now yes and one and i think cardinal cam the supreme court case is that once the infringement issue comes off of out of play the all the from defenses go moot and then  explain the history of how it went from the complaint which identified certain patents to the election of a certain set of claims i think maybe twenty claims and well and then ultimately to the four claims that would litigated at trial how did we i didn't see any notice or or anything else in the joint appendix that explained how the plaintiff went from those twenty elected claims to ultimately that jury referenced basically wanted to revisit that decision that summary judgment decision by the district court i e all twenty claims and then it appeared that through the federal circuit briefing in the team local appeal it appeared that the parties well yeah i know that's your position but i'm trying to understand quote would you agree that the federal circuit in mobile briefs appeared to be talking about the very claims that were in the sprint i think it's inventive concepts on the independent claims in further found there was even a concept on the dependent claims made separate finding of that there if i look in that team mobile federal circuit briefs i won't find any reference to the claims that you're saying thirty five or nine f  in the middle we talk about or you talk about some of these dependent plans including claim seven of the one five patent and something coming from an external device and and discussed the very claims that you're saying weren't part of that appeal yes it was discussed in the field during oral argument judge first ask if there and as we have jurisdiction over they are only from defenses not counterclaims so in that particular instance you go back to the current kim case or some other cases and talk about once those claims are dropped the affirmative defense so it would be it would be it can't us trying to go back and say those claims against you mobile we like back and do a summary and do a appeal on infringement of those we didn't use just just to reiterate what i've referred to in passing at the it was not meant to be retroactive stoffel if you look at the blunder time case it was actually meant to be pled and given notice in this case the case was done this case was passed  sense i think relevant to leaving erroneous judgments in place when we went to enforce the judgment when the mandate issued i think it was done at that point that that's the  apply collateral stoppel is against the very principles the blonder tongue and his progeny min and hall and others talk about in those instances in every single instance there are pending litigation cases are pending that pleading aspect it's allow the person who's played against a chance to argue we never had due process we did not have a chance to address the closed off the issue it was something that was just  got to the finale so i think the after chicago stoppable doesn't apply running out of time but let me just quickly ask hypothetically if we were to agree with you that that t or would we need to re mandate back to the district court to decide whether to re evaluate or how do we evaluate sprint's sixty b motion given that some of the claims that were litigated in this case and that were the basis of the damages verdict in fact were invalidated in t mobile assuming we agree with that collateral s support the damages were and there was no argument in the sixty b motion as i understand it only if this is wrong for sensually half a loaf relief namely no sprint didn't say even if some it feels like this is a kind of a patent policy will that says when a patent is still being pressed if it has been held invalid elsewhere great clause at the end of was there and it was that language there were it said basically there's a fundamental public policy the united states that you cannot obtain recompense for a patent that has been declared invalid and that's an overriding policy and that trumps contractual agreements the contrary it trumps notions of finality unless you have something where you're at the final proceedings and there is no litigation because when it comes to issue pollution there's no validity issue and in your case and sprint right i mean for whatever mendenhall gets you there it's as if i recall right there were the two cases involved in mendenhall one there was a political issue raised and the other there was essentially a contract which is to say a promise we will be bound by the other things so that seem to the patents and if you look at page ten of that and their brief which is thirty four seven thirty footnote eight for i'm sorry says of prism subsequently narrowed the case  valid as against you but it was in their colloquy in the oral argument here in the team mobile appeal that confirmed that all of the validity questions that the moco was advancing was in the context of an affirmative defense and not a counter litigation there had also been a request for counter claim most of those and so we concerned want to having not addressed the counterclaim as to one of the two and one of the three was there really a final judgment now and they said no that those those issues had merged but it is always been it was always a position that the mobile before the district court which is what the district court held in the sixth the motion but even in the proceedings before this court to mobile consistently said we are seeing we cross appealed to challenge the eligibility determination of the district court but how can they do that because if the end i think it is actually quite clear that i still want to one there was no counterclaim it was only i know you have a little argument but but that aside that that was only an saying that if at least it was deemed mobile's belief subjective belief that it had in fact filed the counterclaim on section one hundred one grounds well i don't know that it's a subjective belief i think it actually well it didn't fact file the filed s mobile appeal contingent on us concluding that there was a counter claim filed by t mobile on section one hundred one grounds no i think at the end of the day it doesn't matter because i think whether or not  moment we don't find or we don't conclude that there was ever a second one a one in validity counterclaim in the t mobile case and the section one hundred one in validity was based on and it was just an affirmative defen where does that take us well given that it appears that what was actually litigated at trial in front of a jury in t mobile were a handful of claims that didn't completely encompass all of the claims here litigate in the sprint case but what was actually litigated in this court was and this is the heading from prisms brief to this court the district court found the asserted claims to be patent eligible and then you go to the two pages i think they each provide very concrete ways that make this concept  raising these issues on his cross appeal specifically says similar tracking usage data to be applied for billing purposes when fifty five point thirty seven is not invented but rather inherent many of us paid services telephone or utilities mooted at the district court i think the answer would be no if well even if everyone was under the mistaken belief that these claims were still somehow part of the case but if the cortex can't control what this court is empowered to adjudicate well i think for purposes of dealing with this i mean this court undeniably adjudicated in my mind undeniably adjudicated that they never challenged it as being beyond the court's jurisdiction to decide at all but our opinion and i misremembered i thought i guess i remember being struck by the fact that our opinion doesn't say what claims it's adjudicate you can't tell from the opinion is there something in our opinion that actually identifies that the claims mean if you get i thought it says everybody agrees claim one is represented but representative of what the six claims are of twenty are right but if you put it against the context of how the case was litigated to them and then a the only bit the basis for the disposition is that is that is the cross is the cross appeal many cases disposed on the cross appeal the only substantive issue in the cross appeal is the eligibility issues that apply to all of the patents and  basis of the entirety of the claim that he has any question with this panel thought it was deciding whether it had jurisdiction of the side that at this point i think is beside the point and it declared invalid its judgment is final there is no basis for another court's t have a question where there is a different set of claims here but the logic tells you if those are invalid and these are you don't have an argument like like that you just have this has been invalidated so so that so the claims here must be gone which seems to me to make everything turn on what one can discern was actually held invalid and it seemed to me i guess that we did not say in our opinion i get several pay for pages over over the thirty four to three zero for example of the inventors testified that the inventive aspect of their parents focus patents focused on hardware identifier etc then instead the asserted claims begin with step of receiving so this is and then what cited there is exactly the six claims that issue here is one that's the three four five at and claim one c also seventy seven and eighty seven and then t x two which is  fifty five which claims eleven thirty seven to fifty six so exactly six claims that are in the verdict so i guess what i'm thinking is is that the asserted claims changed over time and by the time this was found out the mobile was recognising there were six of them and not more there used to be twenty five  but i don't know how you could square i mean i get that there is confusion a sort of sort of things mean because it has different meaning in different contexts but honestly how you get out of the fact that in response to the cross appeal seeking  it has all you know it is consistent when it said all of the claims that we raised in the summary judgment that was what we understood all on right three four three six three four seven eight seven all refers to all the claims referring to the summary judgment motion so we deny really we're bringing in all of vote everybody understood that have not it's not a small distinction well but if they didn't do it before they will certainly do it now and so you're now in a position where absolutely invalid claims that nobody can seriously doubt are invalid but in atlanta no i don't think you can doubt that the that the panelist self rule that way in any event it's going to be held to say that that one one party is is entitle to thirty million dollars and nobody else has to pay a penny on that that's not i mean that that's exactly what blonde tony and mendenhall say you shouldn't do just the one question i want to ask you are one of the answer that you asked which is what do you do if you say ok i'm not sure that those who are in or out i think you snotty reverse you send it back to the district court to make another determination of what the effect of knocking out those that have been in fact knocked out and then disarm and what if any to whether or not it's fair under those circumstances how would collateral stop and i'm using that term a little this leave here apply and in this context when you know we would know that such a certain number of the claims in fact it survives right but we also know that two of those claims are dead on arrival and then we'll dispute that they were tried and and and bec undeniably invalid and we don't and there's no way with the general verdict to know how the jury came out the way it did and there's a noticeable of law right from longer time his paddle words should not take a nickel for claims that are invalid you happen to know whether the damages case either the affirmative case by prism or whatever your defensive case was said anything about whether different damages might exist depending on which claims were interns i don't know that we but i don't know the answer to that specific course but it would seem to me the easiest solution to the problem would be to say what we know is you can't take from the claims have been declare three five zero eight one that you have to reopen the judgment because at least some of the claims have been declared invalid so we did in fact anything else isn't that your own words thank you no questions there'd be nothing you from just free filing a sixty p motion predicated on this new theory that half the claims have been validated therefore somehow that requires to set aside at least a portion of the damage that right if we were there y they're affirmative defenses once we drop those claims they're not tried those affirmative defenses become i also want talk about very briefly the exceptional circumstances this hypothetically if our opinion and t mobile appeal had in fact all that claims thirty three and seven in the decision in validating that and the others under section one a why then even though you may have some kind of jurisdiction argument given what claims are actually asserted trial he wouldn't really be able to have an argument that we couldn't have meant what he said what we said and the opinion is that fair to say mean i guess it keeps seeming to me that everything here comes down to how we interpret what happened in t mobile now it's true that there was not a formal i don't mean to diminish it by that formal counter claim about one one on the other hand if the parties more or less agreed by their actions or their words that the one no one issue that had been decided at summary judgment remained in that case why should we not treat that as a defacto acceptance of what amounts to a counter claim even though not formally said which went then and they built their argument to get off and but if you know it off to go off to the races but and then the striking fact is what you said in your briefs in this court in which you discussed not only thirty three and one but a bunch of other claims that were the subject of the summary judgment ruling but not tried you know i think in the briefing at  was this was a probably an unnecessary cross appeal if it was in fact only a form of the defenses but necessary because of the fees and questions but then the question is what can one tell from the briefing in particular i guess from your yellow brief their ground before ground about what you thought was in front of the court and your discussion of a whole lot of claims that were not try and communicate you thought that  the one o one issue before this court was not limited to the tried claims well i think you know it's hard to go back and i wasn't in the mind when you were drafting a brace was i want to one issue that we thought was this court on the t mobile panel because that was not try before you know the jury unless we could seriously characterize your action in this court as having effectively accepted that there was a counter claim  so there's precedent that you know any of those collateral estoppel case i don't think they were they were not per se but it was on see if you wave a defense you can go back and recover their own claim construction and force ability  evidence of infringement and at times it wasn't but it was defenses that the other side waked and intentionally abandoned so i think there's an exceptional circumstance in this case