type of fact pattern we have in this case so if you recall in this instance the district court issued an injunction based on infringement finding and this court vacated the injunction vacated the infringement finding and then after that the court put in the findings of contempt so when you look at the original united mine workers cases that i promise i won't read too much case like to you but there are a couple of really important quotes in there on how the first of all if it's this damage amount is anything over sure compensatory it would be a criminal sanction and a criminal contempt sanction is immediately if you will but first of all we don't even know what the number is  and due to enter the final number but they didn't enter the final judgment as to the case percent correct be there's a well i think there is a final judgment with regard to the contempt for him in the case for weight final judgment is not a  because it was post judgment then they had jurisdiction at that point in time when the post judgment the the order its title judgment it's we have a clear form from the district court in minnesota it's titled judgment that doesn't necessarily make the final judgment where there are proceedings that are ongoing that's correct and as soon as we find no jurisdiction because of the ongoing nature of the case the issue that you are appealing on contempt is not going to be foreclosed when a final judgment is ultimately entered in that right now that words the issue that you're arguing now is not going to go away you're not going to be foreclosed from arguing that if we should say we don't have jurisdiction now we could use a lack of phonology you've got to wait until everything is done and once everything is done then you're going to appeal and you can appeal the contempt order just just compensatory and that would be lost profits in this case it is that criminal sanction and it's immediately appeal and supreme court is one over and over that the district courts have to be credibly careful about as civil and then adopted a number that has no foundation being actual compensatory sanction is the number one the lost profits number no that's incorrect the adopted number was the last profits determination from the district court on u s sales one of the key issues here is this is an extra territoriality sale the contempt action here work emails sent to the united states but the machines are small car size machines are built in israel one was shipped to malaysia and installed the malaysia flight ok so you're trying to get to the merits of your argument but that's what contempt about and yes assuming this is a us sale then the last profit amount is correctly the exact amount of the lost profits that were awarded in this case you're trying to tell me no this is a for the sales look at transocean your honor this shouldn't have ever been something for which an infringement or contempt or anything else t her but that's part of the merit that's not if i assume what the judge said is true this is in fact contempt and then you have to assume that the lost profits is the right number right that it is clearly simple because judge determines that it was a multiplayer market and awarded a sixty percent market share to the august and will in fact in august in its original briefing ask that same sixty percent market share to be applied but the court w supreme court requires so that forty percent penalty alone makes this criminal but it again the analysis was based on a theory of compensation which suggests that this was civil which is what the judge to explicitly said the analysis was based on lost profits that the court disregarded its own constellations to enhance this number up from a sixty percent reduction to stand but nonetheless the analysis was predicated upon if it compensates or courses origin's not an issue here is to compensate for actual loss anything greater than actual loss makes it criminal under the dumb question who would get the forty percent of market share so you said they had sixty percent of the market share right was in a forty percent not infringing alternatives what was the other forty percent believe it was spread among other other competitors ok other competitors selling the same device  are large machines so there's no evidence the record that these other devices in french or anything along those lines but keep in mind the contempt issue here was the judge prohibited not justifying the conduct but the judge prohibited communications that came into the united states for each sale that went from israel to some other country so this is not about products that ever came into the united states the sales would have been absolutely permitted had supper a couple of e mails appeal it does dispute the remedy and as we set forth in our brief we do not believe the dischord abused its why discretion and setting an equitable compensatory remedy clubby they argue that the remedy isn't punitive that it exceeds what could have been awarded this compensatory remedy yes your honor that is correct and with respect to that you know first of all the supreme court has made very clear that the  compensatory remedy one point four million dollars that's the amount of sales that can check made but we don't have to get into that because in this case as i think the court already recognized the compensatory remedy that the discourse set for violations violating that court order payable but i don't know that it's taking a position about rule fifty four hours to set that requirement but even if that language is missing there has to be something that makes it clear that there is some sound reason to justify departing from the general rule  pretty clear that the two thousand and eight case and we said that you have to have it's not even enough frankly to have no just read right or delay language you have to have more than that so for us to have a situation where we don't even have that language is going to somehow could apply i don't know how we could make that leap absolutely or i mean it's this court might say there's no jurisdiction ok so we either have to have a final judgment do you agree that this was meant to be a final judgment i think that the district court did intend for it to be  on the issue but certainly not on the whole case ok that would be the use rule fifty eight language anywhere in that i don't know if i have the exact i don't have the order that the court issued right in front of me you know the court didn't obviously use that jury's lost profits award determined in a jury trial affirmed by the district court and then used by the district court to measure compensatory i mean to measure supplemental damages after trial as well so it's certainly a measurement of the underlying judgment upon which that injunction was predicated certainly so both united mine workers in other cases since then have made it very clear that while the injunction is in effect it must be obeyed and that violation i'm sorry in violation of that injunction is can count whether the injunction ultimately is vacated or not and that's something the united mine workers recognize in the paper it is the ball and it is sanctionable yes under a criminal but is it is it does it remain sanctionable if it's a civil case yes so obviously united mine workers with a criminal case it was only considering criminal but since then that has been recognized in civil cases as well the howard johnson case that we cite in our brief  purpose of a civil contempt sanction to compensate ok so if it's determined that you have no right to compensation how should that compensation still stand the question is the compensation for the violation of the injun know that you know that's criminal that's not that's not what the compensatory nature goes about compensatory compensatory civil things ssion all of the cases say is only to compensate for the harm suffered not for some theoretical violation of an injunction therefore the court's inherent power to require people to obey it but the harm suffered by the plaintiff if the plaintiff suffered no harm because the injunction was improperly in place then how can a civil contempt sanctions so the civil contempt is for the harm because of the violation of the injunction not because of the harm for violation of the patent rights those are different things and that's something that the howard johnson case specifically recognized the court said it was a coalminer injunction case on a trademark and the court went on to say even if it turns out that the merits of the case go the the other way which is to say that the injunction was wrong the contempt the civil contempt still stands and this is a perfect case recognizes the exact same thing so it goes on to say that compensatory civil contempt actions do not survive if the underlying injunction is vacated because it was issued erroneous at the united mine workers language however compensatory civil contempt proceedings made continue when the underlying injunction abates for reason that does not go to the jurisdiction of the issuing court entirety doesn't matter and that's something that again the howard johnson case specifically recognize that something that united mine workers recognize united mine workers that you have to follow injunctions whether you like them or not whether they're later vacated or not you must follow them final on that issue obviously the case itself was not final but it was final and that issue and district courts allow parties to try to reopen final determinations on the issue that really a political reconsideration underwrote fifty nine not sixty eight that's rule and it started and what she said directly contradicts what the supreme court said in united mine workers we're going to apologize for reading a very short clip but this is from three o four and it says such fine must of course be based problem sometimes you know that notion of be careful what you ask for but you have to have this be criminal in order for us to have jurisdiction but if it's criminal then you have no argument that it somehow fades away  if in fact the injunction to set aside or if in fact the injunction was a row ensley entered mean are you sure you want to argue that this is criminal the well first we're never given due process for a criminal contempt sanctions at all so we haven't and so you have a right to appeal then that is what we send it back and say you have to give them all the process that is due for a criminal contempt no thanks and and you don't have the ability to go back and argue that that under united mine workers because it's civil that it should fall away with our earlier reversal of the grounds for the injunction no that's not the the outcome here the judge the judge time and the second judge to look at this specifically looked at it and said i'm not putting in civil sanctions call them civil sanctions but didn't get the calculation improperly and so it's long as the regards of the label that the district court puts on it the only procedures ever given to it were civil everyone treated the civil but the dollar amount that was awarded violates bagwell violates the united mine workers because it doesn't actually compensate them for a lot and adds united mine workers said a plaintiff shouldn't be allowed to profit on a civil contempt issue and if they can't prove an actual loss then it's a windfall to them where a criminal fine will go to the government that that argument is one that you should make in appeals from the civil sanction and to the appropriate time and the argument should be this is not an appropriate civil sanction it should be set aside because it has a criminal character to a rather than try to to to shoehorn that into an immediate appeal because you're asking us as if there's more said before to analyze the merits in order to determine the jurisdictional question and that seems backwards it is because this is a due process right i think the court has to be more cautious the district court labeled the civil and then states criminal sanctions then this court has to look at taking jurisdiction there because it is a criminal sanction and the last thing i always do with mine is you know the questions was the final order from the courts the judgment so i do believe that god gives a final judgment on that issue there is no other issue in the underlying case that need to be resolved for this content on the civil side for the courts also you know the question thank you ok case to submitted i think both counsel for their argument