confused about your interest in the insured for hearing that first the notch washers i went when the season assist letter was received my client would destroy all the notch washers to make sure that they wouldn't have any possibility of infringing the patent it's not a necessity to how they not sure they can sell their products with a fully round washer without a notch it's a convenience they have a notch but it's not a necessity you can put you can point to i don't think have the mold when discovery was at the beginning he had the heat most of the notches washers were created by just simply carving the notch out of the washers when he got the season assess letter he claims back in prosecution history they added the limitation that it would be boards as opposed to the slate tile ceramic or anything like that so the limitation of the notch washer is not all  mo it is not miss after the five factors immediately after they list the five factors it is not necessary for a district court to make explicit findings to show that it is conservative these factors so what's the considered in the opinion you cite in the sentence following the five factors you list says it is not necessary for a district court to make explicit findings to show it's the end of must close relationship to the two parties if you would have listed out the reasoning for his decision would have been an assistance of this court on reviewing it on appeal even though the opinion you cite says the court doesn't have to i don't think that alone would make it reversible by any minute means but it's doesn't health well i would  at issue is simply a floor it could be stone or the like the pedestals are usually threaded the cleverness of it all is that the between that cap and the base of the pedestal is a simple inexpensive p v c piping that's cut to the right height what the patent added was simply that for purposes of the contractor to repair or replace a particular tile they can make these washers that a forty i believe where they show that if you rotate the washers around just so you're able to remove one panel without having to remove many other panels to get to it then you replace that panel with a repair panel and it makes a convenient repair and that's the advance in my client had twenty of product that he sold prior to the not washing being on the market without that notch and with just simply  standard washers locking the pedestal and the flooring together mr cunningham picture twenty four you argue that much of the conduct of crop tile tests trial counsel is based on the fact that he normally practiced in california courts not federal court this quote this explains attorneys son so is his name unfamiliarity with the more rigid practices in the federal court system wrong term but certainly that he was more familiar with the state court practices generally i know that i understand from my reading of the cases that he really took this case on fully thinking that it was going to settle quickly and that it he didn't have to know the rules but your honor yes he should by all means have litigated plus settled yet tempted to negotiate a settlement of this case a no no good to try to negotiate a settlement without also pursuing  rules governing discovery and sanctions are the same no matter what not and patent cases if it's not different well i just know that he agreed to a refusal to obey the orders of the court out no partly the spoliation there was never any there's never any dispute over what these nots washers look like whether they had one in their hand or not the fact is my client really destroyed them upon getting the cease and desist letter there's with respect i thought i would go right into some of the questions that were raised and they got some points that i think i needed to immediately address one with respect to the sanctions the sanctions have never been paid they've been demanded they've never been paid there is no gentleman's understanding there is nothing to that effect the only thing that was ever raised i believe was at the hearing before judge real is that and i believe i'm pronouncing it correctly i have always heard it judge real though it looks like it should be judge ryall i do not like i mispronounced judges names but judge the thing that was brought up by counsel was he thought that it could be included the sanctions as part of some settlement well yeah they could've but there is no settlement and the the sanctions are unpaid they have never responded when the judge reads the transcript it will make a difference because it'll be spelled the same way both times you pronounce it correct your honor i believe that's true with respect to the water's about i think judge wallach you correctly noted it was from the evidence that and washer was sold and it was after the case had been brought there was an invoice take it that still was asking opposing counsel a very precise question which is why should they be banned in the injunction from selling the notched washer when the patent claims are not not a single claim is to a notch washer there are two a system overall for the injunction very broadly prevents them from ever using a notch washer again in any other device even if it was a totally unrelated i believe not lie and i'm sorry i didn't mean to interrupt i believe your honor that the injunction says that they are not to infringe upon the patent as described in the tunnel products and then it goes on to make it a little more clear just to say it's the pile tech products and then goes on to discuss the issues with respect and i can sure it's nothing similar that they don't try the concern is that that language is more narrow than the scope of the claims and i don't see where in your complaint is alleged contributory infringement or deuced infringement based on the sale of just the washers yes your honor the issue a make these are made of piles that i made a pad of stuff and then it's the key to that system is the notch washer so that's was what was important and that was also what was important to the as part of the discovery process so when there somehow the specific page to give you right now i was not i was focused more on the default judgment as opposed to the other two when i believe that on the other part of it which is the scope of the in let me help you get your appendix your computer your own or is that it possible for them to use the washers in a product that would not result in infringement but you can not the not trump well if the not true washers are used in a totally different way certainly with respect to the system that's involved here i believe no  they're using a round washer i believe or if allege that they're using a round washer now and i don't i would have to double check but i do not believe your honor that that would probably infringe or your as i understand the order it's not there not prohibited from possessing or using them there planted from manufacturing them manufacturing selling anything that's related to using those in a way that would compete with our products thereby infringing the infringing  possibility of a non infringing manner yes but all we know is that's what they were used for and that's what we were trying to prevent used in the system that is described in our patent now i i'm not sure of all the possibilities what a notch washer could potentially be used for there was no use for it and we are aware of other than this this one used and this is how they use it in this is how they sold it misses how they market it so that was why it had to be stopped with respect to the knowledge washer yes going back to some of the points that we had that were raised to believe by judge lawlor because these were as i said the not too washers were not in the record or when it's mostly meant it is in the transcript of the testimony of the tile tech representative and it's worth mention in my brief specifically where we went through here's the invoice here's the exhibit here's all of this and he said i don't know where it came from but  should have gone out if i had it but it also showed that it had a tile tac logo on it as if it had come from a mole and it was not cut because that was part of the problem with the discovery process the first say we don't have any and then when we created it they were cut from plaster and maybe they were made with a three d printer and then after the order to compel and after the motion for default was pending then they said oh we have a mole it was all through that process with respect to the issue of saying that that the tile techs counsel was not familiar with federal rules and i believe you pointed out how you thought the rules the judge assert full that counsel how the rules were the same we weren't necessarily just even referring to rules this is just not responding to discovery and i think that's an important point to be made with respect to the spoliation motion the rules require  when the judgement  moves images of bisons act even if they're not used in a way where they're attributing those images to their chin selves well the only use we had ever seen for any of it was on pretty much through their website and maybe some other words misrepresented and that was the allegation these were misrepresented as being their work or their projects and that itself was deceptive and what was to remove them from so that there is no indication or implication that these are their products they were taking ice and ideas intellectual property its work drawings as well as other images of products it was taking those things and passing it off essentially as their own i understand i i completely understand that that's improper my question is could the injunction be rad to also preclude them from doing so a comparison with theirs your on their own website i don't think that could be your honor i don't think that the injunction would go that far but if it did we'd in the abstract we have nothing to that effect that would show that that is some sort of problem that  we had here was we saw these things and demanded they remove them they had them on their they took drawings to other things that we're seeing and i'm worried especially that if it's something you know in the women law of doing a comparison of products in attributing work i don't think that really is at issue or applicable here i don't think the injunction would go that far and if it did i think that it would be difficult to enforce i don't think the injunction would prevent them from saying here's a bison product and here's our product and ours is trying to say ours is better i don't think that's something that you could that would be of the proper subject of an injunction but i don't think that's what's happening here what this was done was to was to specifically deal with a specific problem which was them execute them taking my client's worth my client's intellectual property and passing it off on its own that's what the injunctions for and that's what i think of it does because there was an allegation of misrepresentation by doing that that was deemed to be true and so that's what the injunction prevent wasn't bad enough and bison was really not hurt that badly that is what they're telling the court and simply not true spite examples also of why this case couldn't have gone to trial of a true set of facts the way the obstruction and delay was hard on my client because delay justice delayed is justice denied my client has to try to sell its products and having somebody doing what thick was doing and then not being able to get trial prevents that thank you very much product is certainly disputed there in fact is no evidence saying it was that's just leap attorney argument during a deposition presenting something at a deposition saying this is what it was there is no evidence that there was elicited  disputed my client would have disputed that yes they do you now have counsel for bison on record in the appeal and you can quote it back if necessary saying that he doesn't believe the injunction extend or could be applied legally against simply use of the washers in a totally non infringing manner and he likewise have the same statement by him as a representative of his client  very reasonable interpretation of it and indicated that he does not need it to be that broad and certainly you know have that admission by his counsel so that if your client does use the washers in a non infringing manner you used images of plaintiff's products projects and drawings on its website and through other marketing materials representing that such products pride projects and drawings are it's own again that's  image that wasn't his own product and that's me on the record saying that's my understanding from my own client didn't and that i believe that's what the testimony says in the deposition too he was surprised that it was very very cryptic up into us and up until patent side which is the first two parts of the first three parts of the injunction when we say i don't know of any legal precedent i mean i don't know how that can be when celt sole makes of representation and then if they prevail in the case in part on the basis of that representation and i think that representation becomes binding whether it's claim preclusion issue preclusion race judicata whatever have you want to frame it but i think that if counsel prevails in part on the basis of particular arguments it made that you you can actually bring them up later if necessary i just find two prong of that one is the the injunction is should the overbroad on its face and you would require that kind of representation both within industry me after what all these two are competitors and they have to convince customers that they're not going to be infringing if they take on a particular project for my client so he's hindered in that way he's going to have to both present but the injunction in but also well i don't know i know what the substantially similar product so on one hand it's the product that incorporates a pattern and then it's on the for any substantially similar product which strongly implies you're talking about products that don't incorporate that that's what the