one two nine eight d s and just a text versus three d system it is actually in the district court opinion which is clearly public so it can't possibly be confidential any longer i'm going to ask my questions and if i tread on something you're going to have to scream out and stop me because you way over designated and you made my job today very difficult as a result of doing that i mean maybe i could have sent an order out asking you to redo all your briefings but that seems like a waste of money so when you kind of is there a way you could give me a hint right now as to what is really super duper confidential and if i won't mention any of those and if i tread on anything else for incompetence you will either of you even if you're sitting there can like jump up and sort of wave your arms and that's the only time you're allowed to hear that it's clear i believe there were two other please the court that the briefs in this case tell two very very different stories in the question has whether it was appropriate for the district court to decide whose version was correct or whether a jury should have made that but the jury could have found differently could have found that the r f d says that the purported justification for the r f id lockout were a sham a pretext and that there was no  one because in the tyco case you had tyco coming out with a new machine and you had sensors generic sensors that could no longer work and here a jury could have version of all these right absolutely and there is evidence that it did work before the lockout was in naples and that it would work and there is no expert evidence in there so i think that it won't can i ask you to turn to relevant market because if you didn't prove a market right or out to sea without a paddle on the the federal guidelines tell me why s l machine should be a market unto themselves because the original circuit case only indicates that constructing a market all the way down to an individual product is a very unusual thing and requires a high level of proof right the question is whether evidence that it could and in fact it did career's customers into taking residence they didn't want because they had to have the stereo with either feet technology is that you have to prove either process to city or what what is it what here the testimony is that there is no substitute there's no substitute for that technology for a large number a significant number of uses so you have that testimony you have testimony from our four customers who said that even if the price was increased five to ten percent of those machines it would make a difference to them they have to have that technology so you had that and they are twelve percent  for other purposes and where does that where does that leave us is that is a question for the jury decide whether how the market's to find when you're looking at it from that you point yes because here it's a question of that those machines are more expensive than their own turn to do that we've got our hypothetical monopolist argument that people would take a five to ten percent price increase without batt is on the four customers based on the forecast one thing i want to correct you said twelve percent of twelve percent of the s l market is still present or as yet why we care what percentages of the resin market if you're talking about the relevant market being  right yet not the market but if you're alleging the market is the machines so what percentage are those four people of the people who bought the machine so the question you're right who's going to buy resin right the question is will the same person buy the machine if it cost five to ten percent more right but we have that's one piece of evidence what percentage are they of the machine and two hundred and eighty seven if you do have like ten percent to prepare as a small number of customers but the question is whether they are representative of customers in general and we have as a dence here i can it's not just a hypothetical the novelist's there is a great deal of evidence there is the price of the machine the testimony from other customers that as well that they cannot substitute for certain uses so they have to have machines the fact that they were able to coerce customers to take residence they did not want that alone shows market power and our export went through and analyzed all these facts together rather than pulling out one or two facts which is  three d s was like and concluded that they show the three d s not only has market power but exercised it your argument is that the the three d s has market power in the tying market which in this case is the s l machine right and it's you know making an argument with respect to more power in the tides  what they leave the rest well yes that they have market power in the time markets which they used in order to increase their market share in the tide market and most blatantly used by yes and is that because that producer has the pattern a little machine that set up that mission although they were required to license it to another competitor several years ago no competitor has come into the us market so there cian that technology is still the leading technology through d s has back to the relevant market the question is whether there's a reasonable substitute for for that product i mean that's right issue gets down to that right and from what i from what i recall there was testimony that there were substitutes for the product a for certain purposes or search for underage or on purpose right did the district court good enough because the people didn't testify that they were there was no reasonable substitute now we find that because it was asked whether whether there was a right using the the word reasonable but what they said is there is no no no substitutes in the market isn't there isn't going to look at it as say well there's only two percent you have evidence of only two percent and that's not that's not showing a reasonable substitute that doesn't rise to the level where you run we had more customers who testified that there was no substitute we also know that this is expensive technology which has not been pushed out by the cheaper technology so if there were reasonable substitutes  as their expert says then why wouldn't people be buying three d printers which are ten thousand dollars instead of paying nearly a million dollars for one of these machines and that is because there are a number of uses many uses that dad there is a large area where there's no substitute ability and if you can't substitute something else then they have market have and back to the fact that they were able to coerce customers the district court's opinion should be affirmed because that would have simply did not bear its burden of proof at the summary judgment stage as a tech was required to come forward with sufficient evidence to support a jury finding on every issue in this appeal on the customers thirteen witnesses from twelve customer companies whose who made different statements about the alternatives to suicide or five of them said that there are indeed alternatives to syria lithography for some uses hard or some or some  for the large printing stuff nobody said there was any substitutes right is that what what is it what is the stuff for which there are no substitutes i wish i understood the technology better to be honest with you well i think it's a problem again and  print something big and this machine is the only thing that can do it then there isn't a substitute well there are only four customers who said that they could not substitute away from still hard and there were five customers who said yes there are alternative criminal charges i mean if you could substitute for ten thousand dollars instead of spending between one hundred seventy nine million dollars i hope that was not something i wasn't specific no but if you apple and you could substitute for ten grand instead of spending all that money how could you not do it and if you could then your question would be act if you could do that and that would be correct but does attack has simply misstated the evidence on that point its expert included a chart tab for at page twenty one twenty five is expert include a chart that shows all of the different technologies and their price tags and those price tags do not stop at sixty nine thousand dollars they go up over a million dollars eli asked is a company that makes laser centering system didn't cost anywhere from two hundred twenty thousand to over a million dollars many of the systems on this page twenty one twenty five the appendix many of the systems are in the four to five hundred thousand dollar range th of the reasons why we think his but if can't make you would say we would you say though that the expert opinions of themselves do not create an issue that the little words you have to have experts here you have reports going back and forth  isn't that a jury issue it's not in this case because and the district court and the district court did not rely on our expert's report at all our expense report can be completely set aside for the purposes of the summary judgment the question is only whether dr mackey mason supported his opinion with sufficient evidence to to have produced a possible opinion saying his sampling was too small is that the idea of it with well there actually to be two problems with his  first of all it was too small for customers said that they they would not substitute in response to a price increase although one of those customers said that he when he was buying a system three systems had to give him a five percent discount to make him buy a machine his words to make me buy a machine but for christmas the other problem with dr making missing testimony is that he himself said that these customers the customers who testified are not representative of the rest of the two hundred sixty eight customers and that in the customer universe and i'm i'm starting to see the appendix at pages twenty five sixteen twenty seven sixty five three sixty eight and twelve thousand two hundred sixty eight to sixty nine said that no meaningful comparison could be made between these customers who testified was the second and the rest of the customers twelve thousand two hundred sixty eight through sixty nine with the first one twenty seven sixty five sixty eight and and what is it that these pages are going to tell me these are pages from dr machinations reports in which he said that dr crossings opinion had to be rejected could not be accepted because dr mackey dr carleton was looking was doing a comparison of the so called constrain customers versus all other customers dr mackey mason said that these two groups of customers were so different that you could not make a meaningful comparison between and so that show affect evidence saying that these customers to constrain customers of whom almost all of the thirteen customers are hard to constrain customers are not representative of the rest of the universe so his opinions are cannot be accepted with regard to the relevant market because not only because the sample was anecdotal to small cherry pick em out but also because they were not represented somehow i have not followed you can so slow it down and back  their expert said before customers are not representative of what you're telling me their expert said that so there was a group of customers that came to be called the constrained customers is a customer that doesn't believe it would be selling resins to for the customers let's let's take for the sake of argument that they cannot substitute any other machine they are for customers out of two hundred sixty eight they are not representative and in addition to that i mean they're not productive but if it never presented for what purpose they're not presented because they're all wouldn't that mean what does that have to do with the relevant market you know i i don't understand yet ok but you know it isn't anything well and i think that's because there's another piece of the puzzle that now the tech has not put forward that it needed to go forward to go to richard and that is the question it can anough customers substitute to make a price increase of five to ten percent on profitable for three d systems and there is no evidence in this case about how many enough would be is it for fifty one hundred we don't know they didn't p complex i so i bought into the ten to fifty nine thousand dollars thing hook line and sinker before right now so how did i miss this how did i miss the fact it's in our fact at some page eleven of our brief we address t explain it to me because i obviously completely misunderstood the factual record on this point so plain to me what twenty nine twenty five tell me about the substitute technology twenty nine twenty five is a list of some of the subs you technologies very small built by him and then it's got the price the list prices for all of these equipments from different suppliers and when you look at this chart you see that the prices go as high as a million dollars over a million dollars for u have all these different machines why wouldn't it just so well that well it's very much like the idea to gaming case in that what you have are differentiated products and so will consumers or do consumers have a particular preference for the capabilities of this machine versus that machine versus another machine perhaps but do they all compete with one another yes to an extent not one hundred percent not necessarily one hundred percent so a service bureau can say i need to make a part that's highly durable i can do that on a sterile saager feet or i can also do that honest in to do this durable part i'll just do it on my stratus machine or just do it on my centering she's so they have a right it's very much like in the grocery store you have a variety of different kinds of soda it doesn't mean that they're in different markets it just means that to some extent people have a preference for this preference for that just as in the continental can case glass containers and metal containers may very well not be able to satisfy all of exactly the same uses but that doesn't mean they're not in the same market what you have to look at is the to which they compete and that's what doesn't take did not do it did not show the extent to which they do or do not compete the extent to which they would have to compete in order to to be in the same market or not because in markets we just have quantification of that at all so a jury would say for customers they're not representative based on their kind of testimony we've got them some initial professors say yes they are alternatives in some situations no they're not and some situations where the jury view it that they don't have not discussion i'm very briefly and i think the heart of the problem with the state's case and this with regard to the program positive benefits and in fact really in this whole case is that it doesn't take as challenging treaty system licensing for use with its residence through modification of existing style files published by three t d s and quote again at seventy three of four through a five situation and now it's undisputed that test that three d systems have a staff of engineers who perform extensive testing of residents to qualify this rises for use in its system it's undisputed that the result of that qualification process is a set of style files that is unique to each resin and each machine so let's take one of does a text proffered resins eleven one twenty you can't just take this set of style files that was developed for eleven one twenty on the i profile five thousand and ported over to that copied over to the post seven thousand they have different capabilities different lasers different parameters the staff are different and three d systems and that it's not only its money and those engineers time but also its know how its trade secrets its secret process the new machines the new are finding enable machines have different lasers different there are again understood at that there are a number of parameters on a new machine the did not even exist in the old machines so it is not a matter of taking style files from one machine and putting them on to use three d systems style files and three systems work to create its own stuff but it doesn't say that in its briefs and so it looks like it's trying to create the appearance of an issue of fact but it has a kind of could just misstate the facts and avoid summary judgment that way we'd have but when you look at the the text evidence and you see what is it they're citing for that that statement you see that they actually only show evidence that two customers use resins the eighteen for twenty resin an the street that one of those customers was you successfully and the other one had to modify treaty system to make it work so i would in closing urge the court to look at the evidence and you will see that there are no disputed issues of material suggests very strongly is that they don't compete with one another well the selective laser center and those up over a million dollars right there are some and but the evidence from the customers in this case is that laser centering can't be used for and they're not competing for the same they are not you just it gives them the ability to raise prices and to use their monopoly over that to evidence when you look about did we have a not as a defense counsel says we didn't have enough evidence to show that there was a relevant market here that there was no substitutability but we have testimony to that effect we have has to mind there's no reason why it's not represented if we have confirmation from various types of evidence our expert looks at all of this and he says this tells you this it's a relevant market now maybe we won't win if we bring that to a jury but it was for a jury to decide because it goes to the weight and not to whether or not we've properly support claim there and we also have to take into account that there were limits on what we could do in terms of deposing customers that were sixty depositions taken in this case plus the fact that we had during this whole period of time three d s was going around and by no service or so right before we were to depose them so discovery complete and  the differences between the machines i think dr mackey mason analogies are very helpful to say that it is fine to say that for some purposes bicycles and automobiles and people with each other but no one would ever say that they are part of one relevant market and that if we had a monopoly in automobiles to somebody only toyota sold on move bills in the united states that they wouldn't have market intellectual property in their style five we've always been open to customers to us and that is how does it has because he did for years and years they're still not claiming any intellectual property so that licensing arrangements they want