i'm aware that there are a lot of issues in this appeal i proposed only to discuss three major topics with the benefit of course i'll be happy to address any issues the panel would like to address the three things i wanted to was invalid and the third item i wanted to touch on very briefly were simply issues related to new arguments raised in particularly his reply brief they did not appear on their prosser pealed opening brief ninth she problem that they are there is no dispute here that everyone agreed to that trademark damages issues were going to be tried by a jury and no one said anything about reserving those issues for the judge to be decided later in the jury's verdict  advisory and both the case law and the rules are very clear on the consequences of that and with all due respect the argument that the lanham act is somehow special doesn't get them very far i don't understand the judge to have said he was creating the verdict as advisory so why are applied that provision we submitted to linda mac's statement about the court having the power to reset the damages is nothing more than a restatement of the court's power sitting in equity to do that but even if it's correct   common law trademark damages there is no provision allowing the judge to come in and second guess those damages that damage war there's no question a dairy queen that trademark plaintiffs seeking monetary damages is entitle under seven men to a jury trial on that issue and there is no question of the georgia law cases that we have cited that unjust enrichment is a species of damages under georgia trademark law and that juries cite those under georgia law and given that it was a general verdict on trademark images it is presumed that either the fled america or the state law applies judge lynn doesn't the judge has some discretion not under georgia law if you read the georgia cases is committed to the jur georgia common along trademarks that the judge would have zero power to make any adjustment absolutely not obviously judges retain power under the rule fifty standard if there is not substantial evidence to support it and if a new trial order is made to tie the basis the judge has that remedies well neither one of those are political in this case neither of the athletes makes a rule fifty argued that there was insufficient evidence to support the jury's common law trademark plainly a species of actually damage under the input of the wall and not one that the judge is allowed to it has discretion to reduce us threshed when it hits it but not reduce it but if you're right about common law we don't even need to reach this issue issue we believe that the test is the one we cited in our brief the best gas test which is does the during this this disclosure here is your argument that the figure adequately to what how what is the usual extent of the bacteria there are two things in the record that at least two things that show that the first is you have the drawing which shows the bacteria black dots only part way is that is that the heart of what the inventor discovered the true length of the passage that is normally contaminated by bacteria as distinct from what was previously thought or assumed by others in the field what the heart with that what was normal about this with the key obviously since the problem in the old or was that an excessively long heath forced bacteria up ultimately toward the bladder and created infections so of course anybody would be able to quickly see that you don't want the sheath to be too long but i don't think you're answering my question it is the is the real innovation or discovery here true length of the bacteria no no that was no to new york may want instead is that based on their studies the extent of bacteria extends to the high pressure job which they say is one point five centimeters plus or minus three  y significant ability to bring i'm obviously if we were persuaded by your argument and we send it back for trial on issues that were disposed of by summary judgment will be a trial then they'll be more  will all be back here and maybe will be another e mail and then it will just go on and on and on it seems like it's not in the interest of the parties to have this go on endlessly but that's only my uninformed view i don't know what is the truly in the interests of the parties as both you and mr west and mr quigley do it just seems odd that it's going on and on and on to me it is frustrating it's been going for a long time i suspect it once we get your rolls decision on this case will maybe be able to  u only have about thirty seconds left if you are going to keep up your rebuttal time so maybe you need to get to the third point very briefly with respect to the if there were a biography or their prosecute only have eleven pages of their briefs devoted to that and they ra three substantive arguments number one that was new for the license statement number two because there was no secondary meaning prior to the license there was nothing to license and therefore nothing in order to the benefit of the medical in three to make  given an opportunity to file some kind of further grief or reply to the reply there is a way to do that by motion i'm sure you're familiar with it so if that's what's needed i would think you would act accordingly in the judge's instructions to the jury and the jury verdict there is absolutely nothing in any of those about georgia state law the jury didn't decide anything under georgia state law they only decided that under the lanham act the judge  georgia law the judge's instructions to the jury four times cited the lanham act but never georgia state law further mr flynn never argued to the jury anything about georgia state law so consequently there is no basis in the record to assume a privilege to sleep that the jury decided anything about georgia state law with respect to common law it's true that they claim a common law trademark but that comes under the ages of rule probably of section forty three a of the lanham act which covers common law trademark sick creates a right of action for common law trademark and that's what they were pursuing this case forty three a is fifteen u s c the eleven twenty five and the damages they sought were under section eleven seventeen of or measure of actual damage but as if it were defendant's ill gotten profits well that's the way their expert mr kennedy was their expert and if you look at the record appendix pages legal category and you would say it's actual damage you know i say it's not actually hard something i mean it was it was based it was a calculation based on profit because their expert took what he calculated incorrectly calculated incidentally but calculated to be the defendant's excess profits and then he took a share of that and arbitrarily assigned it to the trade mart came up with a three percent trademark royalty it was totally based on profits specifically excess profits there was nothing else involved there were no there was no actual damages because it was absolutely no evidence of diverted sales or any peculiar it was to the plaintiffs as a result  case there were no actual damages here the reasonable royalty was a figure plucked out of the air three percent but it was based on excess profits you only have to look at six pages of the record to see  a sixteen seventeen through sixteen forty sixteen seventeen zero sixteen forty two that's the that's the testimony of their expert mr kennedy cla was never in the license agreement and consequently it doesn't apply to my client i think that mr quigley may wish to address that apologize for not answering the question but i think i could  brief i noticed that he takes this mailing him an article and clint's to say well that's what they are new in fact he has a statement he says well we already accepted this there is no evidence that he cited and there is no evidence in this record that the order except to mail in him and statement about one and a half centimeters in fact the inventor mr o'neill doctor in the old testified that there were a variety of opinions and nobody in the org knew exactly what the situation was and that if any of it's already in the field was going to be accepted it was dr cox not not may go with him and that that evidence is well i don't see it here but i believe we cited in our brief but it does it one that issue though the patent dr o'neill did testify very eloquently as to why he avoided putting in the one point five centimeters limitation which he already knew into his patent and he said he just didn't want to be limited by but that's not an excuse for not disclosing the invention that he later claimed so for that reason if you look at pages what do you take to be the invention big where what do you take to be the invention imes what do i mean what is the invention what did he invent the what he invented it was a catheter with a sheet and that sheath would go into only a certain distance which was either one point five centimeters or two the region of maximum pressure within  and neither of those nothing about either of those subjects was in the original application but was in the article that he published that became the prior art to his later see i p m case and he agrees that if he doesn't get the earlier date his own article sinks his patent bill i don't think there's any dispute about that people argue motives whether the nine hundred seventy nine application supports the limitations which became crucial to the granting centimeters was critical that said appendix page eight zero five nine through eight zero six two and also he admitted that he had it he had those limitations thing i would point to is if you look at the record a zero zero five zero which is the first page of the human one nine hundred ninety seven it says where is the parties to the terms clauses in the original agreement so that document was definitely a clean air and the present practice was paying seven percent of gross sales not fifty percent of net profits and your point is that the curing clause in the revised contract allowed to find otherwise it is but am i correct that you're abandoning your earlier argument made in your brief here i don't want to throw it in the towel but i don't want to waste this court's time trying to overturn or consider history cases which you have five to four minutes remaining let well that's it that's sounds like a new theory it is here's what he said on page forty three of his principle brief the jury instructions reference claims for both trademark infringement and  r competition in violation of the lanham act and common law trademark infringement and it wasn't just an accident one of the things the jury was asked to consider punitive damages the only way to damages could be allowed in this case because they're not allowed under the lanham act the only claim meaning in the case that would support punitive damages was common law trademark infringement which georgia law allows people to damages and if that wasn't enough the pretrial order which to fly into the issues that are going to be tried and this is it page eight zero zero two one zero number six reads whether defendant's actions constitute a common law trademark infringement no question it was in the case did you ask for a charge to standards under the things the jury had to decide they were not distinct and when you read the instructions the judgment we said trademark infringement and there was no dispute between the parties at the time on that issue which if something in the record that made it motion to strike portions of my reply brief he said that they had not argued in their brief which we were to add to what we were responding to that impedes use of the word illegal const you know gave rise to secondary meaning and in fact that page twelve of his yellow briefs that's exactly what he said that's what we were thank you all right thank you mr west mr quickly half a minute i thought he used half of it is no secondary meaning there was no basis for what he said he said there was you do so you have to be saying this testimony i'm going to make it so that's right and i think just like he testified under cross examination there if attacked the side of the license agreement he