district court made for or made to the iranians instructions to the jury and construed to claims or honestly and denied terex its opportunity to have a jury decide whether it infringed or not i'd like to begin by discussing willfulness followed by the client construction issues and following that with one of the three and the ultimate issue in this case the district court gave the jury a jury instruction based on underwater devices the due care standard that standard was rejected by this court in se the district the district courts instruction was prejudicial the didn't the jury could not of decided whether our screens infringement was willful under the objective analysis articulated in seagate because it had been given the wrong jury instruction the error had a significant impact on this case based on the jury's finding of willful infringement the district court double damages to about fifty million dollars instruction and try to do an obvious and objective prong analysis under seagate in his post trial orders had met so suggestion it incorporated a subjective analysis into what should have been otherwise an objective analysis it required our screen to show that he knew at the time of its alleged infringement of the object of lee reasonable defenses that takes the analysis out of the objective realm and puts it into the subjective jamiel the district court seem to think that that was not a barrier to addressing the question of obviousness as a whole my correct about that yes your honor and is your contention that because the district court in the court made it clear that obviousness was going to the jury mets of counsel understood that obviousness was going to the jury the standard is relatively low when you know that the issue is going to the jury there was no it would have been counterproductive for what about the secondary well the jury was not given any secondary considerations instructions for what them for what that's worth all the evidence a secondary consideration the evidence in the record is that there were  the power screen and by other screen or makers in the industry the evidence as far as dealer screeners in the industry is as wanting because there's no testimony or evidence that they actually did in french  at all that's in evidence is a bunch of brochures commercial success i believe is argued below with the low the evidence the powers we found i mean apart from the fact that the folding is done the same way well actually the folding if you step back it at forty thousand feet it looks like the folding is done in the same way the folding is actually accomplished in a different way the power screen device doesn't have that the patent has a ram between the head and tail section that lets the head fold relative to the tail so they're not the same there really wasn't copying as as is normally thought of that wasn't a replication if you no the key thing when we're talking about one of those three is well there was a motivation to to make the device one thing that has his important and that is maybe lacking a little bit in the brief g if i had at the time he was very important to keep a screener within eight foot six inches because if you're under eight foot six inches you didn't have to have a permit you could  the rug you could travel on the road without a permit and that was really important eighty to join appendix eighty two and thirteen three hundred talk about how important that was the inventor wanted to create a screener that could travel down the road and be compact enough that it wouldn't need a permanent now they're meant soz argue there's unexpected results there are kno it's known that you can you can fold things out of the tire in terms been around forever which teaches you that this is to make something longer if you put it in a triangular shape and perhaps more importantly matt so argue that you get this increased seventy percent throughput by having that the side conveyors fold of the way they claim did you did any other priorities the night ninety degree poland and the stopper i had i guess i'm talking about the l shaped hole right the zirp reference which was one of the references cited earlier cited on the face of the patent has a ninety degree fold and it has a stop testimony about the motivation to combine your own i don't know tory was couched in terms of the later the and or non infringement element by element and the the response was specifically responsive in iraq a tory was specific clearly putting the plaintiff i notice that the response was limited to i don't recall whether it was invalidity or or not infringement there was nothing that calls for any suggestion that i know what i'm asking is whether the p raise the piercing the corporate veil thing no your honor when did they first raise they raised the plaintiff raised it or it became an issue after defendants indicated that plaintiff had not put on or move the pla court handled every issue that came before it and didn't want to preclude anyone from arguing anything so that we wouldn't have to have a second or third trial something like that so the district court did not address the issue  waiver either of the general obviousness verdict or of the terex corporation piercing the corporate veil issue at all because we were all there we had just gone through an eight week trial and the judge cross examine their expert witness and you ask during a quick previous question was there any motivation to combine i asked the witness back and he had nothing there was nothing he could not say why you would wan pick this reference why you want to put that reference why you'd want to put the two references together why you'd want to take certain parts of each device off and combine them in that certain way to get to the to be in vain claim combine these two other then say well if you look at the invention this is this is if you put them together this way this is what you get but we've also have cases of these example where we've said that you don't need an expert test that effect yes the problem is you also have to look maybe you can get to a prima facia case of obviousness with the references i don't think you do because there is still no reason  flattened out if you had something sticking in one of the the end sticking out perpendicular you'd be driving down the road with like an airplane going down the road with wayne's it no one would want to do that and  combine that massive stock conveyor with the dominator you would have to do something and the something you would have to do with the inventiveness of this patent one secondary well the secondary considerations were absolutely compelling first of all power screen testified at length about being the the leader in the field for decades they had a conveyor that folded it folded once just like that single foal they use that for ten years before our patent our invention became commercially marketing point the point is that they fail to come up with our invention if it was so obvious how come they didn't come up with it and then they copied it there is absolutely evidence of copy there are documents that showed the the one of the men who was involved in design of the infringing screener actually worked for our company he was a draftsman he was involved in designing parts for the patented machine he quit and moved to their company and when when he was at their company they actually said what do you think knew of our patent didn't mention he knew of the patent he knew of our commercial device and he was involved in the design the other copy plus it looks exactly the same if you look at  yes yes but there's no document that says at the outset let's stop there it's not right you know except that it was it was there it was out in the market they were very aware of what was out there in the market and there is the fact that there are some thing once and suddenly they see our machine and fold twice and so in exactly that it folded exactly the same way now they say it gets from point a to point b when it folds in a different way the claims don't talk about how it gets from point a from folded to unfolded you know this was a copy of your commercial it's an exact copy in terms of the transfer position and the operative position how they got from one to the other is slightly different this is a new argument on the appeal at trial they said it was two references that the dominator and the master stopped conveyor and now with new lawyers they have this third reference which they say is it is relevant that reference by the claims feature of the patent because it folds in the center of the machine over the top of conditioning and ours is not sold in that way so no it does not and again they have no testimony from their expert about and they we i'm sorry i disagree with you i think it does have to show the exact appearance because that's the point of these machines they have u b s these arms they go out to the sides and if you fold if you fold it off the back and over the top that's this the that that it will will not work the whole point is so that you the ladder you have three conveyors on these machines one coming off the back and one coming off each of the sides and it's a different it's a different  f different idea but what that other reference had and again it's something that was considered by the examiner already and not raised and i would say that it was a waved argument they did not you mean disclosing to the patent office that's correct prior art that was before the patent office as was the master stock conveyor was a cumulative of prior art before the past patent office so the saying that these were withheld it is  their expert who cannot put on a case and there aren't very strong secondary considerations which dischord and the district court did consider which didn't work in this part from a law and stop well what else there is is commercial success they sold to twelve hundred seventy one machines that infringe for sales of one hundred sixty million dollars and we sold two hundred sixty five machines for forty three million  believe our damages expert who testified at length about the sales about what happened sales before and after the new design i believe it was there a connection between the the infringing feature and the increases as well the need the the feature that was a folded up and over had great advantages and those advantages were testified at lengths as as to what made that as as to the fact that this made it monic mechanically i see i see the advantage of that was or was or a connection made between the infringing feature the folding feature and the other features that have been  and the commercial success with your link me to them i'm not sure how to make the link other than to say that these features were a big deal and customers found these features the features they features as far as other secondary considerations there were in addition to terabytes there were five four other companies that have that change their design to the this l shape design after our product came out  making making this this design the industry standard  your honour's i have a couple of points i'd like to make at j sixteen six ninety four how are screened experts being questioned the salafi would you please explain to the jury how you would combine the dominator as shown in the photograph on the left was all or part of the master stockade the conveyor shown on the right to form the claimed invention of the six eighteen pap i agree to what i believe was represented there was evidence about the combination didn't let the issue go to the jury and it should have there's some question about whether the issue was hidden somehow if i might reference the court to j a twelve nine seventy two the district court wrote the defendants make as they have from the beginning stages of this case that they are the only connection terex corporatists that the only connection terex corporate perforation has to this case i is that it is the corporate parent of the defendant power screaming in a national there were no surprises from the beginning as recognized by the district court judge it was clear the cherrix had no connection to this case other than through power strength counsel looking at thirty that the the affirmative defense of pearson a corporal should not have been pleasure if you'll check the footnotes that relate to the second prong they relate to things like license  and this isn't a license case characters taking the position from the beginning that it didn't in french it does not directly in french it cannot directly in french there's no allegation of induced infringement or