you say that it's whether the jury's verdict thirty six thousand four hundred and fifty three dollars units in france is guess the clear weight of the evidence when the evidence of record is that only eight thousand six hundred and eighty nine old after the asserted patent was issued i how is that different than issue three which says whether substantial evidence supports the jury's verdict that thirty six thousand four hundred and fifty three minutes and friends when the evidence of record is that only eight thousand six hundred and eighty nine units were sold after the asserted patent had issues my concern is a lot of this stuff seems to am i wrong you're not wrong your honor and i apologize for any confusion from a long statement of issues that was really designed to reflect the different issues raised in the  and and for now one of the red brigades there's a reference to the fact that the corporation here was not served and yet the judgment was entered against the corporation that's an error that has to be corrected right certain companies entities were included as parties but the company for which there was evidence of any sales of accusing products was not a party and there is no judgment against that party and that's really one concern that we have is that the individual was found liable for infringement just as i understand  infringement or piercing the corporate veil so to find mr chung liable for for direct infringement there needed to be substantial evidence in the record that he personally made sold off and for the products he distribution with the sale summary so for the jury to find him personally liable is unsupported by substantial evidence and the district court in its order denying the gamble well and the other  this point did not identify any any evidence that the jury could have relied on to find him personally liable beyond the infringement that there are issues with damages the earlier sales i didn't see that argument that this was stated in the arguments city to the jury that not all of these sales could be used as  there was some sort of clear statement and instruction that you know you have to draw a lot of jury instruction number five state that you seventy one a description that infringement is only during the term of the patent but there is no instruction to really limit the damages to only post issuance of the patent and you're correct your honor during closing arguments levy's counsel instruction and he consistently testified that sales went through his companies that his company ran the website but also that his company had employees other employees beyond him other people that made decision well so there siri was what we've held in word tech in other cases that an individual corporate officer can't be liable for acting on behalf of the corporation where there's no  so the question here is whether the testimony would support a conclusion that that mr chang acted in his personal capacity as opposed to acting as a corporate officer in making the sale company but they cannot then conclude without evidence without testimony that these were there for me personally by mr chung outside the scope outside the scope of his company  sales by the company and for the jury to attempt to pierce the corporate veil when one there was no instruction given to him there was also in post judgment briefings levy admitted that it did not pursue an alter ego theory the corporate veil analysis is not even the correct standard by which personal liability for patent infringement was found in the context of this case they then go on to cite international manufacturing which of course found the officer liable for induced infringement and not for unmarked patent articles there was no evidence provided at trial that there was any compliance with the marking and yet when we sought to when channel when the jury instructions were were read he objected to the lack of two  since there was no inducement seery no serious piercing the corporate veil and we've specifically hell in word tech and other cases that a corporate officer isn't libel personally for doing the corporation's business well in this in this case your honor the corporation was never shown to exist so what you effectively have is mr chung's bear testimony alibi testimony if you will that another actor himself reading the testimony the testimony says that he did it as a corporate officer which we have specifically held is not sufficient for direct infringement liability so the cases in which that is true involve a corporate defendant that's part of the case and that is stipulated through the pleadings to exist and to be a party that can shield an individual from liability but again in this case whatever the what evidence is there in the record that the company didn't exist well there's no evidence that the company did not exist and and mr chung said he made the sales for the company statements for example on seven hundred and sixty nine so when the company sells it you're selling through the company correct all the promotions were done through the company right and so we have to we have to ask can his alibi testimony in that instance transform this case where he's a defendant who's who's liable for his own infringement can it transformed that case into a case where nonparty is suddenly shielding him from liability and and the answer to that is no that that he was shown to infringe the jury heard substantial evidence consistent with his infringement they heard other evidence where he said i did all of this on behalf of the corporation but but they were not obligated to credit that testimony yeah but the problem is the burden of proof is on you to establish that he made the personal sale and we  and based on the the sites that i read we feel we've we've met that burden substantial evidence that he sold on his own behalf that the that the jury could reasonably conclude the sales were made on his own behalf then you agree that you had t that the sales were made on his own behalf and not for the corporation right i do agree with that i will add because we jumped right into this that chung ways and the argument that the jury improperly pierced or that the evidence of his infringement was not sufficient he never wait wait a minute you said you're not you said in your post trial briefing you're not relying on piercing the corporate veil you're not drawing on that here today are you know no of course what i'm saying is that chung waived the argument about alter ego and he wave  regarding the the timing of infringing sales again the the question of when sales were made was not raised in chung's rule fifty a motion so we introduced cross examined him on that sale spreadsheet never raised it in his case in chief never argued never argued about it in closing argument this whole argument i don't get is that you have the burden of proof where's the  that the sales on the st page were made before or after the patent was issued when the nd page says they want there's overlap your honor between chung sales period on that page one thousand and fifty three and the sales spreadsheet and chunk and the patent term so chunk didn't object to that evidence we argued to the jury that all the sales made after the patent issued right it purports to show sales made after the patent issue chung argues that those sales should be subtracted from the st page but the jury was never told that no one ever testified to that nd page he now test he now argues on appeal that that nd page is represents the only sales that were made after issuance but in fact the jury never heard that the jury saw two pages of a spreadsheet which you know in interpreting that spreadsheet you could you could determine that those two pages could should be added to each other that they perhaps represented so this is a fact issue your honor where we showed the jury and chung testified about that st page that shows thirty six thousand four hundred and fifty three dollars sales the jury the jury was confronted with an overlap between that sales period shows sales from september th the next day through the end of the period so that's what the document says now that chung would have you believe that that nd page shows the the and sixteen which is before the pattern this should run it right you have a you have a broad range of days during which sales were made but you have no granularity as to when sales were made in that range so that becomes a jury question when were those sales made the jury could have concluded hey those sales were made before the patent issues you get no damages they in fact did not and they decided the sales were made after the patent issued now on substantial evidence the aggressive  proper only where the evidence construed in the light most favorable to the nonmoving party permits only one reasonable conclusion and that conclusion is contrary to the jury's verdict that's not this case because you have months of overlap i think five months of overlap between that sales item summary at one thousand and fifty three dollars and the term of the patent and it's a classic jury question how many of those sales fell within the term of the patent how many of those sales should we attribute to damages they could have said zero and and instead they said all and there's substantial evidence for that decision just as there would be substantial evidence for any other breakdown of the dates of those sales because the document let me ask a different question here what no one you say the deep  was never sir you had a judgment was entered against them correct not correct we don't say it's not my understanding the deep bass was never served we say in footnote one that another company owned by  don't have anything at my fingertips that says they were or were not served my understanding is they did not appear mr chung made several references in his briefing where he said i'm not advancing the interests of the paper you know i'm not saying anything on  and this case is distinct from work tech and so in several ways in word tech the jury instructions and verdict form were so defective that this court threw out the jury's individual infringement verdicts as clear error the verdict form in that case actually had no option for direct infringement not so here where the jury found that mr chung directly infringed mr chung jointly submitted without objection a jury instruction that at the charge the jury with determining whether he nonexistent during the alleged infringement because it neglected to file annual statements there was no instruction on that so the jury was rather listen to terminate that fact pattern and nd the nd plaintiff's theory in word tech was that even if the corporate defend nt was a valid corporation the jury had heard substantial evidence that supported piercing the veil now apparent that a cli we don't think that to the extent we don't think it's correct to instruct the jury on piercing the veil because that's an equitable doctrine under california law but neither of these issues that were crucial to work tech are present here we have a direct infringement verdict that was on objected to that was not was not raised in fifty a motion and that that verdict stands on substantial evidence that mr chung himself directly infringed his testimony about another actor esquire distribution amounts to simply alibi testimony that is that another actor was involved it could have just as  easily been another person to try to deflect liability from himself with respect to marking we met o simply never carried his burden under arctic cat to articulate the products he believed were unmarked to put this in perspective chung is moving for a new trial on failure to mark but he never raised the failure to mark at trial if you look at the sites in his reply of page thirty he's pointing to pretrial filings and post trial motions to to point to his supposed meeting of his his obligation to point out unmarked products but he points to nothing from trial this is a fact issue on which he is looking for a new trial he never brought it up he mentioned in closing argument i believed at the trial but that can't meet his burden of production to point out unmarked products compliance with two hundred and eighty seven is a question of fact arctic cat tells us that and in fact arctic cat reviews closely the evidence at trial that the alleged infringer put forth to meet its burden of production on this issue of identifying unmarked evidence about marking whatsoever and there was no other sack finding that happened in district court chung never moved for summary judgment so he's not appealing any other fact trying to exercise other than the chunk points to his company the fact that there isn't a sales record from his company is really their burden to overproof they're trying to flip that to make it chung's burden to establish this defense  they say that the alter ego issue was not raised and that's correct well the fifty eight dollars does say that there was no proximate cause and alter ego was not raised the trial it was not in a free they're not talking about ego liability you're not talking about a district court didn't talk about it we're talking about whether he was improperly held liable for acting in a personal capacity when he acted in a corporate especially because the only other evidence of record is the nd page squarely put a six hundred post issuance they are not free to make assumptions because i'd love to admit there was no other testimony of that they did not meet their burden asked to the ask you thirty six thousand sales because there's no other type of testimony or evidence in the record and asked for the jury instruction chung did stipulate to an instruction regarding him as an individual because that matched a claim that was brought to trial that does not stipulate to liability of course they still have the burden to prove his liability and if they chose not if lucky chose not to bring a case  esquire this was their case this is their choosing to go after him personally and they have not put enough evidence in the record to support a jury verdict or to support the district court's decisions on that issue and that there's no more i'm saying he was agreeing to the statement of law in the instruction he is not agreeing that they met their burden of proof as to that claim but the jury could find that based on your stipulation right and in the jury instructions and when it's defining what infringement of the jury should be seeking if says whether or not mr chung as an individual is liable for