as i may i did not find any place where there is any evidence that a customer was actually threatened with a direct versus just saying that no evidence in the record that any threat was ever only to a customer in general much less to a medical practitioner in specific there's no evidence in the records of any kind of that nature the most they have and this is a dispute that that statement that he was going to take action more that he was going to review with his attorneys and decide what to do and the district court found that neither side was more credible about the actual words that were spoken neither  the district court here in joint statements to all customers not just medical practitioners i understand the argument that michael makes about medical practitioners and they themselves can't get libel for infringement even though they can be infringers and be the basis for the indirect infringement allegation but there is no accusation that there's such a statement was made to a medical practitioner or to a customer in general if there were such a statement to customers in general distributors you know if there had been a threat to a medical professional that said i'm going to sue you knowing that that medical profession is immune from any liability wouldn't that him at least be a basis from which you could and statutes governing here and did they have bad faith when they said it is somebody like a patent lawyer who knows for sure that of suit can't be brought against a surgeon and have damages against the surgeon and the where perhaps even if the person didn't know they couldn't sue a surgeon if they said it maybe it could be objectively baseless because objective lead under the statute  have threatened any customer of any current medical practitioner or otherwise we just have the allegation and again it's a dispute that the district court did not resolve because it specifically did not find either side more credible witness that that there can't be infringement under the district court's construction of the term and i understand that your friend on the other side can argue there was no actual claim construction and it's kind of hard to read the district court's opinion and not at least  so do we read the district court as having concluded that that that statement there is infringement and on and i may do something about it that that statement was by definition  district court never made that conclusion in fact if we look at age nineteen of the decision the district court actually said and concluded that there was no record evidence that the rightness in ever made any false or misleading statements about the max you have to you have to know it doesn't cover what you're accusing me of being covered and here there's no evidence of any calling that dr reiner sin was saying that his pattern was directed to something that he knew it wasn't direct products might not be able to get spare parts it could be very well i mean we have asked for an injunction in that case this is this is it is very straightforward substitution case and it's your supplier market if there's no reason for there to pay for their product to be on the market it's the same as our product it's an infringing copy and if their product disappeared our product could cover the supply so it's a perfect situation for injunction and we have asked for it and if they be a rarity and they're srong medicine only to be used in a rare circumstance here touch him and i don't think there's any need for that strong medicine my client isn't out there in the marketplace want them to say anything outrageous he will just wants wasn't one so we reversed i you know because i'm construction at the primary junction stage even if it occurs is is libertarian and so we don't touch the claim construction now does going out and saying what you want to say then puts you in a position of bad faith because you have the district court having considering the claim in a way that says there is no infringement erroneous claim construction at this point because there is a binding of pulmonary a claim construction it was the basis for the erroneous injunction this court does have the ability to correct  it's the only one on the record and they're not supporting it in the market in construction and now say definiteness so it would just if this court doesn't correct the claim and shushing that construction could just hang out there that's what i was going to ask you you've got a definition it's wrong under claim differentiation because clean fifteen the dependent claim specifically says contacting the inner margin which is where your blepharitis occurs claim one independent claim decision and the mit vs shyer decision this court in those cases look at that claim language and proposed amendments that were talked about during prosecution but never gonna work never made it into the final claims that's what happened here although i go pointed to a statement in one examiner interview record that they say supports a finding of this a power disclaimer when the examiner asked to put that language in the claim you have and said no and language from the claimed language and i would make the point that it seems that the court was actually making a finding disclaiming anything that had to do with interior persons post here i think in this context that's correct because it lets you now would not argue for that well i would argue for that yes ok in the context of the court's ruling in which the court had a fact finding tour bluffer itis affects other none to the junction to the speech this is not to the fact that there's a final decision or do you disagree with that i don't disagree but i don't disagree that for purposes of finding one of the court takes issue with what the district court did perspecta that yes the court will have to address that further what about the bad faith i mean can you ask my answer my factual question i didn't see an allegation by you that any customer was threatened with exemption are infringers it says if you infringe but you're a medical practitioner with a certain method nevertheless you're not going to be liable this doesn't say well i'm that whoever it was who was speaking said i'm going to this i'm going to take action and look at that and the pattern is all methadone what the doctors doing with the device not i understand that yes there could be interactive for about a doctor hearing the same but that i'm going to take action on this pad that covers exactly what i do in my my office eighty seven dollars c they would be immune from liability and therefore any threat of litigation will have to take the leap we have to say the doctor could infer x and that and x would be objectively basis so that is bad faith i would say that they say that i'm going to take action on a patent that covers exactly what the doctor does doesn't require the doctor to take a leap it may require the doctor to look at the patent but the standard is whether a reasonable litigated would infringement and threatening litigation against clanked this potential customers so one question is this are enjoying the bringing in of litigation against customers no it just is supposed to be about communications to customers that they either might be infringing and or might be sued and unless you're right about the claim actions of the medical practitioner for purposes of the citing indirect infringement for a supplier but that and i need completely have indirect infringement if you have to react infringement so you have to have actual direct and printers in order litigation that's my question for you i don't know required to do their best to it an emanation any public knowledge  of infringement against the customers but they're not making those allegations to the customers i think you mean to the customers what i'm calling the language of the court but i am having some trouble with the language of the court that's what i'm trying to clarify so yes they are there make the injunction prevents them from making these kinds of threats and allegations to the customers and if the customer and but i would say is it's to the customer's not to see when you're making that kind of even if they're immune from certain what if they said that you know that situation that wouldn't be and argue that would not be an elevation or a threat against the customer it would again be explain an allegation  of infringement under that statute a threat to the customer to sue the customer directly yes or on that particular class of pass or yes but the record there's nothing in the record that indicates that there's any other class of customer mr childers the chairman of that there can be non medical professional customers and the district court actually addressed that it's a decision if we look at the decision of page one thousand six hundred and seventeen record even continues therefore there  is also a strong likelihood of success on plaintiff's contention that michael customers who are not medical practitioners are also not liable for infringement close quote relying on the claim construction and the known infringement analysis so  the section about medical practitioner liability in the decision he just sixteen and seventeen the district court addresses the non medical practitioner customers of my go so there are such customers household i think a couple of times tried to rewrite the injunction to be limited to just medical practitioners but it's not so limited we've read the words several times today at the decision of twenty three quote making allegations of pat infringement and threatening litigation against plaintiffs for tensional customers so it's any customers not just the medical practitioners moreover i think just trying to you made the point that medical practitioners are the infringers they're not