well here next argument mexicans it's us ether net against texas instruments fifteen dash one five one zero well i believe the collateral stoppel doctrine which we can talk to may not necessarily compel that even after we've decided it as opposed to at another district court the reason i say that argument the reason i would say that your honor is simply that that it's not really been a question of collateral sokal to another district court decision and it's we've declared it happened valid and even if one or a pill polo and only appeal damages i think under did i think want to talk about the the willfulness question as you know what willfulness means and what role it plays in enhancement is currently pending and in the supreme  some of the dispute in that pair of cases had to do has to do with at what point in particular at the time of the infringement or only later in preparing a defense is that defendants come up with the by assumption reasonable defenses on that question that timing prosecution so that they knew about the patent the two prior court cases one was the realtek decision where a very similar fight was rejected on summary judgment by judge walker out in san francisco and that went to the jury and resulted in a seventy million dollar settlement under the same exact pattern the fact that a very similar fight was rejected as prior art in that regional northern district of california case we think  that was not an objective reliance on the sonic reference but i let me try to clarify maybe i'm thinking too much in the in the halo terms let's assume for purposes of this question that the only invalidity argument is the one that judge welcome to greet with is there record material in this case that says this she i had in mind at that time of the alleged infringement that judge wilkins theory of invalidity there's nothing in this record to support th had had an opinion of counsel or anything else at that point in time at the time a lawsuit was filed and i guess that would be you know from looking at the subjective prong versus the objective prong i think that would be that our understanding of the record  we recognize that the supreme court may or may not change the test and we would respectfully request that the court hold its decision in this case until the supreme court rules and then if there is a change reversion remand and let the district court decide the issue on a more developed record i do want to point out on the interest patient front that there are a few things in this record given that it went through two trials that were necessarily in the use a record that we believe further compel the result that the ads are valid as a matter of well over the summit reference first the expert for texas instruments in this case testified at length a trial that he understood reading the patent reading the claim language that the claim language required the ability to store the data of the right so he understood that  testimony at trial was that it had a story maximum size internet for amos fifteen hundred by either net for him we disagreed the jury came back on the infringement side in our favor but but the point is that  understood the claim language to require the storage of an internet frame that that record difference between the two cases the california case and this case would not right make a difference have two different district courts actually three different district courts reaching two different results to went our way one did not under the two cases that are pending we're looking at it one going our way one that did not the record in the texas instruments case was cited to judge wilkens in the summary judgment briefing although she didn't consider it in her opinion she was advised of the fact both the defense and us the pla the defense dr wesley came in to testify and he admitted a couple of things that we think are credible first he admitted that sonic does not contain a transmit data buffer and that's straight out of the summary of invention if the shoe were on the other contain transmit data buffer importantly he admitted that the way the sonic was described in the specification of the patent was accurate he agreed so whether they dish it was before the patent examiner we don't think it's material arguments from the earlier case that's correct and supplement i believe has been that supplements if you're honest you have a plenary review of the validity issue and we believe we should have been granted judgment as a matter of law on the validity issue in texas as well and if that had been granted we would have been here the only the last thing i'll say is this court has decided in several cases that a question of whether  quarter of our viewers if we had just filed the texas instruments case and this court came down and said no the patents are invalid unquestionably the issue preclusion would apply the distinction here is that the texas court reached a final judgment issued a final judgment in our favor prior to the issue it's different from mendenhall or you just think mendenhall doesn't harbor green judgment there was a judgement finding validity which was on appeal when this court decided the cedar rapids case in the same date site decided cedar rapids and held that invalid it  and then in the mendenhall case applied collateral estoppel to the barber green judgement so in this case i think we're squarely within sovereign software mendenhall in the cases which have set as long as  and you would be in the same situation as you were in mendenhall where you do not now face the issue which you didn't face in mendenhall and you would not face now what do you do about predicating collateral estoppel on a judgement which might be modified circuit i think as this court said in pharmacy and in soldering there is a dividing line between when the court applies its law and region when you apply regional circuit law and as pharmacy a said footnote four and as you said soldering you look to regional circuit law for the general principles of class apply collateral stop was the issue identical was it necessary to the judgment was it actually litigated and other special circumstances once you find that type of judgment the court has said that the application that a blunder time and i think this is the import of mendenhall and soldering in those cases then becomes a question for this court the the test that you would look to the fifth circuit for here would be is the acer judgment sufficiently final that it actually litigate the issue is the issue identical and other special circumstances which us is not raised here that would say ok the acer judgment is want on which you can predicate collateral estoppel now you look to york law mendenhall is is applying collateral estoppel fairly late the process with district court litigation but i think your cases draw dividing line and i think we're squarely within the application of blinder given the ace judgement meets the requirements for applying collateral stop if you were to vacate if you were to reverse acer i think the action here would be to vacate the judgment and remain for this reason there were pending j malls which have issues which we could not appeal by way of cross appeal because it would not have expanded the relief we would yet but such issues as marking were being i mean you might not have been able to cross appeal to me you could have argued about them as alternative grounds in defense of the judgement and it would not have been a defense on the in the validity issue it was a damage issue marking which would be relevant if we go back anyway that's that's my position as to what the court should do and of course we don't know if you were to reverse a sir on what grounds you would reverse a search there was also a new trial motion pending whether it works but our view is that you should  and if you were to reverse acer for the court to take whatever steps are necessary in light of what this court would do and to reach the issue can you just clarify for me if in what's the status of the on one fork patent in this on the first day of the infringement trial based on the judicial stop a ruling they they withdrew the eight seven four ad and they dropped the zero ninth work that they just withdrew it and it didn't go to the jury case judge will can accept it was it at the time of intrenchments or later or what it was later there were i don't believe the precise timing of that was really developed in the record given what the state of the case law was but i believe it's accurate to say that there was no evidence that at the time of first for enjoyment they had in mind the national semiconductor part now on the on the claim for instruction issued and i think mr stevens adequately covered most of the points but i would like to make one point about our record which is different you've heard in the opening brief here u s c i relied on the means for early transmission claim to support its notion that the buffer memory had to be a minimum size youthen that frank in applied brief they now rely on buffer memory for the storage of data of frames for transmission to to have this retainer retransmit and to me retainer retransmit or successfully transmitting which is the same thing they're trying to impress in a claim term in order to support the notion specifically told that court the district court in texas that retain and transmit was not a requirement of the claim and that is it appendix ten seventy nine and they were talking at ten seventy nine about th the frame had been transmitted in order to enable retransmission they then i'm going to lips that some some of it said in short the california court found that the ability to retain a frame of data for retransmission is not required element of the claims of the eighty seven through only ninth war this is supported by the specification which states that this capability may be a benefit of the type of offer claimed in the patents but it is not a requirement the entire thrust of the argument they have made to this court is it because  or retaining inch retransmitting is a requirement of the claim sonic cannot anticipate and they disclaim that to the court below on the issue of whether this claim these claims are limited ether net i think if we look at the patent particularly in the overview section of st a five there is no reference in describing the overview of the invention of the ether net the transmission medium forty two in  described generically as a network transmission medium this claim was drafted to cover not only ether net but other forms of interest transmission mediums which transmitted information over a network medium and the proof of that is that the examiner saw it the same way if you look at the for mn reference it was a fiberoptic reference and if you look at the specification and figure two in that pat remembering that a byte is eight bits you will come to the conclusion that the examiner believed that the buffer memory in the claims was one that only had to store potentially on the order of twenty five bytes of information if it was a fiberoptic us yes i did not distinguish it on the basis of the size of the buffer memory they distinguish cruise min are other grounds so when we look at the claim the claim simply says buffer memory there is no dispute in this record that the sonic reference has a buffer memory which meet the claim limitations a memory for the temporary storage of data and the sonic reference in the fife host stores the data and then  more importantly they ignore the clean language the clean language expressly requires storing data transfer data of frames for transmission you want to say a word about what's at page ten seventy nine  not store with at least thirty two bytes it has that has a thirty two byte but it's not stored if if there is a transmission error it keep you can't go within the sonic to get the da and it does have a right undisputedly is right the feature that says it gets to specify how much of the data that's coming in the entrance should come in before we exit before we send any of it out correct so i mean let's say it does thirteen bouts as searching bytes are going to be in that office right in sonic it would be like a garden hose they would go through the buffer yeah but but short stories maybe but story but the point is once you start transmission once the first light leaves the sonic if there is an error it's not there for retransmission that's gone it's not stuart that's the critical distinction th advantage it's not that then the claim was the clang one which requires storing for transmission and the point is every proceeded with the one exception who's read this atm comes to the same conclusion that has to be part of the transmit already on it's way well it's parked in the sense that it's it's it's within the buffer it's not parked in the sense that it could be retrieved from the device the host has the memory