that there is material specifically the district court's opinion that in the joint appendix has a large segments that are marked as his confidential letter in the internal to the blue brief it's not marke specifically material for two but i suspect most of it relates to microsoft information i call it can correct me if i'm wrong so perhaps it's something he should opinion without talking about that at least with respect to the portion of the issue because that's sort of the core of the question is do we can we treat those as not confidential i think it would be appropriate to treat that is not confidential so long  future course of this case cannot stand as a result several fundamental errors but before you get into the details i'd like to get a sense of how this plays out if we do anything other than either reverse across the board or for example we were to say the court was wrong about the immersion suneet license and roam about saying that the licenses other licenses could not be considered for purposes of determining whether running royalty or a lump sum was the typical licensing system for microsoft in this context but we were to agree with the apple lease with respect to the portion that offer of judgement if i recall it would be your order make it significantly difficult for us to put on a full damages but bananas and i'm trying to get the answers to what's the consequence from my perspective does that result in  on that if you disagree then i believe what ought to occur is that there should be a re man to the district court to make to allow mr ruddock to make the proper port and would you think that would be true if we agree with the apple is on all three questions yes so no matter what happens here there's no way for there to be any firms no i think there should be informants in the problem is with from our perspective if you look at the facts of this case both of those issues should be reverse so there are really three issues as i mentioned in this report sort of that exclude the entire damages report of mr braddock first was the finding that this only immersion licenses were not minimally signed technically comparable the second was the finding that  portion properly and the third was the finding that mr braddock applied in correct form of royalty with respect to the person as the minimal comparability of the sony immersion license as the disc or concluded they did not meet the minimum standard technical  r ryan's opening expert opinion paragraphs three zero five three twenty one ok so he started spinning with respect to comparability by looking at what is the technology of seven three five and he went through a technologies which enhanced gameplay by providing improvements related specifically to game control during play and then he went on to further break down his analysis by reasoning and reasoning in reaching that conclusion paragraph thirteen three thirteen he analyzed version packs themselves and noted they cover sony products in that case he then went on to look at sony products he looked at the expert witness report in the sony case to determine what those products were and how they function the issue with the whole order with respect to the comparability issue the court in the order below it appears never looked at because there's no specific indication in the order that it looked at dr ryan's methodology and made a determination about whether his methodology was reasonable or not and reliable or not doesn't look at dr ryan's methodology it goes straight to factual conclusions that this report said here's what the zero seven three pattern relates to here's what the  is making the determination of this ability of evidence least in many cases who the court is necessarily going to be making factual findings absolutely so i mean so that the fact that the court is making findings in effect that this is outside the reach that would be permitted for an expert that's fine doesn't it self mean that she's wrong i suspect there's there's clear sort of two ways to define findings in that in answer to that question there  factual findings as to what dr ryan did what did he look at you know and and how did he make his analysis there are factual findings as to what he did and that goes to what his methodology was and if it was proper it's proper that that  opinion should be admissible but making findings of fact in the case such as the zero seven three patent technology is limited solely to an input device a fact which is hotly contested in this case mr dr ryan clearly says that's not the case so that is a factual finding that is not proper for the court to make when it's looking solely at whether his methodology was proper that is if that's a fact for the jury to decide when it's put on before the jury is that is the technology zero seven the conclusion of the expert is so wildly on acceptable it's very likely his or her methodology was not acceptable either you know but with it with it's always appropriate for the court to function it should focus on the methodology and not the ultimate conclusion with the ultimate conclusion even if the methodology is correct the court can still say the ultimate conclusion is just it's just not plausible isn't that  gate keeping function as well well not simply saying it was anything on the boxes that you came up with a result i suppose it would be on a case by case basis your honor if it if it's once the once the expert meets the minimum standard by reliable methodology and his or her opinion it ought to be an issue for the jury to decide now you know if it is such a wild conclusion that the judge who is deciding in his or her gatekeeping function that well i can't see how any theories going to believe this opinion then maybe that opinion ought to be tested by vigorous cross examination or contrary evidence being submitted by the party posing party or even if necessary an instruction to the j so to take your argument to its limits if i use proper methodology and then i conclude that the sky is green not blue well sure ok that might be a situation where you would have to say maybe this person isn't qualified as an expert not that they did you know come to them or you know use the problem at all as you but that's not the case here i mean it's clear from dr raj report that he used as he was he was qualified as an expert he was not challenged as an expert is his his opinion was not underdog motion his opinions when challenged was not challenged during his deposition and he he he up in seventeen some odd paragraphs of his expert court he went through a significant analysis of both the patented technology the patents and some of the emerging case and products in the sony emergent case and he came to a detailed description of why he found that they were comparable and that's appropriate for consideration by the jury well he said t he has not been successful in and licensing the patent then then it the field the field of what's comparable licenses is going to be a little bit less popular doesn't mean you have to actually get keeping function and allow anything and but it does mean that you should be as patented you should not be punished by the fact that this isn't a unique invention that is new to a field that is a new application and that there aren't many you know the the yes and dr ryan did not consider the microsoft immersion settlement yes it's more comparable that's correct honor because that settlement related to a number of other things besides just the patent technology occurred this was a settlement it was a settlement to get microsoft out of the case and so the conditions under that settlement gave a benefit to immersion that they might not have identifying nineteen components out of a total of thirty in the x box three sixty the consul itself ok he identified twenty out of thirty four components in the x box one which is the second generation of that a total of thirty nine out of sixty four that are needed to comprise the apparatus claimed in the zero seven three pattern so this case is very different from cases where for example a party uses the entire value of the product you know the  the infringement here occurs when microsoft combines a console a connect and a game that's the infringing apparatus all of those are required to practicing for the apparatus and in this case because this is an apparatus cla zinc or selling of that apparatus is an infringement that doesn't go to the issue of end user if joe gamer uses it in his living room once that sale is made the statute says make use or sell once that sale is made that's infringing apparatus so all of those components are part of the infringement but mr mr braddock went further he didn't say well i'm just going to take the entire value of the x box consul like in the the i phone case where the witness said i'm going to i'm going to the actual witness that i'm going to use the entire value of the i phone mr braddock went inside the consul even though microsoft doesn't sell subcomponents they only sell the console as a whole he went inside the console and said i'm going to take out with help from dr ryan's analysis those elements that don't aren't necessary for practicing the patent invention and he removed those and that was the apportionment that he did so he clearly apportioned far enough in this case down to his foreheads he could to get to the valuable over the basics of what is the what are the components that are necessary to practice the path of invention and that was appropriate and that's where he came up with the eighty nine percent of the ninety three percent correct or do you think it is reasonable to say that the value of the facial recognition is ninety percent that you the x box well that's your honor would be a question for the rate not necessarily the case so if he's a portion or sporadic is a portion as far as is required by the law and in fact further in this case we would contend once he reaches that base then the issue becomes when using that base you can at the value and there can be testimony as to what the value of facial recognition is in the pews products and you can adjust the rate accordingly to get to the value of what facial recognition is an invention that's come whether they were comparable or or or or or any of that but simply to see what their licensing sort of policy practice was and he came to the conclusion that looking at those twenty three twenty five licenses that the proper role of the structure in was not proper under guard in either one of those independently would lead to in the firm's or what i what about his argument that if for example he should prevail on any of these issues that he should have a real man let's say in the district court even after i v s and mr braddock saw miss davis rebuttal report and he put in a supplemental damages report he did not alter or change his analysis in any way so we think it will be page thirty one he says based on his long term multi system experience as a gamer he believes that the sony emersion agreement and the i v s patent comparable and that in another self your honor is something that we needed to multiply the actual compulsory license that the district court order in the sony immersion case by three the record is clear that the actual compulsory license that the district court of war did in that case after believe that this is several times more valuable he couldn't say you couldn't put a finer point on that and so what mr braddock did was to see they say well several means more than two so i'm simply going to multiply that number by three and come up with these four point one one percent will teach rate and so forth for that reason alone these are the agreement between sony and emerging is not a comparable it's for the position that were issued in the sony immersion case didn't have to do with biometric identification at all it didn't have to do with facial recognition at all they had to do with a controller that you use that provided haptic feedback and so the connection was drawing here that both of these technologies and patents related to game play in video games really is akin to what we saw loosen in which the expert improperly said well the patents are comparable simply recognition she said that was comparable but none of the four patents that were at issue in the microsoft licenses that ms davis relied on in the model which there's no dispute related to the specific accused  look at the sony emersion agreement and mr braddock in consultation with dr brunson dry and decided that that was the agreement that allowed them to take the position that they be at this technology was worth far more than it actually technology was comparable to the license that would have been far more comparable under this court's precedent would have been the settlement agreement that microsoft and immersion injured in to  because he said there were other factors involved but it can't be the case that the technology itself is comparable and yet a court imposed compulsory forward looking license after a jury verdict against another party accusing another system is more comparable then an analysis that took place of a negotiation between the microsoft in this case the very party that would have been involved in the   there are still a fundamental problem and that is that radek did not the portion properly i took note to write down the cases that my colleague mentioned when he was stating that mr braddock had done the appropriate analysis and i heard him mention some of the earlier cases from the sports jurisprudence but i didn't hear image informatics and i didn't hear him mention erickson and those are two of the more recent cases in which this court has said very clearly that often times it's not enough to simply identify the smallest saleable patent pricing unit and to ascribe value to that to do a proper question and this case is a classic example of why required to allegedly practice the accused the alleged invention and then mr bragg took a percentage of that based on the cost and applied that to the actual sales price of those components and he stopped there he didn't do anything further and this is a case in which he was required to do something for it wasn't enough to do what he did because as you noted judge price and that essentially suggests that the entirety of th components find their worth find their value in the claimed invention here and we know that that can't be the case because in this specific case even dr brad ashi dr wind took the position that not all  example winning when someone can jump in and jump out of gameplay and facial recognition issues but those were activities in which facial recognition was not accused of infringement it was only what's called session ideality which is the actual game option to purchase a device or again that has facial recognition versus one that doesn't is that the case or if they're not intended for such options available in any of these products i'm not sure that i made the mistake  except for the kinect to to play games and to you know provide user enjoin there's a difference in the price actually and there's a difference in the price and then when the experts warn him on the market that that is a system that also where you can play games that don't use the facial recognition technology mr braddock made no effort to carve out or to call out from his so called apportioned walty base those instances in which facial recognition is not being used at all whether the microsoft licenses that running royalty rates as opposed to lump sum payments were admissible not for the amount of the license or surrounding royalties as a post to a fixed amount why isn't that a reasonable piece of evidence for the jury to have so in some circumstances your honor it may be that that would be relevant it might be that it's  but i think one of the threshold questions is whether it is appropriate for an expert to rely on those informing his opinion and given that mr braddock took the express position that none of those licenses was a comparable not a single one of them was a comparable then we believe it was inappropriate and improper under guard for him to rely on those licenses for any purpose have if i may work backwards from the issues that mr my colleague raised the important thing to keep in mind here is that ideas accused only those systems which include all the infringing the combination ok mr davis is correct prior to the advent of the connect the introduction of the connect there were exploits three sixty consuls on the market they are not accused of infringement however when explain the connect was introduced and it was sold bundled with the game and a party who plot that individually bundled with the game could then upgrade the all x box with nukes and the software in the game would upgraded to allow that old console to use the connect and play it connect game second thing is i d s is only accused connect games as infringing only want to connect game is sold used with versus the exploits with connect the latter was not ten times as expensive form which and therefore it doesn't sound like the ninety percent figure that you used as a basis really much of not suggesting that no what i'm suggesting is once you apportion to that point then when you go to the issue of value it's handled by the rate not by the porsche by the base that's where the balance comes from so the s know all consuls or are accusing freshman in this case is not correct and that in the real problem here is this the real problem here is this is the definition of use because the op police would say in order to infringe there has to be a person plugging a game into a console and using the connect to play the connect game end during that kinect game sometimes facial recognition is used and sometimes it's not that is not the requirement here that is a method cl if there is a method claimed that might be the case this is not a method claim this is an apparatus claim and so once the combination of elements of soul a console the connect and a connect game not a game that doesn't use connect but a connecting those that combination is infringing combination and once it is sold microphone microsoft gets the value of that infringement done they take the money home it doesn't matter if somebody  leaves it in a box or opens it and starts playing it on christmas morning it's still an infringement regardless of how often to choose and that's the important point you see it's not relevant here it's the making using or selling