me a place to court and i intend to focus this morning on two issues st the indefiniteness of claims to recite the position of a projected image in relation to a given plane and nd the requirements of actual notice under section two hundred and eighty seven dollars and reversal on these two issues would lift the permanent injunction against rolling objects current products and remove all but fifteen thousand dollars of the damages even trouble you may have to to reverse on both of those issues you know in order to affect the current judgement or would  describes images that appear to move up or down quote as the material is rotated through a given angle now we all wonder and understand that statement it has an ordinary mean a given angle is not a term of art and similarly the claim for a piece a given plane has an ordinary meaning it's readily apparent to all a judge and under the circumstances philips tells us that claim construction in such cases involves little more than the application of widely accepted meaning of commonly  stood words the problem here is that as claim language a given plane is used as a reference so the words are understandable and when you look at the specification it's the plane of the system that might not be the exact words but that's the plane that is continually referenced and so that's the for me that should be given to this word in the claim in the context of the specification so what your response to that is is you know reading in light of the specification why isn't the charts interpretation correct several reasons your honor for st of all  what the court did was to parse the claim language a given playing and that was impermissible where the claims repeatedly use a phrase as a whole th has held that all of the words should be construed together in such cases so that was the st problem the nd problem is even if that were the appropriate question to be asking is not true there are figure twenty seven dollars for example is one example showing three image planes in relation to each other no description of the plane of the system at all so there is there are many planes referenced in the pattern many of them are image planes one is the plain of the system but but the rd problem that i want to discuss with with with the court's approach was it was asking the wrong question it was asking what is the relevant reference point now that might have been an appropriate question if the claim language was read the given plane but the claim language is a given plane it is an indefinite phrase inherently and philip's instructs us that we cannot revise or ignore the explicit language of the claim a given plane is an indefinite phrase like a reference plane so you're putting the rabbit in the hat if you're saying well what is v reference plane you're starting from the conclusion you're assuming the result because the claim language is not stated in that manner you've stated in a as a given plane and where the draftsman wanted to use the plane of the system as the appropriate reference plane in the claim language he did that he did that repeatedly for example in the four hundred and sixty two patent which was filed on the very same day as the applications for the thirty and three hundred and sixty pads now that says that it's wrong because the district court ignored the presumption which is that if there are different terms used in the same claims they without really explaining why the presumption did not apply here the district court was results oriented and that was where it was going but but in fact what we have here is the district court converting a phrase drafted as an indefinite phrase a given playing and substituting the words the claim the plane of the submitted by our expert it completely ignored the crane's expert and it's an interesting exercise to go through their briefs and and at at pages thirty nine dollars forty cents of the read brief they do basically what the district court did they took their own experts statement of his opinion and if you read the pages you will expert says uses the word eight i mean this is the problem here you can't simply substitute one word for another that's rewriting the claim that is ignoring it's clane  it's plain and explicit meaning now what the what the district court also did was to pick a claim construction that was contra indicated it read limitations from the specification into the claim the claim at recognized was broad as it was written so what the district court did was say well we'll restrict it to the float embodiment or world restrict it to the deep in body but this court in the supreme court have said that that's impermissible you don't without without express definition or disavowal you do not read limitations from the specification into the claims and whether your the patent holder or the accused infringer the same rules should apply and in this case that's what the court did in order to try to save this claim what we have then is a situation where definite precisely as the supreme court was focused on in the nautilus case the definiteness of a claim was sacrificed there was an intentional choice of an ambiguous phrase that creates a zone of uncertainty which gives de and an reasonable advantage to a patentee and it's precisely in this kind of situation that the supreme court is saying we need to check a definiteness check below that there was more than one plane of the system no you're not a not as the specification describes it and this was the problem with their expert's opinion and their claim construct they said initially construction should be eight plane a given plane of the micro optics system and their expert said well theoretically the micro upticks system can have an infinite number of planes and so that's how we're going to interpret the problem was that that was directly at odds with the way the applicants who used the term when they wanted to talk about the system they referred to it as having one plane in every claim in which they advantage they the unfair advantage your honor is that that's not how the the plane was written the claim was written in such a way that if if the infringer if the accused infringer is permitted to define have a very similar set of circumstances and as in the gart case the court contrast did the facts there too a mere invitation to determine for itself where there was any and whether there was an infringement which is what we faced in this instance and no address the rest  good morning and may please the court mark fleming together with chase and list on behalf of crane i would start with judge stoltz st question which i think crystallizes the issue perfectly which is that definiteness is assessed not by looking at the plain language in isolation but with your regard for the specification line there and then above it and below it the ones that are circular those are the planes where images can be seen some are above and they're called float images float image planes and some are below and they're called deep image planes but the reference plane the but the images of moon were were once a given plane so the images that move are not covered by a given plane claims they're covered by other claims that would site images that appear to move and but those aren't subject to this particular issue because they abstraction right it has no dimension and so it is theoretically possible that if you had a surface in real life that has a dimension you could fit any number of infinite planes within it but practically speaking for purposes of this issue the plane of the system just one plane of the system for the purposes for which this testimony is offered which is the above a given plane being used as a reference for what is above or not i mean practically that is was saying and we clarified that on a summary judgment but you know it's true he could have said that but ultimately it doesn't matter because no matter what plane of the system you're talking about whether it's within when it's within the fifty micron thick layer it's evident whether effects but altering the stereoscopic scale ratio between the array of the lenses and the a ray of the icons that's why and to mr steers suggestion that the district court didn't rely on any extrinsic evidence on the contrary on page twelve it specifically looks at rolling optics is only tiriel it's which talk about images appearing above or below and they don't say above or below what because they don't need to everyone in this industry understands that we're talking about putting images above or below the as not when the claim is for you article talked about no not in in not when the claim is as the review of the article also talks about viewed in the context of the specification and the entire record including the findings of fact that the district court made based on the extrinsic record and let's also be clear in response to a point that mr steere made the expert declaration from mr again gail was struck at markman as untimely that decision has not been appealed and then when we got to summary judgment rowling optics did not rely on that declaration at all so what we have now is a finding by the district court on page ten of the appendix that rowling optics submitted no expert testimony on this issue whatsoever and that's not been appealed to the district court certainly was not required to trawl through the record and find a declaration that rowling optics did not even rely on at summary judgment so and if more were needed again dr barber status testifies that skilled artisans know that above the given plane refers to the plane of the system which is why they will often just say that the image is float they don't have to say they float above what they don't have to say they float below what because everybody understands it's a plane of the system other patent applications that we said have done lifelines and to the extent more were needed that we don't think it is we have the one does not come to mind that uses the given plane in the colloquy with mr spear and he referred to the one that refers to the plane of the system which the district court also realize show that there was antecedent basis i can't think of one that does it in the way you said a couple of points just in response to the notion that just because multiple different phrases were used to describe the same thing obviously this court in a nova has said that is not unusual it's that same thing in blue calypso and in bancorp it's simply a case with a patent to use different phrases to express similar concepts so that's not unusual this is not a situation of reading in limitations from in body vince if this court said and i don't assert that it's determine how a skilled artisan would understand the limitation is different from really writing or reading in a limitation here we have a limitation a given plain in the specification gives meaning to it and raises still ours and would look to that there wasn't much discussion of the notification issue let me just say the jury was correctly instructed on this there's d the notion that someone receiving that letter would not know that there was an accusation of infringement by the very products that were mentioned in that letter is something that the jury was asked to decide we're going to find its arguments by the products mentioned talking about that descriptive language of products that certain things the products for sale that produce three dimensional images that appear to exist on a plane other than the surface of the film that's right and i don't think there's any dispute that going off it's was making at least one such product not that many from as i understand it and whether or not that was sufficient to put them on objective notice that if they imported those products to the united states they would infringe it was a jury question and the jury answered it i would with the court's permission briefly speak to the cross appeal which has to do with the district judges order denying the tourney's fees in this case and i think this is the one legal error that the court should correct in this case the district court although i recognize it articulated the correct standard under octane fitness this is a case like a just a cam where the court mentioned the right standard but didn't assess it properly and i think this is an area where the district courts could benefit from further guidance because unlike in the non patent world or in the pre octane world where fees are generally limited to sanctionable conduct now all that's needed as the court knows is unreasonable conduct and that's especially important here given right the optics is especially weak position on the merits which is something that the trial judge aspect of the judgment should be vacated the demanded as to everything else the judgment should be affirmed unless the court has questions at this time i reserve the balance of my time to address any issues on rebuttal on the cross appeal if i may i have a question additional discussion point you know every thank you has a lot of other additional discussion sounds quite reasonable and i don't read that one sentence in the context of the rest of this discussion to mean that that was really  during the trial says these motions and efforts were not baseless or without legitimate purpose which is the old furniture standard that has to be objectively basis or the rule of an standard that you get sanctioned if you do something without legitimate purpose then there's the sentence you statute the statute makes directs the district court to analyze litigation conduct not simply for misconduct or sanctionable behavior but also for conduct that will stand out even if it is not sanctionable and to do so in come in together with an circumstances well no obviously they should be considered but there's they should be all that's considered they they should be considered and they should be considered against the correct legal standard which is something that we we don't have here there isn't a statement that this behavior while not sanctionable is also not something that i'll be brief your honor with regard to the difference between a given plane and the plane of the system the specification when it refers to the plane of the system uses different words sometimes talks to it about it as a material sometimes talks about it as other things but it always uses the word villa and if you look at the red brief on page thirty three when they reproduce all the different ways that there is a reference to the plane of the system they omit the word the now the focus here is on can you simply rewrite this claim to remove the indefinite phrase when the claim language itself is clear and that was the problem here in the court has said repeatedly the district courts are not to rewrite claims whether to save them from invalidity a for any other reason now with regard to notice briefly like the m's that case there was no dispute about the contents of the letter it was a legal issue it was decided after jail memo well against the accused infringer we have this the same situation essentially here we have letters that are not in dispute there was did it a question of actual notice of the j well it was denied so that's how it came to the court there was there was the mention of the word infringement but no direct charge of infringement there was no request for abatement in that case and unlike gart what we had here was a mere invitation to determine for ourselves whether there was in french that's not a charge of infringement that doesn't satisfy the notice requirement which which this court has held requires a specific charge of infringement by a particular product