court my name is michael sherman counsel for appellant personal web technologies l l c there are two issues that i would like to address point one as far as application of the kesler doctrine is concerned in this case there is a very simple threshold question that this court should answer and that is term of this is judge wallach on page two of the read brief amazon  asserts that personal web volunteer i'm quoting them personally have voluntarily dismissed its claims with prejudice after an unfavorable claim construction order i didn't see any mention of an unfavorable claim construction introduction effectively that if one claim construction that is nowhere supported by the appellate record and and kesler has never been applied by the federal circuit without a prior and mentor graphics this court stated consistent with the supreme court's decision and our decisions in aspects and brain life we hold that quaint preclusion does not bar a patentee from bringing infringement claims for acts argues claim preclusion is the same today as it was at the time of kessler and so finally everywhere and always cannot be read consistent with going beyond the l on page twenty eight dollars of the blue brief personal web says ultimately the entire texas action was dismissed with prejudice or and i'm quoting you cost benefit litigation reasons what does that the party's failure to reach an agreement on an acceptable license term that is found in appendix seven hundred and thirty five to have any declaration amazon wanted as part of the dismissal of the entire texas action with prejudice  the right to seek declaratory judgment of non infringement in the future hence i think it's pretty clear that a voluntary dismissal of a non infringement declaratory judgment action i as this court your honors know there could be many reasons why there's a reason to dismiss an infringement cause of action with prejudice that has nothing to do with non infringement for example lack of personal jurisdiction miss identification of a party leading to dismissal and a new filing because of a lack of understanding of all the underlying transactions or finding out after filing the rd party is the direct infringement and you cannot prove indirect infringement  my point being that you can't and shouldn't just look at only whether there's been a dismissal with prejudice because a dismissal with prejudice alone is just not enough if that were dismissal with prejudice does not terminate the cause of action in the complaint that's are you arguing that absolutely not ok so so this particular cause of action is over period you can't regardless of the reasons for the term a nation of the that the decision was made to to consent to a dismissal with prejudice the cause of action has been extinguished right infringing activity that occurred after the judgment in the texas cases that is correct is an absolutely ok good now i guess my last question is discussed the question of whether it had to be not an infringement a finding of not in fish but as opposed to say as a finding of insulated i would i would say that that in the in the hypothetical that you're providing it could apply only if the prior judgment extends it to post judgment through some pics press agreement or an express finding of the court and without that i think that  the federal circuit in brain life made it clear that it would not be applying applying to post judgment activity so one of the points you make on where in the rebuttal time but one of the points you make is is apparently you're saying the accused products are processes are not materially different but  against a different feature of the same patent is that correct i would say that our position is is that the the the re are major differences there are major differences between what was accused in the texas action to the present action relying on the infringement contentions there's a are both part of the same patent however however where the porting from actually met were the differences between them that is the q s devices are merely coble or unrelated to the limitations in the contrary reading contra reading would suggest that any cause of action that could have been joined in the original action would be precluded a point we rejected over four decades ago we're talking here about the rule against s three and amazon alaska cash which is and now they're an amazon web store's service so the transaction the define the cause of action and st texas she was making it is it appears to be standard law as to issue preclusion that consent judgments don't generate it spring court says that at least in passing in doctrine be red to attach to a consent judgment that as issue preclusion limitation that we just talked about that i just mentioned indicates is not understood to be a resolution of the liability character of the accused product should not be litigated for two and a half years if well if we if we looked at the the eastern district of texas docket would we get to it of course yes you know and just kind of all the claims and in part just falling on the prior claim construction orders in the prior cases as well as reconsidering additional terms in this case but i just want to go back to this argument that somehow this is just a standard procedure that should be allowed under kessler and it's not a person with a had the opportunity to take its best shot against amazon with its  texas tried that it litigated for two and a half years then gave up that case and gave up in this is important eight years of potential damages going back to the launch of amazon s three in two thousand six all that it gave up what did amazon give up give up nothing didn't pay anything it reserved all of its rights so under kessler at that point amazon should have the ability to continue its business as it did before with the fact that person gave case to avoid a trial should not change the fact that amazon had obtained the right to continue its business to infringing activities after the judgment in the st case even though in kessler and itself that was a pretty obvious instance of issue preclusion they didn't call it that and of course mutuality of a stoppel prevented them from applying the traditional doctrines but it really if you look at it and modern terms it was was clearly an application of issue preclusion and yet you're asking us to say that  this doctrine which is peculiar to patent law should be adopted even though it is not supported by either of the two principal pillars of the law of judgments issue and claim preclusion and given that the supreme court has demonstrated to us more than a few times that it is not favorably inclined towards specific rules and even though kessler itself can easily be that into the traditional residue to go under rules why should we extend kesler beyond the scope of what it's particular holding less well i don't think we  brain life method claims were barred under test or even though the opinion strongly suggests they were in fact infringe right saving element of the apparatus claims that was the basis for reversing the jury's finding infringement action was brought on that basis there has been as in this case a prior judgment then would be no protection for post judgment infringement in that case right because they would be under under it would be right so it seems kind of odd that if you introduce customers into the picture that suddenly the rules change an amazon gets protection that years later should it be able to come back and see the amazon customers well it's also so i am is on itself correct not in the cases before us but but it is i gather it is continuing to amazon's being put in the in an impossible position by having to defend against post judgement infringement charges wouldn't prevail if there were no customers and amazon was just one is have you looked at anything in legislative history say of congress's various title thirty five enactmen since well since say fifty years ago when blonder tongue came down and opened up a world of mutual issue preclusion that that offers some illumination about whether congress has understood there to be a kessler doctrine that goes beyond issue preclusion that's that's the st and the the answer may be a simple no you don't know if you know anything and then i moved to the nd question you can't come back a nd time doctrine just to avoid labels for this patent situation that wouldn't exist outside the patent or where the pack holders already taken a shot against the supplier of the technology and lost but if that were true this is just brushing if that were true and suppose there were a rule adopted tomorrow by congress that you may not sue customers you may only sue the principal here if that were true then if this were an action by a personal web against amazon only  but because it defeated that claim any further ok thank you counsel two minutes thank you your honor there are three points that i think deserve to be made here st counsel indicated he couldn't tell you off the top of his head about the adverse claim construction order the fact is that there was no unfavorable claim construction order in texas there's nothing in the record about it in the present case below in fact amazon argues the clay construction of the from the court in texas should be adopted that was opposite me that was opposite of the damages because for those reasons this was not a quaint construction to my knowledge that a fabulous non infringement with respect to the dismissal point dismissed that they had the absolute right under f r c p forty one a sub to to maintain it but they gave it a reserve their rights and and that's presumably why we're here down for the purpose of the term and whether or not the cause of action should be joined is whether the evidence necessary to prove one cause of action would establish the other and that's not the case here because evidence w be completely different because the infringement contentions are completely different and there's different accusations of different aspects of the device it's download vs upload thank you very much thank you