eight for i'd like to focus my argument this morning on the jury's finding with respect for the like to start by emphasizing the instructional error because i think at the very least the court is going to have to vacate and remand for a new trial because the court instructed the jury incorrectly and this is that eighty six one is just a quote from the instruction to the jury samsung must prove by clear and convincing evidence that absolutely or her because well first of all i was saying that we were talking about shifting the burden of proof from one party to another that is almost per se prejudicial error and in fact the effects are but it there's nothing to prove that's what i'm trying to understand well your honor because this instruction came at the very end it was unexpected because it is the opposite of what circuit law is on this that there is a presumption of enablement we have not put in a any testimony about enablement in fact dr nye kirk didn't say anything with respect to the without undue experimentation he's saying i didn't have notice in advance of what the jury instructions were going to be no you know it was after our case was already put in that we learned that because it was not part of the proposed instructions the court said i'm going to give an instruction but when you have a jury conference with it was a generic conference yes it was that was your claim that issue to the judge well the jury conference under this judge's practice is off the record when the record was put on we objected and we explained this is error and there's no question there's been no argument that challenge was not  about this more or less might have been understood by the jury to make a name and i think i read they come back and they say in their brief we absolutely said we don't make and if so did did the did did did possibly that might be overcome had they said and stood up in front of the jury and said by the way as to johnson is that the reference as to johnson we are not  honor notes dr rights testimony and i want to get to this because i don't think he touched ducks and i kirk's testimony on the substance but the only thing that he would have been thought by the jury to be saying does or doesn't show and certainly show how to do it was trying to sounded like an hundred three case that says that when you put the burden of persuasion on the wrong party that is always of major importance so when the not here it wasn't just switching the burden it was switching the burden  to prove by clear and convincing evidence and of course the standard under hard sell is whether it could have affected the jury's verdict when we were put the burden to prove unable me clear and convincing evidence and you had heard our expert testified about this and then a lawyer gets up and says it that's not clear and convincing evidence and sound evidence of all it's certainly not clear and convincing evidence and what that the judge doesn't grapple with this and all because in the order of the judge actually mischaracterizes the hearts of standard he says that we have to show that it must have affected the jury's verdict t part of the bigger patent and it was just really is this different terminology used different analogy again irrelevant he says well there's one paragraph that even mentions flicker that's irrelevant to in that there's that little figure that goes along with it dr neckerchief if you that little figure but that one paragraph of seven sentence it just talks about you can average light over one cycle or were two cycles of white variation paragraph sixteen there are two arguments that are made as to what he said your your argument is that he never address setting and me right and there are any minute is that in that one sentence i guess that he did figure thirteen and this is at eleven eight ninety one he says scribing figure thirteen he says you use you when you reach a critical level of dimness it becomes flat so that's one cycle section of shutter speed is maintaining one period of the flicker flashing period and then when it reaches another critical level of intensity it jumps up it moves straight up to another maintain shutter speed or integration time of two cycles so that's where we see adjusting while maintaining maintaining that one cycle and then it just directly to two cycles he's talking about figure thirteen again with respect to claim one when he talks about the seven he sa yes this is on eleven eight nine nine you can see that quickly with figure thirteen where the shutter speed is flat in the region labeled one cycle that's an image or multiple of the flipper setting and then i'm eleven nine hundred again with respect only says with respect to paragraph and column sixteen he confirms with dr and i kirk said which is explicit in that text that you can average the integration time over one or two cycles an integral multiple is what what paragraph sixteen says of the periodic intensity of fluorescent light to eliminate flicker that's explicitly what it says he acknowledges what i that he had a potential conflict or bias because he knew the inventors of johnson what about the fact that they argued that that a lot of the the statements that your expert were making had holes also says shutter speed i mean integration time they're the same thing there's nothing there is no if system is firm this task johnson doesn't have to use the term that  to be asking maybe i misunderstood about whether there was a certain kind of credibility challenges to your expert independent of the specific things he said or not just simply establishing that the witness knew of one of the inventors doesn't establish that there is in the bias there what he testified to or are what the disclosures of johnson show and when dr wright was no your honor the i think that the key is that it's not contested that dr knight kirk touched on all ballou intentions and that what they have pointed to is undermining that actually confirms the one thing that dr relied on with respect to com sixteen and it doesn't touch wood he said about figure thirteen which is where he talked about the two limitations that they suggested right under mine but i would like to reserve the remainder of my time good morning your honour's minute please the court i was at the trial and i'd like to begin by answering some of the questions that have gone on answered this morning the first relates to the introduction of the enablement jury instruction that occurred after the jury charge sorry on what's the matter with the objection what's the matter with the objection is that it doesn't identify with their absolute issue with us they simply say that that statement is a as contrary to law  was not i'm sorry your honor how is it not contrary to law because it's not contrary to law because the fundamental statement that there must be unable meant exists that exists what samsung is really asking for is a second sentence afterward your honor weirs the instruction in the appendix i'm confused by the question is do you disagree that the courts that they have to prove it by clear and convincing evidence or if you disagree that that maps now i believe that they have to prove by clear and convincing evidence that the invention isn't valid yeah but that's not what the question but they have to do it with something that's enabled where is the instruction that we're talking  is on the clear and convincing component that's where their burden rests the to prove by clear and convincing evidence they must use something that is enabled not that they must prove that it's enabled they must use something that  report analysis the very significant that the charge as a whole creates substantial in ineradicable doubt as to how the jury was instructed this is one component of a twenty six page jury charge one very small case it was not yet i would like to pass that and go to a question that we discussed with your friend on the other side and at least that i was not sure it in the record and i don't think this is actually i'm not sure whether it's in the joint appendix and i want you to focus on the closing arguments there was a question about whether counsel force sampson said enablement of john you said johnson gives extensive details on how to build the system you could build it easily you could enable it well johnson and hashimoto are issued patents the patent examiner consider them unable there's no question about that they're anticipatory references so that doesn't really say that it's undisputed between the parties of the players there's no question that the examiner thought that they were in a and there's no question that that was the only evidence or indication that the jury had your honor had referenced earlier testimony from dr wright is indicating that he was addressing enablement and he was not enablement is not part of any part of dr rights expert report that excerpt that samsung had has talked about here  honor was part of a larger continuum of the discussion about the age for patent and the elements of each of the pieces of the prior art not whether the prior art was enabled itself had that in a discussion about the relate to any of them because the broader context at that point in time your honor is about the missing elements as it relates to the eighty four patent not to enablement indeed enablement has never been an issue in this case at no point in time it wasn't mentioned in the opening by either party it was mentioned in the close by me at all dr wright doesn't use the word enablement his expert report doesn't include the concept of enablement had that been a discussion of unable meant as it's being cast today by sam sampson would have stood up it would have objected to dr wright speaking outside the scope of his expert report it would have asked for a clarification to the jury on the issue it would have undoubtedly asked to strike that portion of his testimony none of that sequence of events was that at the time that testimony occurred and he didn't have any idea that there was going to be an instruction of the sort actually ended up being given so why would they stand up and say there is no enabling that issue it was they should've rightly assumed at that point that there wasn't going to be an instruction like this right because your honor at that point in time dr wright wasn't speaking to enablement he was objection wasn't that your honor they said it was contrary to law and as i've indicated i don't believe that that statement was contrary to law and i understand the point you make the instructor i understand your honor that you li no and that brings us to z four which is what what really did this happen and we have it would you mind it's time is short getting to the other aspect of the eight eight four argument namely that in the single page in the transcript i guess it's yes twelve to one eight where dr wright addresses the johnson reference how does that create a issue as to which the jury could reasonably find lack of anticipation of course your honor dr wright speaks in the ultimate conclusion to the idea that nothing he has seen or heard during the trial has changed his view about the validity of the patents that conclusion is sufficient that is enough but it's even more than enough because the burden continues to rest the entire time was indicating that there was a difference in language between the two and although counsel for the other side has indicated that that's not a difference at all the answers that's absolutely but the case is about understanding the relationship between the prior art and the testimony is they're not the same roger point point me to where dr wright said those are in fact different those have different meanings your honor i'm going to look for but i believe it's a one to two to one but that's the same page where he didn't say that they really just said that the judge johnson didn't use the the integration time terminology he didn't say that that terminology has a substantively different meaning from the terminology that johnson did use he doesn't need to say that your honor no no there are plenty of other bases by the way for which this jury could reach a conclusion that the burden had been met the burden never ships it's not that of the evidence is out there and a there is other cross examination factors involved in here is well right what what are those i see reference in the three to that he happened to know or did know that johnson inventors what else well anyway he testifies your honor the demeanor he undertakes in answering the questions the approach he takes when positing his different opinions all of that along with the other cross examination questions can be used as a corpus so for the jurors to understand if you didn't really see possibility of anything like that you didn't say look how obvious it is that he was aborting a question or look how he you know was self contradictory or look how he admitted that he didn't have expertise in a particular area those are the kinds of things that usually we see when we say the jury had the right to not believe him at all even in the absence of contrary testimony so what do you point seeking to crack open the jury deliberation process here by focusing on the very specific piece of art when in fact it's the totality of his cross examination that defines him as a witness and his credibility as a witness and that needs to remain primary that the star scientific case makes it clear that the jurors are permitted to evaluate and weight each witness separately and their credibility separately there is no obligation that they adopt wholesale everything he says he was challenged she was challenged as a witness he was challenged on these issues those are bases upon which a credible juror i would judge him a juror a jerk focused on so the evidence can in fact reach run in realty that is an issue of first impression for this court the impact of a post grant proceeding that has been incompleted on the presumption of the liddy during a reasonable royalty negotiation i ask that this court evaluate whether it wants to include the questions of volatility or ate a possible attack on validity during those component of the negotiation what has happened here based on what the lower court has done is that it has indicated that it is including as a factor mitigating against imperium sorel to rate the ongoing i patent not only does it apply that as a discount factor to the zero to nine pattern in the hypothetical negotiation it also applies it to the eighty four patent which of course was not the subject of the i quickly your honor if i could first presidential nature of shifting the burden from one party to another at best because we have not addressed it in our opening dr wright certainly made some noises that the jury might have thought went to enable outcome there has to be a new trial court cannot know that it did not affect the outcome on that record in terms of the actual j malt motion of webster the webster case which we cite in the yellow brief  the fifth circuit cases cited it at page four since for propositions that when juries must decide it they may decide which to give expert witnesses they are not at liberty to disregard the rule that you've articulated if that's wrong means that webster means nothing because in every trial the party that that won the victory can say well we don't know what the jury why the jury didn't print and they have felt that their demeanor was somehow offensive in less you can point to something that impeached or contradicted the experts testimony the jury is just not free to disregard it but if you were to say that it could be anything that  i think we're not thank you very much ok