thank you your honor may it please the court the inventors of the two patents that issue here invented a surgical device and method for placing a rod into anchor secure to a patient's vertebrae without having to open up the entire  back and expose the spine how to do that the device had to enable the surgeon to put the rod in the right place without being able to see what he was doing and to do that the device as warsaw says at page two of its brief had to be a specially designed instrument you support arms and extensions attached to the anchors the come together outside the body to form a pivot access that allows the the rod to be swung in a way that it so that it will necessarily end up in the anchors every description in the done here the claim since construed go far beyond the device described in the patent and cover a broad array of devices and methods including devices and methods used long before these patents warsaw sought that broad construction to i don't believe there was any variation in your honor any actually what happened to the jury but the jury instructions was the court didn't actually read the instructions i'm sorry the constructions to the jury actually said you will see if she told the jury you'll be glad to hear that i'm not going to read them  the the that the two sleeves come down right and they are not connected together in fact the only make they can be but they're not as globus sells the device some surgeons did some surgeons did it well when they have to ultimately that you put the i think i think probably not to be candid i think with good if you've got something because as as judge krause pointed out the jury didn't distinguish on the validity globus was found through a friend infringed all the device claims so i think  if any of the device claims survive that it would i don't think there'd be any basis to argue for a different damages result now to get into the validity arguments a little bit of the claims were construed very a connecting element there's no dispute that mcafee had those and instrument which was can scoot construed to mean implemented so i disputed that mcafee used surgical instruments the instrument has to be associated with the connecting element which means it's an implement for maneuvering the connecting element expert testified that mcafee used his instrument the endo calley to maneuver the rod into the patient end of kansas city line you know basically i think but it's but it's understood it is you know it's advance pre determined position or predetermined location is a position determined in advance  to be clear but this report concluded construed the one referencing limitation that way didn't construe reference but work site it's brief it page sixty six indicates that that also means establishing the position at the market hearing or worse so i told the district court that the referenced and referencing limitations in fact don't impose any kind of a fixed relationship acquirement what was actually arguing for that at the market hearing in warsaw told the court that the reference limitations of the survey claims in contrast to limitations in some of the on a survey claims which talk about fixed relationships fixed geometric fixed mechanical do not impose a fixed relationship among the various components is that one five one five eight of the appendix  and are broader than and are not limited to a geometric relationship among the components and in fact they say that in their brief also at page thirty nine footnote nine what is worse i explained the reference limitations quote  relative to each other one five one six zero or the appendix so once i made it very clear that these limitations were broader then some sort of a fixed relation ship and don't require any particular structure or mechanism to be doing the establishing or the referencing and made it clear the district court that the construction they were proposing which is the construction that was adopted reflected that broad meaning so that was a long winded answer your honor but i think given that be the way this claim construction came about i don't think there's any reason to read the construction as requiring that you know this instrument be bolted to these anchors and that's in fact what globus was arguing for and globus lost out on that bad argument that the district court rejected the notion that there had to be a fix may please the court the district court correctly construed the asserted claims according to their plain meaning which is also consistent with the specification principles of claim differentiation in this court's case law even if glob is new claim construction arguments on appeal were waived their merit lists similarly globus is attempt to impeach the jury's verdict on invalidity is equally unfounded and it's starkly reverses the position that globus took both at the market hearing the end in telling the jury at closing argument what the claims as construed means globus now argues that because the claims were construed and i'm going to claim forty five judge grayson which i agree is the broadest claim of the nine forty nine because the they say now page i think it's forty nine of their brief that because the claims were construed to require that the point but both i think are are persuasive well it is that global itself told the jury that it should find that the pivot system doesn't infringe the claims claim forty five as construed precisely because that claim require the instruments the instrument to guide the movement of a connecting element and then instrument that is operable or to work capable of performing a function means that instrument with the inherent capabilities to assistant performing that function not as globus is now claiming as it never did before any instrument that a person might happen to pick up to help per well infringed doesn't invalidate and it's just that straightforward but the problem you might be right that you would be left some court but i'm wondering if judge heroes the construction of specification teaches and this was a argue not only by us but by globalists both at the claim construction stage in closing argument that the device itself cast the have the unhurried capability to in any of its three claim construction iterations that construction was correct because if you read the specification that is what the specification teaches that is  as mr trellis said when he first stood up the well was quote revolutionary about this invention was that for the first time it articulated aid and invention that did it wel solely on the touch and feel of the surgeon's hands but instead constituted an instrument and methods to use an instrument that itself would god the ride into a pre determined location in this highly highly sensitive area of the body where exactitude is required and that's why it was called revolutionary everything else including dr mcafee's videotape procedure was designed to try and help the surgeons somehow get a third of the ride with the assistance of his audience think we all understand the differences between just what was done here in the arguing in this case that the surgeon didn't have to do anything the surgeon never had to do a single thing we just had a machine that you know once you fixed it once you built it and established the two towers or the  surgeon could leave the operating room and say you know press a button and have it done no it was asked to prove that it's actually pretty close you want to go from one hole to another when you see it but you want to do something indexes the location of those two holes automatic it both of these devices are in fact capable of being operated with knitted once they're fixed with minimal assistance minimal work by the surgeons and it was it was exactly judge bryson on that basis that globus argued to the jury under the court's claim construction that they didn't infringe they specifically said page eighty four ninety one of the joint appendix and there are other references in mr mcshane's closing argument device doesn't do the job with the pivot the surgeon douglas that is they understood claim thirty five to be construed exactly the way that we argued to the jury that both sides argued it in a narrowing way at the markham and hearing and make this broader argument they're making that anything that a surgeon happens to pick up in order to assist him or her to sort of fumble their way through to the referenced only to dr mcafee's hands the only reason that they have any role in doing that guided me and leave aside the pre determined path because you can see it kept dropping yet these were pliers that obviously were not made for holding a rod they're ma from moving and cutting tissue soft tissue the notion that he was following a pre determined path or that the pliers were guiding the rod as opposed to his hand in his sight aided by the end of scope is that be inserted instrument itself being referenced to a pair of acres that is that its position be established it is invalid under these two particular assertions of prior are and since at trial globus made no distinction with respect to which damages case between one claim or another or for that matter between one patent or another we don't think that it matters in this case at all but as to claim forty two and i'm not sure how well i can improve on what we said in our brief we think that claim forty two common sense requires a construction of claim forty two that the insertion instrument that is the last two words of the second element of claim forty t be the thing that is referencing the position of the connecting element relative to a position of a pair of acres for two reasons it is that way here we are well what we're saying is that what was i we had bad we reference saying was construed by the court to mean a stablish in the position of now their argument is well referencing is in a different element than insertion instrument and therefore there is no requirement that the assertion instrument do the referencing that requires you to read this claim innate in absurd way what it requires but to meet with the second element just means under their current construction is that all you have to do is have an insertion elem it that makes contact you know just touches the connecting element and then its work is finished totally contrary to the teaching of the specification and then aha then we have an independent element that talks about referencing etc et  now first of all it gets it is straining to read the claim in order not to preserve their validity but to establish invalid to make an argument that assumes that that second element would require nothing than just tagging having the insert or instrument tag the connecting element and then be put down second of all it would read the third element completely it would make it completely  say ok you have to you have to position a pair of acres within the body you have to touch the insertion instrument to a connecting element and then you can go by to the last element you p subcutaneous position meant that is that is a stretch of the first order in order to defeat the validity of the claim as construed and it is not a construction that they ever argued either or in any one of the three constructions to play presented before the mark when hearing were to the jury they simply didn't make this argument they were full argument to the jury is we don't infringe they are not entitled to make the argument that they are making this rebut absurdly broad construction of these claims in order to declare invalid these pieces of prior art i mean i think it bears underscore and we've been talking a lot  there could be was designate filed an expert's report in this case in which he identified any i think six different or instances of prior invalidating art he testified that darn well about his prior procedure he made a determination not to include that in his expert report as invalidating our presumably because anybody who looks at that video would think it's absurd to think that it is suppress these claims and they are asking for an instruction in this case a construction in this case in order to make an invalid any argument that is quite the opposite of what they heard repeatedly in the market hearing and directly contrary to their argument on infringement before the jury and they like we are bound by the same construction of the same terms for invalidity infringement and other purposes as we just continue to argue this is the make the same argument you're now making with respect to the construction of the claims or said nothing further about the construction claims in connection that he pushed the case i believe it is  there i mean you could see it start his discussion of invalidity starts on eighty four eighty six right he says ok the invalid and he then goes through his prior invalidating references presumably in declining order of significance first he's basically just saying we prove that we had an endo kelly game over and the notion that the elbow kelly anticipated this or infringes any one of these claims we think is completely insubstantial and one more  at is what i understand it to be there was not no testimony about what a red bar linkage is there was testimony there was evidence for the jury of a device that used a three bar linkage  and our argument about their put it system is that it uses both a pivot point which is one of the four ways in which column five winds twenty three through thirty articulate that the installation the instrument can be that the globus is argument was not based on not infringement argument was not based on the fact that it the claim construction required that the instrument do this all by itself globalist told the jury and this is at eighty four eighty three the real issue is whether there was a pre determined path and if the jury found a predetermined path with pivot then it would find infringement counsel went on to explain that if it was found to have a pre determined path simply because the rod then a few pages later when counsel said that the surgeon and not the device does the job with pivot he again in eighty four ninety one made it clear that he was talking about the fact that there was no pre determined path with pivot because the surgeon had to manipulate and adjust it to get the rot in there absolutely inconsistent with what we argue there it's also i agree with mr waxman that it's also this construction is also inconsistent with the specification that's the whole point the specification describes a very specific kind of instrument configured in a location in reference to the fixed reference location that we are referring to in all each of the planes to the capability of the instrument and the instrument itself must serve as a guide so what significance if you will first of closing argument or informs the understanding of what the the but the broad claim construction means it's what it is the argument she presented to say that basically the pit works like sextant and here's why you should find out and here's why you should find that you should find a pivot infringers because there's a fixed geometric relationship and it's all these things that their expert said pivot had and it may or may not happen we have a challenge the infringement verdict based on the construction is given the but the fact is that the the actual language of the claim construction was much broader and i think that to get to the second part of your question that's really what has to control what has to be control is not what not how the parties may have characterized it's even if that's what they were doing how they characterized the current construction to the jury how they tried to tailor the claim construction to fit their theory of the case the jury was given the client construction in the language of that of the mark in order broad point construction that was given to the jury no dispute about that and are we did are we to think that the jury inter you know basically applied what the judge gave them or were they were should we think that they applied some version given to them by the har