mr davis good morning your honor smith please the court the key questions on appeal in this matter first relate to when does a stand within the meaning of the first limitation of asserted method claim and second when properly construed whether met tronics manufacturing process meets those limitations we submit to the district court made errors in both construing the claims and in considering the evidence of whether medtronic actually makes a stand with respect to the first question district court found that the two specific relevant steps the first one being selecting a stand and the second one being a fixing a covering to that stand needed to be absolutely done in water and the first step needed to be completed before the second step  we submitted that was an error in the district court committed that error by reading into the claim a limitation that required the complete formation of the state before the covering was affixed to the state in addition the district court committed error in a limitation of a rigid structure that is not a limitation that either party advocated for at the mark when hearing and further even at trial the district court offered no construction of what  structure should be it's not until the post trial decision in which the district court defined the structure to be that which must be a single device the district court did so based on the testimony without any  says you affix the covering to the stent doesn't that suggest the stent does have to be formed before you affix the cover it suggests that the stent could be formed we would submit that in the language of the following case that there is no intrinsic evidence that unequivocally precludes an alternate or meeting with you during your witness agreed your expert witness agreed that the have a stand you had to have a double spring and at least one of the central springs right yes dr barry agreed that looking at the accused process at the way the district court construed stated that you had to have that first single spring come in  process works so if that's the case then the affixing of the covering has to be after you have the stent right know that that's absolutely correct your honor and in this instance what the district court construed as a fixing or what are called unlocking stitches effectively the covering is stitched just a few times at either end of the double spring to make sure that it stays in place during the manufacturing process but that can't be the affixing in the claim because you have no stent it is only when the first single spring comes in and you have a stent that has a multiplicity of openings which is required by that first element that subsequent stitching becomes the fixing as claimed in these claims and that is the position that bores expert dr barry took and in effect it's not one with which we would submit  loomis disagree dr loomis men tronics experts simply believe that the stent was the double spring and when the locking stitches were put in that constituted a fix the district court agreed with him and that was error so what is your contention is that any part of the affixing step constitutes a fixing within the meaning of the client i'm sorry any part of the a fiction any solid and he's selling even though most of the selling takes place before there is a stand any selling that takes place afterwards could constitute a fixing within the meaning of any sewing that occurs after the stint has been formed would indeed is another reason why the district court's construction we believe is incorrect what the claim talks about is simply selecting the city the district court already and the requirement of the formation in addition as i mentioned earlier the district court required that the structure be single device this was it j a one fourteen in the record and there's no evidence in the intrinsic record whatsoever to support that construction the district court reached its conclusion without fully fairly considering the full scope and in fact relied as it said on the logic and grammar of the points but in doing so with the district court did effectively was to look at anna seton basis and just and see march through the claims and it looked at the references in the second step to fixing the workpiece that formed in the first but as this court's precedents make clear interactive gift express as well as the courts all went and no serious opinions and finally the rest case that in and of itself is not sufficient in each of those cases this court found any later step referring back to an earlier step could be performed out of war and that was sufficient if i could now turn to the district court's findings with respect to two seventy one g and damages the district court in this a finding that there was no control or direction by the named parties sufficient to cover damages for any of the importation that occurred prior to two thousand and eight when the talent devices were approved for use in the united states just to frame this issue before i address that specific point to make clear to the court what's at issue here on appeal are actually any sales that took place after january of two thousand and nine outside of the united states medtronic began selling these devices in two thousand and eight in the united states and there's no and until two thousand and nine of those devices were imported into the united states and were looted onto catheters and delivery systems in santa rosa california some of those devices were parent company was accounting for the sale yes the parent company was accounting for the sales but we would argue that under two seventy one g those devices were used in the united states in so far step graft component that was manufactured in mexico as simply a component and that it is not until the device is loaded onto a delivery system that is a completed medical device and one that can be used by physicians for its intended purpose and so in that sense there was a use under two seventy one g in addition for all of the sales that occurred in the united states those clearly are sales and offers for sal under to seventy one g and so that the issue on what the district court found only relates to those sales and to place outside of the united states after january problem in january of two thousand and nine and on that issue we would submit that the vicarious control here right and that's why the district court spent a lot of time really delving into the records and seeing who shipped this the district court did spin significant time we did make articulate a specific vicarious liability series leading up to trial we didn't raise the issue actuarial or during trial we asked to brief it post trial and i'd most said very clearly that it was  not any argument that you made and therefore he had to determine who shipped the materials and on that he made a pretty clear finding me he did make a finding on who shipped the materials but he also concluded that there was a preponderance of the evidence that the name parties were controlling and directing the manufacturing and there was no dispute that the name parties specifically made trying vascular controlled and directed of the design of the development and that the marketing in the sales and so the only issue here on which the district court parted ways with gore's view was on whether there was sufficient evidence to evidence what the district court said was that if he had a contract in front of him he might draw a different conclusion he didn't have a contract in front of him and so therefore despite the  evidence he determined that there was no sufficient evidence under a preponderance of the evidence standard that the named parties satisfied the statute we contended that was plainly erroneous grounds was the order of the staff's the second was the fact that there was a single device the court construed stent to also include the limitation that it was a single device and that there was not a single device in the process that later was how to cover a fix to it and finally the third independent case dispositive ruling on not infringement involved rigidity because the court also found that there was a claim construction for the first place that we always start is with the claim and that's what the judge did here judge davis looked at the claims he looked at whether there was a logic and grammar that he had to consider and he did and i believe that judge right or you've already picked up on that that there was a clear and it's even based because not only did it refer to step a but it referred specifically to the tubular diametrically adjustable stent in all four examples they also show that there is an ordering of the steps there's four examples in  specification each one of them calls for either making a stent and then covering it or choosing or selecting a pre made stand and then covering it the prosecution history also clearly supports the ordering of the steps stent has to be fully formed and has to fully exist before it can be covered so the accused message here of making a stand graft is actually fundamentally very different than the claim that we just discussed in the accused method we have a not disputed that any of the springs have the stent claim limitations that are we cited in the claim itself if you recall in the claim itself it says it must have a next year your service aluminum service it must have a law with a multiplicity of openings those are all so the district court found that this method never had a stent that had all the claim limitations and then a cover affixed to that stent that was clear fact finding below the district  did not rely on the read rigid factor of the construction under such tangibly rigid for that finding only relied on the stand claim limitations as re cited in the claim itself so if affirmed on this point  that's the incorrect the formation step was already in these claims because the district court construed another term in the claim at the request of the parties and that term was selecting and in the selecting step the district court stated that it simply represents a choice to make a stent with the necessary characteristics those characteristics are the ones that i just listed or the choice to or ready for him a stent with particular characteristics again those same characteristics including multiplicity of openings in the wall so in selecting construction which has not been appealed here with either choice the stent either being fully formed because it was being made or fully formed because it was a trial during direct examination or ask its expert if the elongated members weren't rigid what would happen he said they would wash down stream no vote is a testimony that all students have to be rigid i believe that that testimony by their expert indicates that all stands need to be indicates or says indicates or says he says that if it wasn't rigid it wouldn't work so that would indicate to me that it needs to be rigid and all of the examples are a stent that holds the vessel open and has rigidity to it beyond that at the mark when hearing course council actually stated to the court that my definition and i'd like to read that hi m honor is that day ask for a long dated members they got it they asked for substantially rigid and they got it and they asked for cylindrical and they got it and then they provided the definition of rigidity when their expert was asked what is rigid also have a certain flexibility that's correct your honor the court did recognize that it had to have a certain amount of flexibility couldn't be totally inflexible he did make that finding ok and so i believe that's consistent with his claim construction and substantially so i don't know when i was well but i thought i heard you say that it had to be absolutely which is was so construed on no your honor i'm sorry it's substantially cylindrical and rigid the way the parties dealt with that was that it had some what it  and we do not have that order because we don't have a stent with those claim limitations and we also do not have a single device because of course down that because the stent was in a singular form and because it was a structure it needed to be a single device in the court down that there was no single device that was then covered by a fabric in this case so the court found that there was a second dispositive finding of an infringement because of single device and so the answer is that we're not dependent on rigidity there are two other case dispositive findings by the district court that that hold up under not infringement as far as the derivative construction is concerned this court in edwards the cook in advance fiber acknowledged that derivatives constructions are appropriate where they are not inconsistent with the intrinsic record here that clearly are not inconsistent with  respect to the issues raised by counsel on importation and use of i to address those just briefly first with respect to importation this issue is moot if the court of terms of any of the three basics of non infringement what the court finds that there's an ordering of the steps that there is not a stand in this process that has the claim limitations of multiplicity exterior surface that that the court found made a finding on then there would be no infringement if the court finds that the single device is not is not in our process and there is no cover that is made to a single device there is there is absolutely basis positive and there is no infringement never reach the importation issue and the same is true with rigid but the district court defined that gore failed in his burden of proof on this issue of importation that there was no evidence that any of the name descendants actually imported the product that was made by the process executed in mexico that failure was actually not appealed what's being appealed here is the vicarious liability issue and they're saying that the court only looked at direct evidence and not circumstantial evidence and they're saying the court error in looking at the body of the reason for this is because we're never raised by terri's playability in pleadings through witnesses and in post trial findings it was never rates the court raise it to respond to and looked at all of the evidence the evidence for now is saying to trying to mexico if you asking this court to make fact findings in the first instance on appeal on this particular issue the court actually said as chief judge rader noted that to find one of the name defendants directed any of this importing activity would be a mere assumption that said j a one thirty six to one thirty seven what they're asking this court to do now made today but beyond that use is also weight because the first time the act of infringement of use under two seventy one g was raised was in the opening brief it's the first time it was ever raised for could ever raise use that trial states the reason we know that that wasn't a use is because in two thousand and four to two thousand and eight the med tronic talents and graft was not f d a approved in the court made a specific fact finding on this issue at j seventy eight the court stated from two thousand and four to two thousand and eight the talents and graph we shipped outside the united states for eventual sale in use in foreign countries not approved for sale or use in the united states court's judgment of not infringement is based on three independent bases here as we've said and that importation use are moot further gore's request for judgment of this court if it reverses an order of steps and on the issue of rigid is also misplaced for two reasons one there are three reasons for not infringement because there is a single device which they have not appealed they have not objected to want to feel that the court found that there was a single device and they did not appeal the fact that the court found that the single spring in the double spring when placed together are never connected to one another and therefore there never form a single device that is not appealed either so the bases for the courts finding of not infringement on the single device issue is really not appealed and should stand as a basis for not infringement claim scuse me on a what will become what is it that says it's you what the court what the courts well your honor with respect to single device the court made of affirmative finding that under gore's theory of infringement it failed for two reasons and one of the reasons was that there was not a single device the court found a plan construction that stent required was required to be a single device as a matter of putting construction and found that because stent was the singular form and that it was a structure which is also not appealed that stent is a structure the cour found that it needed to be a single device and in as a fact finding which is not disputed on appeal the single spring in the double spring with are never connected to one another so there's never a multiplicity of openings so there's never a single device that was a matter of claim little over two and a half minutes thank you very briefly your honor at page forty two of our opening brief section two ladies and titled there is no basis for the district court's requirement that the stent have a rigid structure we absolutely appealed that claim construction issue and the reason that we did it is because the district court raised that for the first time in its opinion i heard mr laughlin mention something about post trial briefing there was no post trial briefing here we asked t court for the opportunity to briefings post trial we did not get that opportunity and so it is true that for the first time here on appeal the used issue came up in this brief and the rigid structure issue came up but this is the first time that we can raise it the use issue we disagree that this was not an issue that was raised before throughout the proceedings and throughout the record we argued infringement under two seventy one g it came up in openings there was part of his damages theory was based on this use and in fact although knowledge it's not and i recognize now it's not in the ga that was submitted to the court medtronic damages expert mr thomas even responded to that and and broke it out in that way as well so the use issue was absolutely before the court it was not briefed but that was because the court did not allow us to do any post trial briefing mentioned that there were three issues on appeal that any one of which would be dispositive but the fact is read carefully the district court's opinion merges them all together for example the district court required that the stent be completed before the covering begins but the district court construe the stent to require a rigid structure the determination can be made on whether a st selected informed without considering the rigid structure issue and on that point as the court noted the district court made no finding about intrinsic evidence that would support the definition of a rigid structure the advanced fiber case that this court issued that said a derivative construction is appropriate still says that the court is required to follow the strictures of philips in construing its claims the district