because it's within the scope of the evidence presented at trial i don't however think that's the question it's not whether it's grossly excessive it's whether it's whether it's legally incorrect because it's a double recover usually you have an inch of you haven't yet answered our questions about why that is proper to use the same basis for both lost profits and reasonable royalty reco the jury instruction that was utilized and the way was filled out it should not have been filled out that way there's no dispute about that i'm not trying to argue that if i had it all over again i would have used maybe the same instruction or but that was what was agreed upon by the parties and submitted about the court  jury filled out incorrectly but now here on view the questions i understand it is whether the as suggested by the case was whether the amount itself was grossly excessive and we simply don't believe it was the form would have been right and the number would have been fine but what happened here was that amount was split between the world city and the profits and that split them causes it causes it to appear that there was this error by the jury in how they explain it and basically calculating the royalty on the entire amount and so there's no so i think what i guess i'm saying or ours i agree with you there was an error in the way the jury won about filling out that form but i don't think that that's the same thing as and i'm doing that because we went over there with them if you know i'm going to let the district judge come out on me here i mean this case the mass would probably have the wrong claim construction though it's probably the what we think about that is probably waived we've got sort of real questionable evidence because it it's clear that your twin man can't be used with avatar there so you know at least you would have been subject to an inducement or a contract claim and it sure looks like you had all your tribute or selling these things or selling the tether with them whether they're separately wholly on distributors maybe they didn't sue all the right people and we've got debates about the scope of the injunction about debates about th remember that this this case was essentially sued out the day you know that the first day our public hit the market and the court didn't allow anything prior so we've got a very defined time period here you know this the pattern is relatively simple and straightforward the products that are accused are simple and straightforward absolutely the amounts are not excessive absolutely  and you know some cases cry out for a judicial resolution other cases cry out for a business resolution and why this why doesn't this cry out for it this is resolution well rather than running the resolved before trial and i got there been ongoing settlement discussion or there certainly were up to the point of the day of trial there were lots of discussions of varying different alternatives and so again i don't think think you've got some serious exposure for that multi million unit and on the tethered unit i mean it almost seems ridiculous that we're arguing about whether it was sold with or without a tether when everybody knows the thing doesn't work without a t and if it wasn't direct it would be contributory or induced infringement so you've got some serious liability exposure one way or the other here sure and had their sort of an infringement we would be in a different situation but they're also commencing they've also commenced litigation against all of the distributors well maybe that's another good reason to work out some kind of a settlement sort of done with certainly but you're here today we're only talking