may please the court my name is doug they'll i represent the at the hold agenda and your honour's affirming the district court's denial of an injunction in this case based on the record that we have in this case would require a significant  law it's undisputed in this case that gen dan and medicine which are direct competitors and in fact since two thousand and thirteen they've been fierce competitors for the sale of a platform of networking equipment that's been found to infringe demand for that technology they heard from medicine which is c e o who testified under cross examination that all of the features are actually things that customers are asking for that's in the record at twenty sixty six he testified that medicine which chose to invest in those features because customers wanted them there's some ambiguity about what you meant by all those features was because you're talking about the very patented technology that they appropriated or the maybe that is a bunch of other features your honor if your honor looks at the actual testimony in the record i think the record is clear he was asked a direct question are the patented features important he says well all those features are actually things customers are asking for he's asked again let me ask you again are the patented features important or not he says we chose to invest in those features because customers wanted them now my colleagues in their brief try to explain away that testimony by saying well he's only talking about features that are actually advertised i met a switch and these are among the main features that medicine which advertise even if you take all the features that are advertised as ones that customers are actually asking for and once that customers want the admission is that these are on that list these are part of what customers are asking for part of what customers want and as their head of sales says at page twenty seventy six the customers find these features to be important was the testimony you were just recites forbade him basically an argument that met a switch made in its post trial brief mischaracterizing the evidence that was provided to the district court he does not have any discussion of the testimony from the c or the testimony from the head of sales or the testimony from madison which is on damages experts saying that the five sixty one patent gave medicine which a competitive advantage in its sales or the testimony from i should say the internal documents from medicine which sales team saying that the five sixty one patent was a key selling point for them that's not a sixteen thirty six you know that doesn't have any just yeah i don't i get it that there are a number of items that you identified in your briefing that are not called out in the judge's opinion or or items that could barely fall into the three general categories identified i guess what i'm wondering is for a discretionary ruling like like writing or denying an injunction  what is our case law required terms of to what degree does the district court decision f to go line by line die by diamond through every single possible propose argument and proposed act sure this court's precedent holds that at a minimum under rule fifty two a the district court was required to give an explanation of the reasons for denying the injunction what we have here is a conclusion of law number seven where the court simply found it found there was no finding simply concluded that gen bans presentation of evidence did not satisfy its burden of causal nexus conclusion of law number sixty four that is again a recitation from medicine which is false trial brief that identifies three buckets of evidence that were presented under minutes which is you but ignores significant parts of the record and the way the record is that looking at  of this record and the testimony that we have showing that there is direct evidence that customers were asking for these features that they were giving a competitive advantage to that medicine which that customers were paying extra specifically for the pa features customer survey evidence showing customers found this to be important all that evidence more than satisfied as this court standard in the apple for case which is that gen vance burden is to show that there is some connection between the infringement and the harm what the district court did in this case and it announced it in its conclusion of law number four was it was applying a standard saying that gen band had to prove that the patented features drove demand for the products and in light of the evidence that we have that was presented the only way that that the court could get there is to say from our own case law it is that it is a quote that court has been explained in apple for that quote was explain not referencing that portion of apple three did cite apple three it did cite apple three that the portions that that the district court used for the drives demand came from apple one and apple two  the courts this court's decisions and apple three now before you want to clarify that if if the way you are applying the drive demand standard is to require that it's the sole are the primary basis for the demand then that's an er law you have to show that there is some connection between the infringement and then how do we know that the lower court judge here was necessarily thinking that the judge says that gen vance presentation of evidence doesn't satisfy gen bands of burden of showing causal nexus right the puzzle nexus is broad and they could mean you know he had the understanding of what we said in f l three i feel for the problem with that your honor is that when you look at the evidence that gen band did present which includes the testimony of their c e o and their head of sales saying that customers asked for these products and and sort of the  of evidence that we've gone through in our brief including our damages experts are technical experts saying what the advantage of these products were how they helped to drive sales in light of all of that evidence you simply can't get to a finding that there is no causal nexus if all you have to show is that there is some connection between the infringement and the demand the only way you can get there is by requiring us to show that it was the sole or primary or under that line of thinking that the lower court judge just concluded you didn't meet the some connection i mean you obviously feel like you do but he may have felt differently about that when we the judge has absolutely no findings with respect to the evidence that i've been reciting here today there is a a wealth of evidence of direct evidence of consumer demand for this technology and the district court made absolutely no factual findings with respect to any of that evidence he simply concluded that our presentation didn't meet the burden and this court should look at the whole record including that evidence that the court did not even include within its categories in conclusion of law number six and assessed that and when you do assess that it would be unprecedented for direct competitors in a market like this where infringement of seven patents has been found and the other side's c e o and head of sales say these are these are things that customers are asking for their damages expert says they give a competitive advantage they're charging t and you never asked for a woman or income and that is evidence of a lack of irreparable harm judge laurie what the court specifically found with respect to the timing of the  does both of those as i think he states two reasons he doesn't say independently sufficient reasons but two reasons for not finding irreparable harm right well let me take that in two steps first all parties agree here that off while ye and yes there are all parties agree that a finding of delay can not support a denial of injunction in this case if you reversed on causal nexus you have to we would we would think that the record is strong enough that you ought to remand with an instruction to enter an injunction but this case can stand on a lay alone but with respect to your i understand that would be your position he said it's also the i believe it's also their position on page ten of the read brief  they have met that those factors are not dispositive but with respect to the findings the court made findings of fact thirty seven through forty a are specific detail of findings of fact that the court went through analyzing did not know about the infringement after it acquired the seabass assets that was in twenty thousand and ten and explained that it was reasonable during that time period because number one medicine which was not viewed as a major competitor and number two met us which is in fr minimal it also specifically found in finding of fact number thirty eight that medicine which became a fierce competitor in twenty thirteen or twenty fourteen so less than a year before the lawsuit was filed so in light of the court's specific findings that it was reasonable that we did not in fact know about the infringement and that it was not an reasonable delay to file this lawsuit in january twenty four team that's wholly inconsistent with saying delay could be can centered in the balance of harms if there is an accompanying reliance on that delay and if we look at conclusion of law fifty two we know that the court has already found that there is no reliance on medicine which is for the other place it can be considered is unreasonable delay can be considered in the irreparable harm side of things but here we have a specific finding from the court that the timing of the filing of the lawsuit was not unreasonable to play so since it's not unreasonable delay so are you saying that as a matter of law every time the court has no latches and therefore any form of delay it can't be considered and even factors it can be considered in the balance of par the federal circuit's unbiased decision in s c a where the court specifically noted that it was unreasonable delay that could be considered in connection with the irreparable harm that's the data point that we have new have embracing what we can all call a further development of understanding the meaning of the phrase driving consumer demand he she posits that again their agenda whatever you call it argue understand the meaning of driving consumer demand and i'm just wondering what what am i supposed to take away from this i think i think there's a little bit of ambiguity your honor the most reasonable interpretation of that is that he agrees just because he put gender and before it you'll notice he cites to the controlling authority and he doesn't turn around and say i'm i disagree with what they send and why should consumer demand have anything to do with whether there has been harm caused by the infringement if someone is infringing a there is a relationship obviously between what is being sold with a patent covers why does consumer demand come into it well it does if it doesn't your honor what we're talking about  nexus between the well let me take that back the way it comes in is if you tie that demand to specific and i'm asking why consumer demand is you're on or this is a case just like the ok's where you have complex products that have thousands of different features and in those kind of it's not like a windshield wiper that's primarily got a specific feature so in these very complex big product cases with thousands of features a sudden when they relate to lost profits what with the base was no it relates how it relates to you have in those in these cases just like the apple case you have to make some determination that there's a relationship between the feature that if you use of infringing on the connected to the infringement and not a flip side a way of saying that is was the of frenchmen did the is there a connection between the infringement and consumer demand which is the court's test and here the district court properly found that the appellant here has not met its burden of proof one of the things i want to highlight is what's not what we didn't see in the evidence in this case we they did not hire an expert to provide an opinion on a causal nexus the expert testimony you see cited in the record is not concerned causal nexus they didn't even bother to hire an expert there's no survey that they conducted in this case that tries to determine whether the accused teachers here are had a causal effect on the demand for by customers it doesn't let me just let me just say i mean i think the way that i guess i'm thinking about this is  is as follows you know we have said in this series of apple cases under the heading of drives consumer demand a number of different things and there is a stricter version and a more flexible version the more flexible version reflecting the fact that there is no unitary thing called consumer demand when you have a market consisting of lots and lots of demanders and lots and lots of features so you have to take account of the mix of considerations that goes into any substantial number not an insubstantial number of choosers of the managers  the some connection paragraph of of apple three what that this report quotes from apple three is from the previous paragraph and particular quotes a sentence that is referring to the harsher more demanding standard saying that no that really isn't quite right and that's why apple three says the sole reason notion that i think in that case th district court had relied on was wrong the apple three says and then that it's the next paragraph that really introduces the softer version and that's picked an apple for what i'm not really confident about from reading this opinion here is that the district court have that softer version in mind when saying the evidence was insufficient and if that's right i certainly don't feel like i've mastered all of the evidence back and forth to be able to make a determination that that difference between the softer and more rigid standards could not make any difference in the f m here so arguments that the opponent is has made about some connection sites to the apple decisions and does not disagree with them and it's nice they did before i think the most clear interpretation of that is he does it maybe to a reader like me the fact that the one positive thing that the judge adopted about our case law is the phrase driving consumer demand which immediately puts him in a danger zone because that's the exact same phrase that the apple for this court deemed to be something that needed a taper on in that particular case still is drives consumer demand that's a standard now interpretations of that have come afterwards that does not mean one interpretation is that does not mean it's the sole or predominant driver of consumer demand it has to has some connection in the other to the other interpretation is it has to has some connection now maybe the word some hasn't been defined by the federal circuit but that those are both interpretations of the obvious but the paragraph conclusion five which as you know says and argues is then followed not i say even under those that you find so i can't really tell whether what follows immediately after is a way of saying  i'm applying those standards or can then has just argued this but you know the standard isn't that love well your honor i think that it's very reasonable and probably it disagrees with that it brings it up there but their whole argument is just that he sticks the word jen van argues in front of the propositions the court itself is citing the apple cases for those propositions and the court itself is not disagreeing with them the court does not disagree with that it takes those as is part of the statement of the law and then it goes on your honor and there's no statement in here indicating the co applying the predominant causal requirement or the be the exclusive driver of demand there is no statement whatsoever here of that your honor so i think that would be reaching out guessing about that why why wouldn't it be more sensible particularly when and next paragraph is really the only paragraph that discusses the evidence and that obviously you know it's fun to have lines wrong and i think i don't think you would disagree that there was at least some amount of evidence on this question of how many sales may have been lost as a result of that teachers that's not really hurt here your honor first of all of course as everyone knows the judge presumes to have considered all the evidence but to answer your question to do so would be essentially imposing a requirement on judges to talk all the way through every you know all the permutations of the standard no no no you know i  mean it's is a judgment about how much discussion conveys that all the important matter has been discussed under the right legal center and sometimes what we're faced with is some uncertainty about that and sometimes we don't have any you know any uncertainty that makes us think the outcome is in any doubt i'm not quite sure that we can reach that conclusion here well again th the there's no statement even addressing the problem primary the prior incorrect interpretation or drop in demand and to do the opposite their statements explain why i put the words general argues in front of it but certainly the court was aware of the standard the court cited the standard in the court never said it disagreed with the standard and so basically we're talking about what is a district issue let's say that and then add twenty six pieces of evidence you know evidence a b c all the way down to evidence and then the district court decision said during the trial gen ben presented evidence a evidence b and evidence c we don't find gen vance evidence to be  live witnesses you assess credibility he went to great effort to hear all the evidence and we know and i can cite you cases that district court judges are presumed to have considered all the evidence the fact that i mean in this case we're talking about hundred over one hundred pieces of evidence maybe a thousand where do you draw the line on how far a judge has to go in addressing each piece of evidence right but i guess in the hypothetical that the judge is and saying i've considered all thousand pieces of evidence and here's where i fall and here's why i feel that way it's more i've consider evidence a evidence in evidence see well those are the main tranche is in which the evidence is organized below in the judge doesn't need to say i've considered every piece of evidence because the judge is presumed to have considered all the evidence so you know you don't you plenty of instances when you have an opinion that doesn't say i've considered all the evidence right but that now we're left in a position up here where all the briefing there's twenty pages of briefing on each side that all these additional pieces of evidence that  fall and the three tranches and now you know we're the ones now trying to figure out why the lower court judge could have been right in in concluding that these pieces of evidence likewise don't help and i think the evidence if you look at it in the briefing is indeed mostly in those three three traunch as your honor and the other other evidence i could go through an address but it's not persuasive evidence so again the court summarized it's part of an eighty page opinion there are a lot of issues before the district court in the court went out of its way to hold a bench trial didn't just do it in the briefs to assess the credibility of the party it's one of the things that you know this is why district courts are the primary people or should be deferred to and look for clear error when you talk about all this evidence that you have to weed through all you need to do is say these are a piece of evidence that shows clear error and there is none you can go through each one of these pieces which we don't have time to do but none of more flexible view was with the parties debating that did everybody agree that in particular the other side agreed that a some connection standard is is what the court should be applying or i don't have to check the briefing to be sure but certainly they were focused on the drives customer demand as as a lead argument of theirs whether or not they acknowledge the some connection i  you have to shed those words and replace them with other words to get like the some connection standard to start you know getting the feel of how demanding the standard actually yes right and your honor pointed to apple three and apple four and  there was discussed three examples that would satisfy the some some connection not at those are the only ways but one way was to show that it's one of several factors that customers consider in their buying choices another one was to show that there are benefits to the patent bench invention that make it more desire rable significantly more desirable for customers and the other one was to show that the absence of that invention would make it less desirable and the evidence and in particular the evidence that was not recited anywhere in the court's order on the injunction shows that we satisfy counsel nexus under all of those examples under all those standards i take issue with my colleagues statement that pretty much all the evidence fell into those three categories i don't think that that's the case at all the evidence of the c e o and the head of sales of their side testimony about customers asking for this that's not in evidence that their damages experts said that the five sixty one patent gives a competitive advantage to us that's not in those buckets evidence from their documents saying that the five sixty one patent is a key selling point for them not in those spots evidence that we had a customer survey on that two seventy nine and five eighty nine patents where customers said this is important not in those pockets evidence that customers were paying extra for these patent features not in those pockets we've got critical significant evidence here that in our view your honor this is this is like the bosh case where we think if you were remanded to remand this and anything came back other than an injunction should issue what you'd be doing is basically giving them a stay of an injunction without a bottom which is an equitable and then just like the  case we had a fully developed record and it focused only on the injunction point that's what we've got here there they had seventeen months between the jury finding of infringement and the oral argument that's just what we have here