not infringing alternatives your honor they locked up the contract through inference and they switched to a non infringing alternative that they sold are you saying that once someone is in brand lets say i enter into a depriving us of still the patented product and it doesn't stop either the robot work was a sion or the reasonable foreseeability that there is a transition and j m s recognized expressly an internal could have simply waited coming out with this not infringing product and offered it to a given customer the next time the contract was up for renewal but j m s didn't want to do that it wanted to capture business it could only capture through infringement as a result when it did have a way to reading it didn't have to negotiate a contract or compete with anyone else to obtain a contract for c b s it already had a contract with the person the us and it under before they signed the code they were aware of it or other but it wasn't it wasn't approved it wasn't on the market and it wasn't available in sufficient quantities prefer simmias for almost a year after the contractors not so it wasn't and it wasn't available to provide any kind of reasonable assurance that person yes could meet its huge monthly requirements and were guarded needle steps for lifesaving treatment for the the patient of the countr largest dialysis chain so the the question here is really should infringement pay under the circumstances of this case if the trial court was correct and departing from the right  forsee ability standard then under situations where there are multi year contracts up for bed it is a rational it is rational and rewarded conduct to infringe as a way of fulfilling the initial requirements and there in the initial part of the contract so that you get to keep the contract and stop paying damages as soon as you get your substitute on and furthermore you have an incentive not to bother with forward  looking research and development developing safety products years before they're under a government mandate because when the government safety legislation goes into a fact and her competitor is poised to finally truly profit from it rewards and mitigate your damages by transitioning to another product later which you don't have to start working on in advance so the the trial judge departed from exception to right fight for c ability and he misapprehended public policy because he felt that he was concerned about this incentivizing development of non infringing products but if a non infringing contingency the the plan continued seem to purchase not infringing goods does that make a difference no your honor if it well it actually cuts the other way around or because it shows percy ability under the right standard that they knew they jam man knew that the result of this infringement was that they would get these later sales that we were prevented from recovering with regard to where we were it's practically automatic in the sense that there is no new contract if no opportunity for a competitor to come back in the it's not even a step removed it's the same requirement that just devices from some other party at any time during which not is a prep well they still have to pay for the minimum requirements they were going to purchased so they wouldn't you know that would make sense to do so often as a practical matter they're running the country's largest dialysis chain if they are buying three hundred thousand a month of a given product under a minimum purchase requirement well i suppose you know maybe the requirements for that month are three hundred and ten thousand but it would be administratively from a clinical perspective on acceptable to use a different product for the ten thousand so as a practical matter on getting the contract they locked up for for two years and they prevented medicine distance from getting a commitment to buy it patented products for a period which was under negotiation but would have been at least two years because  have an incentive to infringe if they can bring in their own infringing product later so you're taking away the report of the reward and send it for inventions you're creating  a an incentive to infringe and there is there's no chorus offsetting social benefit because if a product if the product is in fact valuable will be an incentive to bring it out  media the trial courts basis first inform spritz dauber ruling was his conclusion that as a matter of law these types of damages should be prevented so that was the methodology methodological error on the other points that the judge cited in his dauber order all of them were simply disagreements with the expert about what would have happened where their work in casting there were and there were conflicting facts and conflicting inferences those should have been given to the jury under micro chemical the party where the when the parties experts will and conflicting sets of facts it's not the role trout work to evaluate the correctness of facts reply brief there's really only one scenario here that explains the jury's verdict really didn't toward those damages that awarded by million dollars without really breaking it out right well how are you s confident that price wrote it was not incorporated because it fits it fit almost perfectly with the scenario of price erosion and rebates and incentives not being awarded and with to think that should be added to the judge let me just briefly address the court's construction of the closing which resulted in the court granting summary judgment of non infringement as to most of the claims of which you had some s that construction was contrary to the specification and in multiple respects the specification clearly used the term close to refer to a certain french all surrounding of an object as it moved  inconsistent with the judge's ruling that in closing has to be at all times the work i feel would have it all positions and basically that the object has to be absolutely constrained under a correct resolve its lack of understanding of the test the law of obviousness in plain sight it's not enough under this court's case law that instruction to be accurate they have to be understood given affected by them by the jury unable to was no evidence to justify an inference that none of them were actually used which automatically constituted infringement so there was no basis for that judgment of no contributory infringement hearing that permitted doctors in this hypothetical world to come up with the hypothetical contract including the hypothetical type period and hypothetical pricing all of which were greater than any had been shown in two thousand and under the logic of the but for world in the green processing case it was of bailable for purposes of last proper calculation the court went through an was my understanding that the market because market the soul fragment that because there were so many mother reasons why people were purchasing one product with the other were not going to or last proper damages because the market just was you can't you couldn't predict with any reasonable economic certainty that was the call connection between the sale we need our products in the sale of the accused product then but before that the sale would have been made by the master to do business in effect with d s you all head up to this is not a lot of profit case is there it should never have been presented to the jury by the game almost and fortunately there was no written decision it i'd like to address briefly three issues today and whatever else the court would like to talk about the proper construction of slot what inducement of infringement means and what contributory infringement means in this particular context  to please the court in this case and as the court knows there were amendments made two claims being prosecuted resulted in them being allowed after having been rejected previously d s u invites this court to come to the conclusion that no scope was surrendered in the process of amending claims to too narrow for them to seek to overcome prior references you know that that can't be the case there was surrendered the court knows that there were two kinds of claims that were issuing that were rejected initially combination claims had a sliding needle assembly with the needle wings sticking out through slots in a protective guard and the other claims were just the guard  between them but their wings in hughes instead of being parallel to the needle they were like this they were perpendicular but it meant that the slot had to be wide to accommodate these perpendicular wings going back and forth the amendment that after all these plans rejected that the applicant's offer was one where the wings would have to be planar in the same plane as the as the needle so that they had to be very thin not the perpendicular wings of hughes well that was fine for the combination claims which were cited wings and needle assembly but of course the standalone claims didn't stand alone claims only recycled the guard so the question arises how could a change to the needle assembly in the wings make the difference between that you can describe a component in terms of the structure that the component is meant to work with in this case as d s you noted to the court below that the plainer things that the amendments require were different than what  guard excuse me they would impose a difference in structure on the guard that had to accommodate those wings so whereas in hughes the wings were perpendicular and wide by making the wings planar with us you told the court w had to narrow in order to accommodate that what happened in in the course of that happening with those claims we think yes he was quite right just record is that a slot that was wide enough to accommodate anything from the plane or two perpendicular wings was a surrender slot that had a range of of sizes like that was surrendered and now that the wings had to be perfect plane or the slot had to be something that was narrow and not able to accommodate hundred fifty two standard as quote plaintiff was required to show intent to cause an infringement so post nine hundred fifty two we have a series of decisions which all go along the same track the from the decision he says in said that's purpose on the poaching someone else's patent then water technologies comes in one nine hundred eighty eight that's this court and that's important because we just heard mr o'brien cite hewlett packard as the senior case i would say that all of these cases but expression including water technologies is the senior case that specified that the standard was quote a specific knowing intent to induce infringement it's interesting that only after analyzing and rejecting the i don't think he would packer intended to introduce a new standard first of all that he would packard used interchangeably the standard of you have to have the intent to induce inference and the other one which created was was very important to the grokster decision to understand what happened inducement was in order to then incorporate that into the copyright world and what the court said was that they were required level of intent this is the supreme court  competition it wasn't supposed to be that you reached innocent inducers who had just half a dozen opinions of all of which said that the article doesn't infringe turn out they were wrong that's not what intent but to to cause think that the standard is different purposefully your are if you consider the example of the inducer who doesn't know exists that inducer is liable is it should be is not libel because it's definitely an element that you have to know the pattern exists whereas if you talk about a direct infringer that person might know might not know that the pattern exists they're still liable because they're on constructive notice so the point is they're not treated the same and the reason they're not treated the same is that the courts have been very careful also  haas versus dawson chemical the whole idea of those cases is be careful not to extend the reach of inducement liability so far they're going to stifle competition and that's why when you go outside of the set of the direct  that the trial judge cited he just reached different conclusions and the conclusions were for the jury the judge did have a hearing and have a long opinion but he never made that decision without hearing the fact witnesses testifying about these products and the commercial market when the jury did hear that it decided for example that it did not believe that we need or would have come out earlier and the trial judge should not have been able to make that decision for them in the context of this subset of damages  with regard to slot the constant dimension argument is contradicted by repeated embodiments in the specification where there's a change of dimension there's no reference to no concept dimension in the prosecution history s u never suggested anything on the draw where it akin to that nor did i t l we would contend the come construction it's putting forward is waived in any case it's not supported by the prosecution history  prosecution history teaches that the patent office found that hughes was adequately distinguished by an amendment that was made the amendment had to do with wings that had nothing to do with the slot it is limited all the claims because the very briefly your honour's on the question tributary which was part of our direct appeal we have pointed out and the issue has not been tested that plain language of section two seventy one c requires conduct within the united  reporting into the united states that takes care of the thirty million guards that were so i don't think that that was addressed in the by the phil bryant adults so i don't think there's anything for you to respond to this point all right thank you thank you