asserted claim of the propellers patent is invalid did you really think that the personal attacks on taxing over going to get to anywhere well your honor he certainly didn't think we were making personal attacks on george stayed on it and if the court interpreted it that way we certainly apologize and basically set it in the whole of this all turns on the fact that he knew nothing about patent law well that is not it certainly judges they got most things about pat long week and again i if that's the way your honor interpret our brief that was not our depending on the moving parts in this case if we were to agree somehow with you on infringement and the liddy we would not be able to reach the validity contingent if you were to agree to agree with us i'm not infringement  in for purposes of this case the validity questions i think would be moot now there is another case is i think we indicated in the statement related cases asserting the the claims that were added in re exam so i think again in that eventual y the appropriate disposition of the parts of the case that you don't reach would be to vacate so that though so that we're not foreclosed from raising issues that this court has not had the opportunity to address yes your honor now that the claimed invention is an emergency warning light to be used while driving in a brain fog or other day dangerous conditions the emergency warning light provides a warning to other drivers by shining a beam of light downward along the side of the car while being constructed to prevent the beam from hitting the car itself so that reflected light doesn't distract or blind the driver of that car or drivers of other cars now ford's light is very different it can provide a warning while driving in dangerous conditions because it can operate while the car is being driven moreover it doesn't shine a beam of light at all and far from being constructed to prevent the light from striking the side of the car it's in fact designed to cause like to strike the side of the car yet that the difficult they were having is i guess the threshold issue infringement is what we're what cues product we're looking at right that's exactly right and the district court i did not look at anything other i mean when i'm the suppression did the district court narrow its and related to the infringement with the lens on he he simply said that your argument was moot because he wasn't going to consider it but he didn't say he didn't make an actual waiver finding are we to imply that that was a way refining oh no you're i think you're referring to his post trial is post judgment ruling what he what what he said there was there's no question that this is preserved i mean this was decided to get this was decided at summary judgment so even if we had never said another word about it  the issue was preserved we we also raise it in the post trial motion i'm not talking about ok actually are out whether the other side preserved the issue of infringement with the lens on i don't think they did your honor because you know if you look at first of all judge segall is in that that that page that i referenced indicated that that what he didn't understand that to be their argument and that to the extent it was he wasn't going to consider the two thousand page summary judgment motion that is the one that he granted presented made no argument about being the ford lamp with the lens on it was all about the altered lamp so they never made a case that ford's actual lamp the product it actually makes and sells infringes so we could of not infringement for ford would be the appropriate disposition you know clearly at a minimum there would have to be a new trial but we believe based on the record in the way the evidence was presented in the arguments were presented that judgment for ford would be appropriate in that instance your  not still marketing this is selling this is making this infringing on my patent for this portion of the pencil even though they've added this at the end even though you really kind of dissemble the pencil by having to break it off certainly your honor and that would be infringed that would be infringement why is this case today this case is very different because what we have here is not just an added element that is irrelevant to the claimed invention that's just an add on to the claimed invention w we have here is an element or a feature that prevents ford's flight from practicing the limitations of the plane and and here and here is why that's the case the claim requires a source of light no it doesn't define the source of light in structural terms it doesn't say it's a spotlight it doesn't say you need a mold and reflect or rather the claim defines a source of light in terms of what it must do and what the what the claimed source of light must do is direct a conical beam of light outside the housing so that it's visible outside doesn't strike the doesn't directly impinge on the side of the car for its lens prevents that from happening when with the lens in place no beam of light leaves the ford housing and in fact propels experted sixty seventy of the joint appendix admitted that with the lens in place it but the lens breaks up any beam of light that would be that would otherwise be there claim and it has nothing to do with whether the claim is a comprising claim or not a comprising claim well that's been their main defense because you're saying this exactly exactly but when the when the so called additional element basically prevents the accused product from practicing the claim limitations or causes it to function in a way that's expressly outside the claim then it's not just an irrelevant additional element that you can disregard or or break off of the accused product to assess infringement of that's what happened here so what you be programmed or programmable to perform a certain function and there was no question that no matter how the chip was actually programmed it wasn't it was programmable to do whatever the claim function was here it's very different here you have to have this  this source of like this this emergency warning light that shines a conical beam of light out so it's visible outside the housing in the district court made very clear that it's not just the protector have the capability of shining a conical team of light but even in the jury instruction it said source of light shines a beam of light outside the housing so that it's visible the beam of light is visible outside the lamp thousand and fourteen lamp doesn't do that moreover the light that does come in even if you were to disagree somehow and ignore their even get to the question of whether a beam of light directly impinges or not but even if if it doesn't lead a beam of light through then it is direct because it what direct means is that it strikes the side of the car without reflecting off things in the air or not there is no nothing in the intrinsic record to support this notion of all of a well intervening optical element dora lands being what makes the difference between direct and indirect i saw it so that was really our point your honor if if i responded to your question and just to be clear to come full circle to kind of where we started is it your view that if we were to agree with you on the lens portion that was probably considered that sort of it's all everything  issues in this case law yes that is correct you are now there's another independent reason why the infringement the summary judgment in french was not proper here and that is that the court refused to consider evidence that four presented that show that even accepting this altered version of the lamp with the lens broken off there still was beam light that struck the side of the car and that's this light what was called the light tools software evidence now the judge held that the you can't evidence reruns are awfully difficult some sign aren't they don't we have to review those with a high degree of discretion not that when your honor for two reasons first of all it was in the context this was not an exclusion of evidence at trial this was a summary judgment summary judgment of course use at the time the pad was filed cannot be used later just as a matter of law was not anything specific about this particular soft where so i think because it was an evidentiary exclusion based on a ruling of law that's also reviewed when the sols or case for example this court held that that's the rule and that there are the rule is just not supported the in the first circuit case three best case it was really a question of plain construction the claim require a certain moisture content content limitation really mean now in this case there is no evidence in the record suggests that what was a beam of light in one thousand nine hundred nine when this patent was filed would be assessed differently today using ray tracing software rather than drawing the r to me let me let me ask you a couple of the questions with respect to your damages analysis you're you're appealing that the courts will fall as finding like you i don't you're not appealing the compensatory damages are more despite the fact that you criticised some of the analysis that the district court dinner or some of the instructions at the district court again is that right we are not appealing the compensatory work that's correct your honor ok of third independent reason why an infringement judgment should be set aside i just want to touch on it because i see my time is running out is that this is not ford's light is not an emergency warning light and that's what the claim requires every claim recites an emergency warning like the specification makes clear that the invention is an emergency warning light for warning in dangerous fog conditions and all that but the district court found that that wasn't a limitation of the district on that was not a limitation and we believe that was a mistake and alternatively that that ford's system provided enough of a warning feature that that it it wouldn't matter if it was limited that's correct and let me touch on that last point first first of all ford's ford's lamp can't operate while the is moving it doesn't shine a beam of light on all of that so at a at a minimum if it were a limit if it was a limitation as we think it is at a minimum there's an issue of fact it's not something that could be decided as a matter of law and we think in fact it should be decided as a matter of law enforced favor because during prosecution to a clear distinction between lights that were primarily for the purpose of facilitating entry to an exit from the car and lights like his which were for providing warnings in dangerous conditions question of whether we're talking about functional functional limitations or structural limitations and i'll get back to the point about the preamble language if it was and you're talking exclusively on whether or not we're going to product with product with the lens off and whether that infringed but rather to consider what the structural limitations of the claim were and to allow the lens to be taken off so that those things could be analyzed and what i mean by that is this there are essentially a list of structural elements in this collection put together with the comprising trans if you excuse me of course but the key ones are as follows the first one is the source of light limitation it reads a source of light mounted within said housing for directing a conical beam of light downwardly through said opening along side of said vehicle are you saying that he took the lens off for purposes an alignment for purposes of determining the scope of the claims but did not do his infringement analysis based with the lens being on know it has met effect i don't think that the lens being off had anything to do with construction of the claims but in and i'll get to the how these these instructions evolve over time because what happened was he made a ruling after ruling up the ruling and ford's trial lawyers persisted in essentially ignoring them and performing tests we need to get past that well of course and but my point is that some of the the later instruction for example that talked about the way you measure one of these structural elements has to do with the way the light would go through the said opening in said source of light being positioned to prevent said beam of light from directly impinging on said side of said vehicle now that is a structural limitation that tells you how the source of light inside the hous is positioned with respect to the open and if you can see it if you know how light passes if you moved if you moved it here and there was this just say there's an opening down here you've got the light over here then the light would direct this way but if you move the light over here it would end there that essentially obscures how the light goes if you take the lens off at allowed our expert for example to make his measurements and show that in fact the positioning which is what the structural element requires the positioning was as cl but i'm not sure that at least for my purposes that that answers the point that i think joe malley and i were referring to why does that get you to the point of whether it was correct when analyzing the accused products to analyze them without the lands where the products are sold exclusively with the man well and just because a case because if you had positioned the source of light in a way that it did not prevent the beam of light here so that if you had a position in one way the beam might actually go straight onto the the car and if they have a position in another way of being actually goes away from the car and there's a good reason why and and therefore why are you not still obliged to consider the accused products as they're so big you are we absolutely agree with you consider them an assault but the structure which is the source of why the structure of the that it would still entrench absolutely so you're saying that as long as it's directed to to go through that opening it doesn't have to go through the opening bell and i'll just tell you there's there are a couple of issues about that number one is as it turns out the lands in the four devices put on the outside of the device and so it actually does pass through the opening right up till it hits the lens so literally it the beam does go down really alongside the vehicle and it does go through the opening and then it has the lens that point to one but you didn't really make court i believe that we did make that argument one point in the district court this got our you know a lot of different times i will say and i wasn't the person arguing but the district court did alternately say that that you you essentially waived the ability to argue were made with a lens are in other words that we were talking about the beam the past with the lens are not suggesting that we were measuring beam like coming through th and so what we're what we're saying is with or without the lantus the device infringed and what we did was to demonstrate it with the lens off because that's how you can show the presence of this positioning element that says set opening housing opening position with respect to that light so that it doesn't hit the side of the car and so coming back to how this reads on the four device that's true with or without the lens because the first structure is there a source of light that  because it's capable of doing that and it would do that and what ford has done is at that at the bottom side of that housing they place the lens there it changes the function but it doesn't change the presence of the structure and then the second piece of the structural out and or and here you have to you have to break them the lands on in order to it was cemented on and screwed on yes and it but again i say whether cemented on screwed on or there's a there's a opaque cover on that structure called for in this claim is present and lead the to the extent the way light is performing is recited here it is to provide an eighth description of the structure required so that for example when you say a source of light projected conical light beam of light downwardly through said opening you have to have a structure that will do that but there are lots of structures that can do that it can be for example as was illustrated in the pa so that it doesn't that's what was tested with the with the with the lens on so that there could be no argument that this actually does beam light on the side of the beer from you know i come back to this because ford has said over and over again in the bridge the object of their invention is the light of the side of the vehicle if you look at their system design specification the picture is almost the same as what is in the propellers patmos shows the beam of light going right down one side and hitting hitting the ground and that's the way they specified and then of course they put the lens on it that's true but they specified it with respect to how the beam was going to be directed and that's that is found it's in our in our brief illustration as in our brief and then when we took the lens up we were verifying that a course was in th the design specification is in fact what we shipped and over and over again with vehicle have to be a bill that's what we found so it's not that the you have to take the lens off to find an infringement because with or without the even with an opaque covered fringes what it is is that if you want to get an optical engineer to try to address the question of whether the positioning element is the way it should be that's the way you have to  said open so you're saying it does that but it never gets all the way it was going the way it does go through the edge of the opening there's no doubt so literally it does do that but no one ever made that finding i mean that that's the point we practiced before with respect to this issue of whether i mean that the district court said my rationale his rationale for not considering infringement with the lands on is that had criminals been clear from the start that he was challenging the device with the lens on his infringing the parties may have devoted more time to briefing different issues such as for example the proper construction of housing opening element of claim to so the district court at least felt that that issue whether the beam was going through the housing opening was not presented well i think there are two things number one i think the record is clear that the the lens was placed on the bottom and i think as a matter of pure physical science that makes it clear that if the if the housing has any with at all which of has required in the first of these two elements that i've been talking about so the record does have the the facts from which this court can see that even if you take that very  the if you take the view that it is not purely structural that this is functional language and it actually has to be functioning to infringe the record is still there but this would be an unfri method developed after the filing date was i think my argument is the former because i don't think that that's not the ruling that the judge may well it is the rule and if you're saying we should find an alternative basis for exclusion no what i'm saying is that the judge first thing i want to mention is that ford has said in the reply brief that they don't challenge the rule of the re best case and so the question is was a properly applied and on that rule really is addressing the question of how you interpret the claim i mean you're supposed to be interpreting the claim based on the view of one skilled in the art of the time that's different than saying you can't ever use any task to show infringement or not infringe well you know i don't think that's a correct characterization of that ruling because what they were doing was that that that plane had an element that required a range of moisture content and a range of more easter content was tested using a new test in that case which everybody said was the more sophisticated test it was going to be more accurate and the patent he had used the earlier test as he wrote his his claims now you can say well he was then you have to find out what the claims mean and then we automatically know what the test shows whether it's it's covered up or you can say we know what the claim says it has a spin a stated range of moisture content and new test is being used just to be more accurate and whether or not  this position that a patent on an emergency warning light covers devices that don't actually shine any light out of them it's pretty amazing and it's not just amazing in a common way it just you can't square with the claim language you know the claim talks about directing a big conical beam of light below the window so as to be visible from in front and behind the car well he's saying as long as it's mounted for that purpose right then that would be enough that's what he's saying but it that doesn't make any sense and more and more importantly it's not the way judge zagel construed the claim in the jury instruction this is at ninety five ninety seven of the appendix the judge vehicle so this notion that as long as it's able to do that you could put a piece of cardboard in there and walk at the bin that's still practices and claim that's just contrary to that to the courts claim construction and repels is never a challenge that what about his argument that the even if you're correct with your interpretation or the transient is correct on that claim interpretation that that the it's the light still passes through the housing before it hits the lands well firstly there's no record on that and in fact this notion that the lens is below the housing i think is if you look at the pictures it shows that there are screws actually going up so it's not it's clearly not entirely below the opening it's in the old it's at least partially in the opening and moreover  what the construction which i think your quote your question asked me to assume is correct says it's it passes through the opening and along the side of the vehicle and the claim requires a pic that it goes along the side of the vehicle so that it's visible from in front of and behind the car