this morning first in number two thousand and twelve one two three seven x central against staples issues raised in the cross appeal less of course the court has other plans for me but that there are far too many issues that we're going to reach everything so i trust that the court will direct me if there's anything in particular that that is of interest  argument you're not suggesting that every claim in the patent is limited to automatic you're suggesting that the word movable is the reason that the limitation limited to automatic because the definition of moveable should include automatic  if yes if the if you if you're not looking at this kind twenty in the context of an auto reject taper like i just showed you then that claim is meaningless it doesn't claim anything if you're not looking at it in the context of a stapler that has an auto reject feature and if you look at the if you look at the claim language it starts with when you say it doesn't claim anything i mean it it has several limitations one of that relates to any of the things that the specifications described as being a feature of the invention if you look through the through the specifications it talks about the invention being i mean if you start at the first stage of the abstract it says it's an automatic opening process right and then you get discussed to some other features that are related to that are also related to the invention and those other features are it talks about lateral positioning of the stapler track over the base of the safe or that is it's the lateral stability it talks about non straight bottom edge of the striker and it talks about staple exit ribs those are the things that it says are inventive in the in the in the in the invention none of those things has anything to do with the surrounding the side walls that surround the staple track in the close position so if you take out the automatic ejection feature  that the actual limitations that are in claim twenty don't bear any relationship you can read the specification you know i've read it many times and it doesn't it doesn't relate to any of the features that the patent claims are inventive and in fact even further than that the experts at trial including at center the trial agreed that if you if you if you don't look at it in the context of an automatic ejection then everything other than the side walls that surround the rear of the staple track are in the prior art so then the issue is is that an invention i mean it's not mentioned anywhere in the specification it's ascribed no inventive features in the specifications and it's  ot you know it's again so what is the invention if you don't if you're not looking at it in the context of of automatic opening and again to look at the language of claim twenty it starts with the track assembly just as that the bottom of the body exposed to the outside world so although no terms and i just simply parroting your opposing counsel sure but i want to hear your answer to the difference between the language of cl clean twenty is is moved reroute away and is movable moved suggests action that occurs without intervention of a third party or another par my fingers then claim fifteen if you're really talking about language differentiation but but also the movable it's describing a slightly different piece of the structure of the track guide right so the claim twenty position where it's enclosed by the side wall and and it says and move the ball to extend rearward from the body in the open position so moveables so as to access rearward from the body in the opening open position so i think the language is different because i'm talking about how the track poll was is attached basically to the to the body of the state or such that it is moved so that it slides and moves such that when it's in the open position  extends so in terms of the actual language i don't think there is i don't see a distinction frankly i mean it's a different verb tense of the word move but neither one of them explicitly said neither one ha use that i again it says is moved so if you're looking at the language differentiation argument of my my opponent twenty one techs up is moved which is you know sounds like it is moved when it's toward the back side with you so if you believe that there is a significant difference between the use of the words is moot and the worst use of the word moveable which i would suggest in the context of talking about the same thing but just a different structure i agree with your honor that twenty one then says it is partially exposed when the track assembly is move your words so it's again i i would submit that what we're not doing here is reading limitations that second did did we start it fifteen minutes so right now we've run through i guess the initial eight minute period right i think we're go  right now you will have already used up what your initial argument time was and your vote really only hit one issue so you know so let's why don't we move along with this you have more on notice that that's fine you're on but while keeping an eye on the clock you should be conscious that we will give you some extra time so rigidly and strict we briefed and i think our brief covers pretty well the claim construction issues of what's inside will what's around we'll stand on our brief i mean again if you look at the figures and in the seven six eight patent they all show a structure that i think like this where this wall goes around the back and surrounds we submit that's what the proper kind construction ought to make it look like the judge is going construction  eight there was actually and there is we think it all but i mean i'm sorry i should say it this way if you are right on your claim construction and there's no validity challenge because you don't kno your devices infringed is that right that's correct and your position is if you're wrong on your claim construction then you think there's any problem we believe that it was that if you take out the auto injector feature that's what we think and then if in the past the fact that he that if you take that away then the only thing that is arguably inventive is putting it however you define it this sidewalk across the back which would be obvious to one of our ears are yeah yeah yeah structures of the the patented structures with the structure of the excuse device what what and we've included in the appendix the entirety of the testimony of both of the technical experts and the animations that show how these things work it's all there what what mr novak did was essentially described the structures in the the patent in the patent the ones that the judge included in the claims instruction you described them and how they work and notably he also described something he called some variance of those from the specification but then he described how the accused device works and then he said in my opinion the obviously very shortened form of it but if you read the testimony i think you'll agree it's a fair summary so he described how the how the what claim to basically structure claims to meet the function he described the structure in the accused divisiveness as their equivalent that's just simply not enough there's case law cited in our priest that says there has to be an explanation of why one of ordinary skill in the art would consider them equivalent and there isn't any the only evidence on that was actually offered by our expert who's defense expert who said that it was they would they would not be considered equivalent in the eyes of one of ordinary skill in the art it's it's you know so so what the jury is left with is sort of these two structural descriptions of two structures a blanket opinion that there was one and they have to go out and kind of figure out for themselves how one of word there is still in the are we can consider these equivalent it's simply not enough this court has has taken a step in the context of doctrine of was once to say that they need that there needs to be particularized testimony and linking argument i know that that was not yet been ended two one twelve paragraph six equals one in this circumstance i don't know it wouldn't be frankly because the function is by definition the same since the since it's a means for hunch and limitation and i think all the reasons the court has found that that that such testimony is necessary in a doctrine or doctrine of equivalent  appears to be a relatively detail discussion of the three different staplers going through talking about exactly how they operate and the la explaining that they work in the same way as the patented disclosure so i i don't see that it's the kind of cursory these two things are equivalent with the wave of the hand that we've said isn't enough what's what i think he in the art would consider finding motion across a defined track to be equivalent to a pivoting motion of the figure nine because of this and he said those exact words find them to be the same and all together i guess and this is why is this the part that i was trying to tease apart as you say what was missing was he didn't say that a person of ordinary skill in the art given what i've just described as to structure and the patent structure would find them equivalent that the first question is is that enough and if not what more would he be required to say i think he i think he'd be required to say more and i think he would be required to say sort of ply and engineer one of ordinary skill in the art would think that if that that these mechanisms if you look at the animations the way they work they work very differently and i think that he was required to say to explain why despite the fact that there are two pieces and they move in opposite directions and you know all of the obvious differences when you look at how they work i think he was obligated to say this is why i want to  ordinary skill in the art would look at the accused device and know that it is excluded because of the patented device because otherwise i think you're putting the jury in the position of trying to figure out what one of ordinary skill in the art would think were the own thinking there's another issue with the six one two patent that will touch on briefly the claim construction we believe should have required that the stapler have staples in it because of the way the to spend a lot of time on this then i won't thank you number of times by either of the experts we put in an expert who came in with a damaged figure of several hundred thousand dollars the plaintiff had a damages expert who came in with a figure of one point six seven million the jury came in with two point two so the initial question was what do you do with  x you know and i i think the cases are pretty clear and i'm not i don't think center actually disagrees that a jury is free to pick a number somewhere between what we call the goalposts you know if there's an intermediate figure they don't have to pick the number that either expert opines to but they have to you know they have to come in somewhere in the middle so first what judge what the district court did was correct she said and we have to then bring the number of weeks down to the highest number that was in front of the jury so she got from two point  one point six correct then but then she looked and focused on something that we had been arguing we've been arguing since two thousand i believe that the plaintiff damages expert had not sufficiently tied his opinion of royalty to the to the footprint of the patented inventions in the marketplace and he just didn't i mean we filed a motion and lemony and we argued about it this was this was a long running issue and the district court i think and over backwards and allowed the expert to testify i think you should i think you should have been eliminated as an emotional limb i mean i don't think you can just say i'm looking at these three patents together and i say it's ten percent but so after i mean look you know in the vast majority of place and seeing cases when a company has a portfolio of patents any one of which would cover all any product that's on the market it's using the technology it's quite common to license support folio i mean that's the way you do it right you'd be remiss if you went in an opinion which seems to me to be consistent with common licensing that there are obviously lots of licenses where people license whole portfolio is a patent but this is a situation where any one of the inventions could have been limited from the state or and you still have a stapler i mean the safety mechanism is the clearest example because in fact eccentrics on thousands of them without a safety mechanism so i don't think you can just say you would have had to license all three of them my guess as to the rationale licensing a portfolio and therefore i don't have to actually explain what value there is in a safety mechanism i think i think he was them but i think he was compelled to he has to say there's a safety mechanism and in fact you know he he was aware that a bunch of them thousands of them have been sold without a safety mechanism didn't take that into account and made no effort to say here's the extent to which i think the safety mechanism either drives the sales of the stapler or contributes to the value of the stapler and what wasn't clear to me on the record but maybe you can clarify this for me was whether the thousands that had been sold without the safety mechanism allow him to testify her objection that she allowed him but then the problem that we had foreshadowed several times what happens if one of the patents is either invalid or not infringed and what do you do some testimony and that came to pass on the seven zero nine was found to be indefinite and then judge the district court was faced with a the damages expert who said i can't separate them out i've made no effort to separate them out i have no opinion what the royalty would be for fewer than all three of them i have no opinion i don't know what opinion you know i have no opinion if one of their was infringed so then the district court is faced with a situation where she has found the seven to nine to be invalid and what does she do with this damage number one the one point six seven million and she correctly found that that the plaintiff's expert testimony no longer supported the jury were because he had provided the jury with no way to allocate the record because you will have provided the court with a way to apportion your expert was very detailed and right is a portion right and that's what i was records or did it so maybe maybe they would have really been a bad place if they had jury effectively it doesn't support the jury he didn't allocate he didn't do anything he gave a lump sum number once you find that that basically unhelpful to the analysis should be stricken it should have been and not entity after that his number of ten percent forced through repat means once you only have two infringed is useless affectively i mean it's a non issue it's a non helpful number and to then you say it doesn't support the jury's verdict but i nevertheless going to use it and do my own calculation using the allocation that the other expert used i think it's wrong i don't think you can repair the testimony of an expert who has failed to provide the the the  detailed application they need to do and say well what i'm going to pick and choose when to take the application by the other expert apply it to his number i don't i don't see i haven't found anything in the case law that allows that i  lead to court every first like to try to address a couple of the issues that the court was just discussing you know try to work backwards and then no approach on the issues that were associated with o with respect to the damages question think judge moore is exactly right not only is it standard practice import to license portfolios with a single royalty number remember we're analyzing a hypothetical royalty negotiation in this particular case second exactly what happened to there's testimony in the record we cited in our brief that in this particular case work tools who is the owner of the patent don't have the exclusive  vision that a different question from the question that you faced with damages of what happens to a damages award when one or two of three patents that are in  is later found to be enough it seems to me that that doesn't necessarily all that question by simply saying well they may have wanted to have a single royalty for the entire book  i think about seriously it mildly reference there was obscure but what i think he testified in this essence that each asserted patented supporter rate of ten percent on its own yes a way of saying that there's that the separate royalty rate of ten percent is applicable to each exactly so that is what you're saying yes what that's what i was saying yes and that's so you know we're the that's not what he was saying well i again i think his testimony is because he did refer well there's testimony of mr goldstein who testified back and this might have been where they've been misled haitian occurred he testified that they are they would pay they would be paid by a sentra the same royalty whether whether the center was using one patent to patent three never go ahead ok i thought we cited to that that portion of the record so so i guess the point is in this particular case standard industry practice was in fact followed and the the basis for the the license from the past known or to center of was that there would be a specific royalty rather there was one two three patents because it was a portfolio license and that was the approach that the experts look because that was the facts of this case and he based that on he based that fact on his analysis of how the hypothetical negotiation proceed that that's the basis for the the the royalty that a center pays so that's what they would demand in a hypothetical negotiation i think the jury was entitled to take that testimony and and based on that testimony they did hit between the goalposts they essentially said each patent is five percent and i think there's substantial evidence for that and that the jury doesn't have to take as i understand  but the jury specifically said we're awarding this one a reasonable royalty in the numbers come out to five percent for each patent which is between what they say the royalty should be and what our experts have their own unit for the rest of the world to should be five percent per pet very well again he said ten percent for three but the testimony is that it would be that amount whether there was one two oh my goodness well but again you're circling back to saying that he testified it would be that amount whether it was one two or three and that's that the case is on point or to prevent juries from going wildly a strength in their own valuation of what would happen in hypothetical negotiation it's hard to say that that happened here the numbers are all very close and it's hard to say that they w don't see that not only do i not see that the claim i don't think the claims indefinite but i don't think that it suggests the possibility of two different measurement possibilities because the claim itself expressly says toward points on the top of the stapler relative to the base toward the base because vertical is toward the base but point to point actually doesn't at all measure what the change is relative to the base measures with the changes with what could help your understanding your honour's looking at the words of a claim to explain requires measuring and this is important the distance through which that point moves as the handle is moved from its rest position to its previous positions when you emphasize that what the claim requires is following the distance that the point moves point nine to one inch conclusive towards the banks now that could be that could mean that the vectors of vertical vector is point nine to point to one inch it seems to me that moving travel that this is a lot easier case for us those words appear you think the family do not but i guess what i'm saying is i'm using the word travel kind of it just as a different word to highlight that with the claim is and there's testimony on this from our expert who submitted an affidavit post trial but that the requirement of the claim for the movement of the handle is really requirement focusing on the the extent of movement that's the that for for any given point assuming that the point that has to also be a pressing area near the front of the handle will the stables by definition are on a pivot point technically the arc is the precise exact distance that any point on the handle is going to move as the handle travels what our expert testif that is that a person's field of the arc given these things would get would use a straight line distance because that approximates at the station a little technology and there just that a lot of for tractor and try and figure out exactly exactly was i guess why you're fighting me on the vertical vertical means you get infringement on all the devices as noticed it so what why why doesn't it when it says toward the base i don't see how point the point is a measurement toward the base as opposed to a measurement of its own movement because i guess here's here's an analogy i think that helps me understand if if the claim had said the distance you travel going from new york to chicago it would be like saying included as you get to chicago you're going up one hundred feet but to say that you've traveled one hundred four then you just rolled up vertical then you just said the girl not the component in other words when you go from new york to chicago you're going up  which is clearly just a component of the travel you're not getting it's not what the claim sent the claim said travel now actually to new york chicago is also a good analogy because there's an arc there ok but that ok and this goes to my one of my errors is he was testifying based upon the claim construction he had already seen received from the judge the judge had told him you have no choice but when you analyze this claim you have to measure to distances and then decide which of those pricing areas is bigger and that's and that came from staples so why didn't you appeal claim construction or do you feel like you did in the course of it we appealed at the appropriate time i don't think we have a basis for appealing at all and do you believe you're appealing claim construction to the point where i i don't read your brief is arguing for me to point to point is the one and only measurement system that should have worked  once you accept that then the claim is not and i don't see your face is making that argument which is what your mike you're saying right now well i guess my first the first part of my now is that the claim is definite there's really no ambiguity in the claim as i said before telling the claims when you measure the distance from the point moves from one to the other that is not ambiguous the ambiguity the so any indefiniteness that's found is because  adopting this alternative measurement construction which it in our case as you said it it turned out we we were successful anyway but to then use the testimony of our expert after he's been told this is the appropriate way to construe the claim he says yes this is legitimate but if we agree with the district court judge that a claim is indefinite if there are two different ways to conduct the measurement one of which results in infringement one of which was to claim construction because the district court focussed on two measurement systems is wrong it should have been a single measurement system point the point and then there could be no indefiniteness argument yes i think what we've said is that is it is exactly that mistake if the claim is indefinite we win even with the indefinite the indefinite if brought into it but but there is only one claim construction that that that in of the claim doesn't have to be construed but there's only one way to measure and our position is that staples can now try to you know go back on two years of litigation and say that claim construction that they proposed is somehow renders all of that meaningless at that that that they're stuck with the result they got with the claim construction even though we think it's wrong what do you think is the right construction pressing area press here is i think the district court properly construed the term pressing area it's the area that incorporating the point nine four one inch as part of the definition of pressing area that well me is a little unusual i don't think you did that well i mean i guess i guess of the claims to be satisfied that the pressing area has to move that distance which of course is what the point yes yes that's not the same to saying what is the definition of pressing i mean it and others we don't usually define terms within the claim by saying this is the definition of this term is whatever makes this term satisfy the requirements of what that's correct so what is pressing area by itself so a pressing area is the area that on that handle that the user would normally apply pressure to operate the stapler that's what i think the district court said and that's what all right and and what constitutes being near the end of the handle ok and there's there's testimony in the record of on that distance and the invention is is very precisely described and the fact of the matter is the there are the overall prioritizes that spring powered staples weren't used  we're going to this is what i want to get from you and i can it is so my idea of what you would say is a pressing area that's outside of the scope of the claim because it's not clear to the end this is the end it's not near the front near the front so yes there's if i had a pressing area which is defined as a pressing area according to the judge's definition that is an area in which you have the distance between point nine point  indefiniteness you have the option of affirming obviousness and they lay out a case for why the seven zero nine patent is alternatively obvious you completely fail to respond to that argument in your very so i'm not sure what to do about that because they if i if i look at their argument has any merit at all to it you've conceded it by not responding to it well we didn't concede your arms when you do because guess what failure to respond to an argument no brief is a concession what i don't think that they came anywhere close to establishing their burden on appeal for that in other words is we have a jury verdict now that says they didn't satisfy their burden of showing that all the factual issues resolved in favor of the patentability physician probably would have helped your case if you had pointed to some of those in your brief but now we're left only with the one sided version and you don't get to do it now in oral arguments into your great so so i have the benefit of there and absolutely no response by you on that point so i have to review it to know though and you better hope that's not a clerk is going to scour the record as best as the automatic track issue and the seven sixty eight yes if that clearly would be improper to incorporate people automatic track opening into then it would certainly be a strong one but it seems to me that the words are open to interpretation and once you have that then things like the differences in figure for and figure five start to be very telling peers accept that one of them has the automatic track removal and the other identified as prior art does not know that you don't think they're identical other no and the problem here is the prior art for anything  when one looks at the two figures that shows that they're not identical because i looked at them pretty carefully and i couldn't see any feature on three other than the automatic tracking removal that wasn't done for well i guess there's two things with respect to figures three and four on my contesting that those figures don't necessarily deal with automatic opening ok there are several figures in the past i'm not saying that those figures don't deal with automatic opening that's point one point too what is not shown in figure force the prior art is what is the what is behind the sidewalls you don't see that here and that's not shown and if it doesn't know the words it's not an admission of anything about what the sidewalls do with respect to the surround requirement and what i would say about the art of that quote exactly my point is the automatic opening is is shown in figures three and four but the important point here i think to take your honor is that the patent describes in fit in plain fifty the automatic opening feature very clearly and what's very important there is in order to describe the automatic opening it specify the intermediate position of the stapler and it says the that if i could borrow the sample it says that the automatic opening  that's correct that's correct but the question here is whether that's that requirement should be incorporated in the claim the claim in question doesn't say anything about an intermediate position and the pad is very clear that before the opening occurs at the intermediate position the claim only talks about the open position and the closed position and it says in the open position it's moved up whole if it's said is moved instead of the word consistent with i frankly have been you know you're trying to parse the hairs on the other hand i don't understand  it uses the term is moot but automatic opening that's describing kind fifteen is described with two essential things one in piece is moved language but also the specification of an intermediate position so  fifteen says that in the intermediate position the track poll is moved that is the automatic opening future claim twenty one it says the chamber is at least partially exposed when the track assembly is wired so it what it's saying is that it's not requiring what a magic opening but it's it's requiring that when it is moved it's exposed it's different it's ending something that's not like to make on this trip or so ago said with respect to damages whatever the the way that the calling construction happened it sort of made it at trial it focused everything down to what is the distance that we're supposed to be measuring in this  is the vertical or is it point to point and i believe that the district court the district court tried very hard to construe these claims we had rolling kind construction we had briefing it was should really put a lot of effort into it and i think that's a testament to the fact that they're not very easy to strip but so at trial it boiled down to the way her claim construction was you measure the spot vertically you measure for design only or i mean point the point you take whichever measurement creates the smalle you know distance between them and that's the pressing area and it became obvious the trial that that was that that didn't work that the experts couldn't tell which measurement had the smallest pressing area because the numbers come out to be so close they're so that if you have two possible ways of measuring and they produce infinitesimal differences that that is not enough to support well would you agree no because in certain circumstances for instance that summary judgment the reason we lost on summary judgment was because the difference in the measurement was enough to be outcome determinative the accent or argue that summary judgment that it's thirty six when the appendix i think it's also not reach but the argument that it caused the district court to find that there was a question for the jury with respect to our argument that it couldn't be both infringed and valid because the easy shot measures almost exactly the same way as the c x the response was that well you have to use a vertical measurement for the c x and the point to point measurement for the easy shot and if you mix match then there's enough of a difference that there might be a factual question as to whether what the other front and the other is so in it sounds like they're small distances because actually it's a tenth of an inch is a very small distance which is the range for the pressing area has to be near the front i would submit that these various pictures that you'll see in our brief where novak mr novak was saying that pressing areas that are basically right in the middle of the handle you say yeah that's near the front it's not near the front i mean there  should have been a construction of near the front half if if i think it's indefinite saying just near the front i don't think it does it i think that there has to be something in the specification that tells you what do you mean by near the front and by the way pressing area doesn't appear anywhere was it came down to what distance are you measuring at trial because of the claims the struction if you take a step back and look at the patent you know a little a little higher up the pressing area is not defined anywhere there's no place anywhere in the specification the only thing the specifications tells you is that in the detailed description this is column six lines fifty four fifty six it shows in the illustrated embodiment handle three moves downward at its front and about point nine inches that's the only place anywhere in the pattern or the prosecution history that there's any measure that there's any mention of where to measure what to measure anything so so you have this in the claim turn you have this pressing who is it on infringement or validity well it's sort of both because what we say what we argued was and we argued then before you to that it can't be both valid and infringed either it's different enough that there is a stapler let me ask the question this way is it is it the case that there is one of the accused or more that would not fall within the scope of the claim if you define the pressing area let's defined as i understand argument today to mean the front half of the hand right now you may find that a very attractive concession if it's a concession because although it may not help you very french that may be very helpful to you  what what i want to focus on right now is does that definition of pressing urea bring all of you cutest devices within the scope of the cli well then that that's a fact to which measurement are we using the but does it with respect to only one of the measurements are does it with respect on some of them it does a lot of really i mean you yes no matter where you put that pressing area that sche wald difference in the measurements is going one more piece of what makes the so difficult to figure out it's what we call the gap ok say born again say fourth step a little ways off the ground right so if you look at the patent claim it says to measure somewhere in the pressing area right which is near the front in what is near well who knows but near i would say means a finger with you know the pressing area measure this as it moves toward the base there is the issue of whether that means anywhere in the path and and how you come up with that i don't know i mean to add a little bit more ambiguity if you were talking about actually in operation you have paper in here so the gap would be a variable size how far the gap is so the whole gap thing and i may have missed it in the fifteen arguments but it was that me yes oh yes we made an argument i did i have that is in our brief and it was made before and it was clearly part of a claim destruction issue so talked about measurement says that it's front end so they're measured at the front they measure and they intentionally designed it to be one point four inches outside the range of the patent but then when you if you sort of mess around with the claim to destruction and try to come up with a construction that allows you to you know go clear back to here you bring in all kinds of stuff maybe it would have been a good idea to not just the specifications but to read the claims which is not at  right but i'm just saying if you know if you had something that they might have thought would she considered that near might not be construed to mean just right right but that's why they put it built in such a big  so i'll have to look back at that i but they didn't argue that because they didn't respond to the growth of the summary judgment lotion we moved on the grounds in the summary doesn't motion i'll find it i'm sure we raised it i was very careful about that find against staples on all that indefiniteness and obviousness and everything else that you should reinstate the jury verdict that that's not an option i don't think i mean i think at the absolute worst it has to be re construed whether this court does that or whether the remand to do that would would be an option but i don't think you can go back and reinstated jury verdict based on what everybody agrees is an unworkable claim construction and again i would just submit that the indefiniteness decision should be  with the is moved language was an automatic movement since twenty one depends on claim twenty i think it's twenty one is an automatic opening so his claim twenty if you you know if you are would be possible for the dip in that i think of an automatic i think it would be possible but i don't think it would be given the language of claim twenty which is broad enough i mean which in compass is what happens when you open it and it's exposed to the rear so i would just i would look at those two together because i think they fit together real quickly on the damages you were asking about this goldstein testimony there was some testimony he was not an expert he was a what he did was he testified that there was an underlying manufacturing agreement between the inventor of the patent and the and the distributor centra and he said that eccentric had license had an exclusive worldwide license for all of the inventions that the inventor came up with that's that's what the goldstein testimony was he didn't opine about damages he wasn't identified as an expert and he was talking about how eccentric sort of had the right to be to be making these claims on behalf of the inventor we did address it in our briefs we pointed out that it's a completely different license you know that in fact this is your position i take it that there was no evidence and you know witnesses evidence on the correct breaking down the path i think that it was no evidence from the plaintiff regarding the patent bypass you know that we don't know there was none and the two point two million dollar number which i think you mentioned as being the profits number that was a number that newman testified w say on page sixty nine of our brief testimony to mr goldstein every cite to a triple zero six eighty five which is the testimony i was referring to that the testimony of mr goldstein where he testifie miss morris correct where is that in some page five eight triple zero six a five page fifty one beginning on line fo with respect to the different parties no work towards a party in this case this is this is this case he's testifying about the royalty arrangement that work tool the owner of the pat and mr goldstein is the president of work tools is received from a central based upon the sale of the staplers and he says we get five percent and it doesn't matter if they're using one of our patents two of our patents three of our position that then he says that there's a royalty due of ten percent i don't have to apportion because it's the same whether it's one patent two pounds or three patents just like the underlying agreements and my position is from that the jury could say ten percent is it is a valid royalty under mr newman's testimony for one pact and therefore they were entitled to use ten percent of the high number and the other experts number which testimony is then used by mr newman he correctly looked at the facts of this case and that was one of them is that in a hypothetical negotiation a sentra would charge staples ten percent as a but i let me try to finish the might the secrets of my logic so mr newman testimony was it would be five percent because then the center would be getting nothing from you from its diffuse it would then essentially in a hypothetical negotiation why would the center agree to it to a five percent royalty they would get no benefit so mr newman is saying a center in their hypothetical negotiation would take that same approach but boost it up to ten and then the jury's entitled to take that testimony combine it with the testimony of apportionment and come up with the five percent because five is between the range for each one my point is the jury can to pick and choose the evidence that want to use in coming up with the verbal or anything in other words you discern right and several of our cases along the same line say that you've got to raise it in fifty a and then you have to raise it after the close not just of the