please the court this is an exceptional case not because of anything that medtronic board lawyers did during the trial or before but because of how exceptionally important it is that this court reversed the sanction of war which is not only entirely on warrant it on the facts in the law but more fundamentally is inconsistent with an adversary system of justice in which each side is  the trial courts are in a position to deal with that and we have an abuse of discretion standard but we had a claim construction of reference means an a forthright open manner and say we intend to put on proof that a button or other form of fastening device meets the function way result taps after the  construction in this case medtronic we drew three of the patterns that it as to which it was prosecuting it announced to the court that as two beautiful words and roberts not heilbronn which preceded which didn't involve this but the twelve judge bryson with respect will we have to distinguish between the two equivalence patterns bugles and robert wright and the two literal patterns which are the he argument that goes to this notion that somehow proceeding not a theory of acquittal wins with respect to pupils and roberts was vexatious for misconduct as to heilbrun what happened well there was a difference and here is what it was there was one vision and one is exactly at our expert report by dr taylor professor taylor gave two reasons why that limitation was met in each of the two devices one refer referenced workspace calibration and the other reference camera calibration at trial he proceeded with testimony in evidence relating to workspace calibration as to either that is the simpler we simplified our proof and relied on one argument of position but we ask each of their two devices we argue as to hire and this element we are experts presented testimony as to two reasons why it was met and a trial be present or only one but i think judge goals and roberts that is the equivalence or non equivalence of optical or passive optical to active acoustic and electromagnetic this was fully and completely contest as to either function or result they didn't read the trial court agreed that the function and the result of the optical sensors versus the acoustic and electromagnetic sensors was the same the whole dispute was about the and that is that i can appreciate in a lengthy trial that one can always found this or that to complain about and when you pull the interactions or misstatements or whatever else together in one place they look pretty bad now that experience judge who seems to have recognized that as you proceeded with the trial but obviously when it was all over something very much case we have a very very elusive pretrial and trial record we know how as to each of the assignment of the current assignments of litigation misconduct we know exactly what happened and exactly what the judge did and if i can i mean do that the judges litigation misconduct conclusion is predicated on four principles and i'll  what what what permeates his entire sanctions opinion and his role fifty b opinion was that we had distorted his claim construction that's just one of the witness every single time in our opening statement in our closing argument in room since testimony smith's testimony bugles this testimony you look at the cited ages they are absolutely scrupulous about making clear that they understand that the claim was literally construed to require an array of microphones that they are proceeding under an equivalence and that it is explained over and over and over again in this case so him he was simply made and he understood that he  will a doesn't want objections on this point with the contemporaneous explanation that this is the function way result analysis and he's explaining why he thinks it's an  three times on this basis it is an error of law for him to have subsequently changed his mind and concluded that by proceeding on an equivalence theory we were distorting his rulings that's number one made mention of it's a presented as a distortion of the literal claim construction that's the error of law now he made three subsidiary findings with respect to litigation misconduct and i think i can address each of them fairly quickly the first was he said well after graham inspiration of our device the stud station was an improper effort to may invite the jury to make a product to product comparison now a couple of things about this first ruling they said will stipulate that these products compete with each other and we reprinted in our library if i think his it is ruling where he said to brain labs and lawyer are you going to demonstrate your machine they said yes he said well then i'm going to let them demonstrate their machine with an instruction that the jury for purposes of determining infringement is not to make a product or product comparison and he gave that instruction then he gave that instruction in closing and interesting way he gave that instruction in the end he interrupted mr campbell's opening statement which was making incessant product a product comparisons twice sustained objections by many products trial during their opening statement that they were making product to product comparisons and it interrupted mr campbell and instructed the jury during opening that they were not to do so so he after the fact five months after the trial was over he was castigating medtr we agree with you that there was no there was no impropriety and pursuing the doctrine of the equivalence they are e but focusing entirely on the incidence of litigation misconduct the one that frankly gave me the most pause is the f d a submission being converted into quote substantial equivalents substantial equivalents substantial ok which i think we can all agree is not correct right as a legal matter it's not the same thing that's a substantial equivalence between those two products and up and quits right i have actually quite a bit to say about this and i my checklist of things ok well let me go right to it because i agreed that this is i mean in terms of something that might raise eyebrows this is really the only thing i think in this case the only other point that he mentions which may be the court doesn't need a lucid ation about is the closing argument remarks of a prosecution just well actually though the woman up is most troubling was the one in the open state ok well let me let me make a couple of points about this first of all we we had we never contended that the f this court that this court ruled that as i mean it it clearly involves a four zero three four a one you know prejudice first as probative value issue but it was in two thousand and eight that this can affect all of two thousand and eight that this court held that it was well before trial in the summary judgment briefing of the pretrial conference it was clear that brain lapse theory was they were going to win because they were the innovator their product was first and we copied we put their f is that it was if that was a misstatement it was a misstatement that was not objected to they were didn't request at the time they did not request a that the jury be instructed they did not discuss it in their motion for sanctions before judge made judge made doesn't discuss that in his ruling oh i i interpreted judge made reference admission for purposes of infringement but judge nature refers to the argument made by counsel as deceiving the jury into accepting the statements in the f d a application of his admission of patent fridge which i took it to me valid purpose of demonstrating that they that we were the innovator and they were claiming a right to sell their device because it was substantial with ours at closing argument which is where this you know admission wife comes up in our in our opening closing in our national closing we didn't mention the f d a at all not one word about the f d a mr shaw who was making the closing argument for brain lab mentioned net twice he opened his his closing argument with a reference to the f d a application and he cloned it with that and so on the battle mr mcmahon got up and said among many other things they're talking about yet ye a application and let's talk about this and he's happy if you look at the records pages which it's very very important i think this is this  was being marketed was they admitted in their application before the f d a that contrary to their contention that they were the innovator they were not quite they were seeking the request for a license because we were now isaac and how does that relate reference to substantial quibbles which was what the argument was directed to with respect to the f d a submission and repeat it done several occasions substantial equipment substantial quittance this is not just in the opening statement although it's it's infringement related issue why not well i i mean honestly i think a seven point one if the sanctions award and i know of the first point is there  innovator in contrast to their argument that they were now trials to price and you know from reviewing the records and many of them trials are not perfect mistakes are made in this case was tried for three weeks there was plenty of misstatement on both sides including their closing argument in which after the judge made it clear that the prosecution history of stop was for the poor or not for the jury they spent ages arguing to the jury that it should limit the claims of you will see because there had been a clear waiver or a clear disavowal of of this and they should view that the jury should view the claims as the fact that they said that the fact that in their opening statement they had to be admonished twice for making product to product comparisons doesn't mean that a section two eighty five a work of millions of dollars of sanctions is appropriate under a standard as this court said and forest labs that it is necessary in order to prove that a gross injustice trials are rough and messy things and the notion that  layout would be sanctioned and publicly is subject to the public admonition as having been gauged in outrageous litigation misconduct because of a couple of sentences that were either not objected to at the time at opening statement but were objected to and were permitted at closing argument is is a i mean to say that there is a chill in the tribe are even because of what your  this much has this laurie if judge judge a major drew the line very clearly prior to trial and throughout the trial of you one of the one of the remarkable things about this the most remarkable thing about this case is unlike the other cases in which you found litigation misconduct of any sort there is no fooling there is no concealing there is no dissent bling everything is absolutely out there and he will every single instance that he points to for litigation misconduct was either the subject of no objection at the time when our it was in a heap of the rule the objection and agreed and allow us to go on and it's that that not at the time of trial and judge major did that and what is just so exceptional about this case is that five months after the trial is over he came to a conclusion that essentially reversed every made but i do think it's important to recognize the reason i'm here is because and it goes directly to your question just or which is why should we try to pack precisely what the district judge has done in this context and it is because the judge has gone to extraordinary step further and post sanctions directly against the law firm and bald in this particular case and therefore the reputational injury that is brought as a consequence of the order here is an extraordinary one thing that applie it was a failure to raise an equivalence issue racism row practice question well it would place you in an extraordinary position if you could if you step back and say to the lawyer but you know you've made a good faith argument with respect to some refer to the district court true would be in the context of the doctrine of equivalence which is about as squishy a set of requirements as exists out there and particularly as mr waxman pointed out if you look at the function and the result there's no question that is whether or not you can make a good faith argument and again you lay it all out i mean this is that there is no dissent there is never concealment here it will all put forward in the in the summary judgment papers to the district court i take it to your position of i think this is clear and i mean i suppose you could make an argument that somehow the inherent powers doctrine is out there but it seems to me nine hundred twenty seven does the work here and therefore there is no role for the inherent power write i don't think there's any question about that now that said i have to be honest with you judge bryson the findings of misconduct continue to serve as a significant black mark on my client reputation and i think it's worth the court taking a very hard look at each of those instances of misconduct because candidly i don't think they will stand serious scrutiny and i understand the district judge is closer to and he has the advantage but the truth is we're talking about a district judge who at the end of the trial complimented the look there's in this case for their professionalism and for the efficiency with which they handled this matter so at least in terms of how the case proceeded there was no question in his mind about the legitimacy of what the lawyers had done here it's only in the retrospect in the and post hoc hindsight evaluation that the court didn't suddenly comes around and concludes i should never have allowed this case to go forward well that's fine and he any did the right thing again he granted j a well after the jury for and that's fine but the basis for them going forward and not only imposing sanctions on the client but the lawyers is is frankly totally beyond the pale when the basis for those sanctions at least once you get past the summary judgment ruling which i think ultimately isn't defensible as you know product the product comparisons were was absolutely clear that that was done for lost profits multiple instructions to the jury it may well be the judge may choose right that the jury product or product you confusing the jury and this is really where perhaps if i read every word of the transcript it might be a little bit clearer but what is your perception as to what in fact concerned after his claim construction the effort to evaluate the doctrine of put forward a doctrine equivalence argument was in some sense we are going a little the literal and frenchmen theory and that's ultimately what drove him to say i think there's a problem here and one that needs to be corrected by way of sanctions i think that's i think he's wrong about that i think it's clear that the doctrine of equivalence argument that was n p r was offered in good faith put before him and you know if you should have a grant of summary judgment that's fine but he chose not to do so and what you expect after that follows so when you get down to the specific elements of alleged misconduct that frankly think each of them really is quite trivial in the scheme of yours it may well be that the jury was misled but there's no evidence that we perpetrated that effort to mislead indeed we were the ones who said specifically your honor if you don't you shouldn't struck the jury that this is only with respect the last prophet thank you for must but not to beat a dead horse and easily see what jury led to that conclusion could say you know what look at the a statement so they did it that this was equivalent if i didn't understand how the jury may have gotten that confusion but what i can't say is in light worth i came away with the impression that it was it was intentional it didn't sound like slipped to it but again even if you accept that first of all it's not the it's not the item that the district judge adopted so it's not as though that's a finding that that was crystal that all are talking about is an admission that our product came first they are admitting that our product came first he relies on the second one taken slightly out of context where he says this is an admission where he says that you could potentially and read out a different way but it's pretty clear to throughout if you read this fairly that now so it was simply making the argument that this is an admission that they are equivalent we were first and therefore that's a perfectly permissible way to go and again put very beginning in the opening and one in the rebuttal in the closing well the one thing else that the lawyers do really remarkably reflects some effort to make good at the moment in the closing that that seemed to me to tie back into the opening more than any of the admission that francis was the reference to substantial equivalents that is that there's directly at what we're doing here today in french that well except that what we're doing here today is evaluating every aspect of the the good guys in this context news and he's trying to make that argument again recognizing you know that this is not something where the judge seemed to misunderstand what they were what we were trying to accomplish there where they had a problem some way six months after the fact when he comes in and then of course the final point the prosecution has for his op which i frankly don't think there's much to say and i want to see the other side and having said much about that i would like to end with the same point that our brother waxman did which is it is incredibly important to this court to recognize the extraordinary chill that this ruling has had and will have in terms of how lawyers are supposed to respond when they have fact succeeded in making reasonable arguments and then expose themselves after the fact to it what i would regard as a an doesn't mean that we you know i've been to many trials they've i'm sure sat through many trials as have your honour's that is a conventional thing that almost every judge does at the end of almost every trial regardless of what happens it's common courtesy yes a lot a lot went on here in their favor yes you right just turned a corner no we didn't well i mean i think what happened is the judge realized that these weren't isolated incidences which is what it seemed like at the beginning most of the times when there was an objection from us the judge overruled it but he didn't strictly overrule it you know ruled because for example truck counsel would say you know i'm not going to do that i'm not going to make comparison and then the next thing he goes of my own sense of this one reason i focus so much on the substantial quotes which you've turned to is because i frankly looked at all of the various points that the judge and you in your brief have alluded to and i'm having a think justify what the judge did in this case tried to help me see what is so horrific about each of the things that you complained about that the judge where you think the judge was justified in saying this warrants the exceptional case treatment and one nine hundred twenty seven sanctions against the yes first one point out we're doing this for years after the trial you know the judge of course sat through the trial the judge sat through you know understood the discovery he understood thank instruction everything else thirteen days of trial he was the one best able to look at this as it happened not in a cold record but i think what happened in the judge realized towards the end of trial is that these weren't isolated incidents it's shit wasn't just substantial equivalent to wasn't just this distortion of the claim construction it wasn't just the comparison of the devices they all came together reference means they got rid of the of the microphones and they'd set it sensors they said it's exactly what they've lost on and if you see if you go through all the exhibits they've used they got rid of the microphone array and they compared everything to sensors so that used to achieve this result that one of the microphones or senses never that was their argument your argument was otherwise the jury went one way the judge went the other and we upheld the judge judge was a little more comfortable letting the jury see that what we know now that they knew that that was a misstatement at the very time because now they admit that they know that their product wasn't covered so you know they made this direct misstatement to the judge so they could build this comparison and then they brought in the f d a statement which means made it so that they could just say look members of the jury substantial equivalents dr of equivalence it's the same thing you don't even have to look at a patent you compare our devices understood the judge who was there at the time that's what he took away from this that that's what you're going to understand at least references to substantially good ones are is comparing the devices because they happened throughout case it wasn't just i'm not advocating that you can't make a docking of a good argument you can't we all do we should but you have to make the right comparison you compare the device to the claims as construed by the judge that's not what they did mr m head and the witnesses had scrupulously referred to the a rave microphones instead of the censors each each time would have been appropriate in your view for the plaintiffs to have taken the case to verdict which said all these are equivalent they said they were aligned on those that think that they had a good faith basis well they have course had more access to their records than we did and just in simple cross examination a trial the experts admitted that there was very little basis for opinion which you would have thought they did after you know their expert about wasn't even in the code there was no evidence whatsoever and the same thing happened with buells and rock and roberts because when we talk to their expert on the stand we cross examine him we ask again about the way because this is a case about dr equivalence about the way how do they function to function the same way he readily admitted to several different times that no they don't function the same way they're opposites in fact  be punished exactly and that's why again we go to clear air that's the standard here the judge was there the judge determined that the jury with a straight simply because the representations were made they went astray because stage opening argument opening argument from the very beginning compared the device and said substantial equivalence right doctor to quote some from the very beginning the comparison it wasn't about the claims it was about the two products and the f d a submission it very easy to do that and then once they got out and they convince the judge that they were going to prove that their device is covered by the claims even though they knew it wasn't that allowed the judge to convince the judge to show their device and when we showed both devices a couple days well particularly it was ok again all of the isolated incidents we're looking at just seem to be you know some are spaced amongst the thirteen day trial right but when you look at them together what is it where you're going response to chuck schumer's question is is to say that the theme that integrates all of these various strengths is the product to product compares is it is that a fair exhibits would show alternate tracking units and what the claims are supposed to mean their expert dr grimson says that this is what i interpret the ct claim construction to mean you don't see a ray of microphones on there you see sensors you see the exact claim construction they lost totality in light of the plant construction will without question as to tear this italian that's what judge said the judge really said but i think also some of those individuals are not for sanctions we get to take them all together and we're good travellers begun this before you have to wonder how did they make all these errors if they weren't intentional if we were to conclude that the judge was incorrect with respect to saying that the case should not have gone beyond summary judgment they should not have pursued this case to trial but correct with respect to individual points as to anything goes you're free to make any argument you want no matter how frivolous the matter how taxation is no matter how misleading improper because they say nine hundred twenty seven can't get to that well if it doesn't belong found out in their grief i think that's the thrust of it your honor i am not quoting them of course per se but that's what they say that's what they argue is that once they get past summary judgment nothing else mattered and in fact i believe that are we  where this comes in if nothing else because we know it can't be true you know as lawyers we know that once we get past summary judgment we're not free to make whatever misleading for his argument we want we're bound by other sorts of other ethical considerations to the court it will in memory off the hook just because the court could have granted summary judgment that said you should have grant summary judgment if you know i understood everything about the case that he learned after after the trial has expressed concern about among many one thing i didn't mention is even after this report will close however it was or wasn't interpreted but at no point did they ever request an instruction to the jury that you've heard about this f d a thing it's in evidence but i caution you to do x y and z they requested and received we requested and received and instruction our product or product comparison first during their opening statement second at the time we've demonstrated our machine with the court's permission and serve at close all even if you find fault in joining price and i know see how concerned you are about this reference we're talking the question here is whether there is a clear and convincing evidence that that statement or it was two statements taken together that there is clear and convincing evidence that they represent  kind of roast in justice that in hindsight contrary to everything the court did or didn't do it that warrants a scarlet letter of sanctionable conduct and even if you sought that it did this court made clear in rambis and elsewhere that sanctions to eighty five sanctions that are based on litigation misconduct alone have to be targeted at whatever the precise misconduct is not some huge a war and there were ways to everything that was done after summary judgment including our successful defeating of their cross claims and their request for travel costs an expert i mean it nothing else shows that you buz have discretion in this case it's the judge's cavalier rejection of the arguable point as to which they were entitled to feeds now they keep wrapping this f d a into a plot to product comparison i made the point about how we respected the instruction at the instance of their opening statement you go on to page thirty three no six of their brief where they list out all the instances and we simply suppose that we constantly urge the jury to make this and look at our treatment of it on reply brief page twenty one notable eleven it's not there we did not encourage the jury to make repeated product to product comparisons it's an outrageous statement to have said that we did so now my third point is with respect to the doctrine of equivalence number one our dr nicholas argument was based not only on our own expert testimony which was in all material in respect material respects fully disclosed in the summary judgment papers and affidavits and revealingly they make no read their brief doesn't even cite to any of the summary judgment papers and the expert reports in the places in which we laid all of this out they don't have a single example of an instance in which our experts testified differently on equivalence doctrine of the equivalence argument was utterly directed at the claims it was optical and sonic sensors in a very similar device their own the president of their company acknowledge that after he had decided to proceed with passive optical technology they tried to get a license from surgical navigation technologies the little company that had the buells patent and is the plaintiffs in this case so our dr newcomer's argument wasn't just based on our expert testimony it was also based on missions of that would respect our experts if you want to go to the notion that we were obscuring the court's claim construction which is repeated in their brief over and over again not with reference to doctor occurred and i begged the court to read these pages is sixty five seventy six sixty five seventy eight of the record where dr vincent is asked question now did you take into account and apply the court instructions with respect to referencing the answer absolutely the court said that reference means here was an array of microphones ok so how do you find that met there are cameras he said in answer i found this under the doct kimball objection this is a representation from what they want the claim to mean it's not a claim at all the court well it's a representation of his testimony as i understand its purpose is that correct answer sound waves so this is a block diagram of a reference i'm going to use the work tracking prove that because to me that's in essence what this is doing mr campbell objection he's replacing the court's definition of reference he said he replaced reference means with tracking unit that's obviously not correct because the court has given it a proper construction which is not correct and you know the court he's testified to his opinion that is the same thing as i understand the testimony is that correct answer thank you your honor the witness yes it is sir the court right question and no and that was the court's construction was it not in a right microphones answer simply my term for what i thought of this as but the court we understand your testimony sir go ahead and it goes on and find in this vein alone those mornings and that's the context in which find the mayfield referenced our first well ok this is an apparatus claim as we pointed out in our city in our briefing and that on the legal points there is no particular requirement that it be found first and they are all products information which we introduced at trial with respect to this one disputed element as to the aisle one claims specifically says and i'm quoting from the