at some level for purposes of the jury but it was never allowed to be shown to be always drawn physically in front of the jury in the courtroom and as he gave his testimony but not admit corrector on that drawing and signed the documentary evidence in this quiet case shows that the very same evidence that you're finessing that would that drawing aside if you can see it it should be in there  ignoring that for now the evidence in this case the documentary evidence in this case the specifications for mr webb monitors the mimic handbook that he used to  keep the specifications for the software using those monitors the specifications for that ye monitors the other documentary evidence shows undisputedly that the very same evidence that invalidate or many of the other claims that were validated by the jury invalidates the remaining claims you know as an example claim three requires that you have a video circuit a memory for storing an identification number in that case and  that the d m shows that all of the evidence that was there is not contested with respect to for example claim fifteen of the own i know patent that very same as it and that shows storage of a serial number in memory and retrieval of that serial number from memory shows in addition that an extra ill computer is controlling the display to retrieve the serial number and so no reasonable juror could conclude that claim three is invalid and also that claim fifteen there is valid because the same very teaching of control over the display occurs in the very same references even accepting that the arguments you make the snoring and in your brief are very persuasive you've got a serious problem here and that's just the problem of having obviousness and we don't even know with respect to the claims that the jury found invalid whether they thought they were anticipated or obvious so it's really got a hard job here numerous experts they couldn't believe parts of testimony and not parts of other testimony it seems like a pretty high barrier for you to have to clot coming out for us to try to figure out whether or not there was substantial evidence to support the jury precedent in this and in this court with respect to the issue of obviousness says that excepting with the jury that with the factual issues this court has the ability to look at the issue of obviousness as an issue of law and address at t to look at the uncontested documentary evidence that was submitted to the jury the weather pattern for example shows that the computer controls the display every primary reference that was used showed that the computer controlled the display that was undisputed no witness contradicted that no documents contradicted that given that this court can look at that evidence and find that claim fifteen of patent is invalid for being obvious based on that information similarly with respect to claim fifteen of the three four to patent that says you have to store in the memory information other than the identification number the very same documents that are there in black and white that are undisputed that shows storage of a serial number show storage of other information a version number a manufacturer i d frequency information those kinds of things they show up literally in the very same evidence in the very same document so a reasonable juror looking at that information would not be judging credibility it's there on the paper would be like a juror walking in this room today and accepting that you all are sitting in your chairs but not wearing your robe the jerk you come to that conclusion but no reasonable person can do that because of the physical evidence is to the contrary and it simply wrong there is a matter you guys can see that is a matter of  with respect to the other claims to deal with a model number that describes a type of a display it's clear that when you have a reference that shows a serial number claim eighty eight that modest contends it isn't held invalid but there was not substantial evidence to do that with respect to the functional limitation there v p shows in this fact that model number serial number display type frequency settings things like that were known by persons skilled in the arm to be stored in display memory webs specifications not a subject of credibility for the specifications themselves that say in black and white show storage of serial numbers model numbers frequency operating ranges the adjustment data that's there and they provide the specifications to cause that information to be input to the computer and read back out of the computer and so with respect to those claims it is literally the very same evidence that you can consider and then look at the obviousness determination furthermore here when you look at the prior art and the fact that it does disclose each and every one of these elements of these claims it's ok for you to look at those references at the obviousness legal level for k s r and to the extent that it's known that these things would work for their intended purposes for example a model number being stored in addition to a serial number or frequency data being stored in addition to a sequel to the serial number and you could pull that out you know that that will work for its intended purpose in case archaeology as a matter of law that when that occurs obviousness is presumed absent a showing that somebody skilled in the art couldn't make that happen and that is simply not the case here furthermore the case law for boston scientific have your claims for example claim three of the own i know that are rejected and held invalid and there was no distinguishing between from a commercial success standpoint the elements of those claims from the elements of the claims that survive the jury so there's no record of where the nexus for this alleged commercial success might actually tie in to the claims that survive and i think you are entitled to consider that when you all look at the legal issue of obviousness similarly if you look at the eight twelve family it's not disputed the record evidence shows that each and every element of those claims is found in the prior art for example this isn't binding on you lot but with respect to the five eight patent claim one the work time feels interferences now the trademark trial and appeal board has ruled that that claim is obvious based separately on by itself and then also based on web and r s two three two spec which is the very same references that we're talking about here in this proceeding it's not binding on you but from a legal determination standpoint it shows that all of deployment obviousne the current status of the proceedings before that trademark office with respect to the you know twelve claims web teaches all of the elements of the of the twelve claims but for the use of a single communication cable and i think one of you said earlier today that less is always better so going from multiple cables one day would always be better right and so using that single cable from talk of haji in web would give you a system that meets all the limitations of those claims similarly if you just take the programming from the web and use that in takahashi you have a system that again meets all of the limitations of the claims to the extent that there was a statement about  reading data out of memory or reading control data out of memory or sending response confirmation signals that's shown in the web specs again it's not something that's subject to a credibility determination it's subject something that shown in various times he tried to tie it together with various documents and alleging that he had sold certain monitors at certain times which were unavailable for examination and their whole case on the web turned on one no two g two what did he and what did he conceived when did he conceive it was it ever reduced to practice was it abandon suppressed or conceal all very intensely factual issues which were resolved we don't know precisely how it was resolved because we have a black box verdict that drawing was presented was drawn in front of the jury by mr webb in that drawing are certain elements that are described in the patent like the word communication controller which appears nowhere in any of mr documents was written up on the board by mr webb we called the factor on now when their expert got up to testify that what is webb webb is what was on the board and he was going to give an opinion that what was on the board was prior art we said wait a second that was not disclosed in the act for reports it's never been clear from the expert for its right through to this argument what exactly they claim specifically is the thing that was invented and on what day was invented and judge ward refused to allow their expert to give an opinion relating to that dry they then took a picture of it they took the picture and they put it in there james all briefing why that will be available for this court it is not evidence it wasn't demonstrative it was shown to the jury but we can only consider if you were here on a jame all motion we're here on appeal to overturn a ruling denying jame all based on a jury that concluded lack of obviousness with respect to certain claims under the clear and convincing standard with disputed expert testimony the drawing does not help it is not evidence and it cannot be considered and it was inappropriate  the standard here is it to determine whether the jury whether there is sufficient evidence that a reasonable jury could have found in favor of minds and given all of the factual disputes starting with what the prior art was starting with obviousness and motivation to combine starting with the fact that their expert was a hired gun who had testified in a lot of patent cases had electrical engineering degree but he did not have any experience in the monitor industry and he admitted he was less of an expert than ours during cross examination based on that record they're simply not entitled to overturn the judge's considered ruling you heard the evidence on jamie as to your point with respect to the black box verdict the pla actually propose in his jury instructions and jury verdict form that we put next to each claim to ask the jury which prior art references they requested that they relied on if they found any claim invalid they oppose that request and the and the verdict form went to jury verdict on claim three and claim fifteen which was dependent on claim three was inconsistent then they needed to meet the standard for an inconsistent jury verdict and move for a new trial they never move for a new trial throughout their papers say they asked for model in the alternative new trial but they never filed a new trial motion and here at all that's way the only way they can succeed here is if they can show that no reasonable jury could find that the prior art is exactly what they say it was that the application of the prior art is what they say it was their expert was so credible no jury could find him unbelievable and that our experts were completely incredible they can't get there with respect to the i don't want to give the pending motion because it is pending but i do want to say examiners in the resented nation unit sided with us the board felt differently they sent it back to the examiners it's been kicking around the office under a different standard they need to land here but the question to trial is what are their experts say did they get over the clearly the clear and convincing evidence standard and and they didn't get there let me address just a couple of brief points on my cross appeal as have any other questions for me and the after criticizing my worthy opponent for not meeting the jame all standard i i do want to point the court to an issue where i do think the districts were aired with respect to the h p licensed and the reason why there's a difference between our position and their position is the burden of proof is always important on these they bore the burden of proof of coming forward with evidence some evidence from which the jury can conclude that the h p monitors in the case realized what you had a couple of the h p witnesses he one issue i'd really like to focus on is two point zero five c of the license which says that if there are identical or substantially identical units sold before then they are not licensed and the reason behind that we believe your honor is that if intellects were selling units of a certain design and they just happen to get a contract with each pay then those h p units would be licensed with each and that was that i believe we believe that was the basis behind the agreement but in order to meet that they had to show that nothing that sold before the h p agreement was substantially identical to what h p was south by definition no one at h p would know that h p doesn't know what analog sold years before someone needed to come to trial and this is a technical seven to fifty eight and the sum total of that is an h p employee making a conclusory statement that they were intended to use their have made rights that's not evidence that's not sufficient we also have  a because of it because of a notice issue because the patent claims that the jury found were not invalid had come later in time and that he felt there wasn't proof of notice the record though is we've laid it out in our brief  parent not either not to look at it or which would be reckless behavior objective lee reckless behavior where they knew about it the testimony was they had an ip law professor who was running this that they had looked at the file histories and the jury was entitled to conclude that there was sufficient notice to in a lapse that they were on warning the judge conflated the two eighty seven standard for notice which now requires a specific charge of infringement of a claim and a specific product he conflated that with the wilson a standard which is so reckless behavior you can be reckless you don't have to have actual knowledge of everything we think because the judge made that error as to the timing point he didn't consider more generally and the case should be sent back down on willfulness to be heard under the new bard standard storage of the serial numbers of model numbers and other and information up that stuff is fixed that's correct that's correct but that the evidence that was it made it certainly does show the same pages adjust a display using the keyboard on your computer that for example with respect to claim fifteen yo and i know shows without question that display is being controlled by the computer there's there was no substantial evidence that shows that that was not the case with respect to any of the references with respect to you know we only have a limited number here for the black box of references that could be combined to invalidate claims three and other claims that were invalidated that would be either the specification evidence from web that show story of the serial numbers model numbers frequency data things like that or v t v p which shows storage of serial number model number frequency ranges things like that so and all of that evidence shows that with respect to claim fifteen and i know the computers controlling this play all of that evidence shows with respect to three for one if with the three four two patent claim fifteen that there's other information beyond the serial number stored in memory i right there in writing no reasonable person can look at that include that that wasn't part of the prior art similarly with respect to claim fourteen of the one eighty patent it shows you that the model number conclude that mr webb displays lack of you with respect to the office for sale it's the contracts that are entered into evidence that's not a testimony issue that's a contract that says here's what has to be provided here is what has to be provided here the signatures of the parties i mean that's actual evidence that the jury had the ability to consider and you have the ability to consider when you look at this issue from an obvious and standpoint the legal issues with respect to the willfulness if you notice if you there's no evidence whatsoever that our client had knowledge of the three for two patents there's circumstantial evidence that it might have had knowledge of a parent the one eighty but not the application and what they want to do is impose on parties an obligation once given notice