good morning and may have to leave the court for any of the eight or more reasons that we've received the district court's orders should be vacated this morning i'd like to use my time to focus on four key issues number one the disc district  misconstrued the term first green and a proper construction of that term means that there is no infringement of either of the alleged claims the asserted claims to as a claim sixteen which is the only claim that the district court found was likely infringed the dischord erred in construing and in finding infringement of the to gassing chamber limitation three the claims are not entitled to a two thousand and seven filing da clients product i will talk about each of these in turn the district court construe the term first green to me any screen and a series of shellshock for screens including the last screen claim sixteen requires that a vacuum be applied to the first grain of the shell shaker to enhance the flow of drilling fluid through that screen with respect to a second screen that specifically does not have a vacuum applied to it and my department stands or falls on this notion location description the physical location well it describes the location as first in the claim itself the first grain is identified in the claim itself and something occurs in the first link with respect to the second screen but you'll have to go back to the specification to find the specific definition of a first grader so you want to limit the classes but i want you to read the claim in light of the specification which is in accordance indicated  physical limitation i would respectfully disagree because i think that because your honor we have submitted expert testimony from an expert in the field who would tell you that a person very skilled or chill shakers read the term first grade and i always hear flow of violence in this case there is a flow of slurry across several screens progressively becoming less and less because of the back to the screens and what they have invented in their inventions is the notion that under that first grain as demonstrated in their various sorts durations they played a vacuum to improve to enhance the float under that particular straight so the fact that there is a pattern convention which i i admit there is a pattern convention but that pattern of injured is not absolute and there is no base thing that is absolute and in fact there are cases where you derive the meaning of the specific terms by their description in the in the specification which is precisely the case here let me ask you if you can if you can turn to the detention camp as i looked at the record materials which seem to do the materials i guess it's a manual of some sort described to be guessing function performed by the facts why isn't that evidence sufficient to support the district court's conclusion that the gassing in some pattern if you look at the path prosecution history am i went in with just a chamber and the p t o limited him to eighty gassing chamber and it is a very specific spot in which that the gassing must occur and if you look that a slow line with air or liquid separation water or air separation performs the same function as that highly specific the gas in chamber so what the district court did was look at some elements of our device and say they are there's fluid more clear separation there for work that support the flow line in combination with a with a tank extraction well there are number of claims within the ninety nine that don't talk about fluid or gas separation but fundamentally the problem here is that the court of the district court construed two elements would include the last green where the back is located that's important because in my has never commercialized its product it's first screen technology didn't work our last screen technology does work and they know that because they marketed and  considerations for the rain of my time the discourse finding the reparable harm are based on speculation there's no evidence of him i've lost sales in my enter the market with the back of the screen pulls its product just a few weeks before the injunction hearing him i presented no evidence of sales much less lost sales and a president no evidence simply because it couldn't of lost market share none of this harm can be present but we are looking for what you are looking yes your honor you are looking forward as to what is the likely harm to come but in every instance where there's been a finding of a reputable form every case that they cite including bosch develop other case there is evidence of irreparable marketplace that presumes you're going to establish a put a role in the market to have an impact on the fact that you've invented a product that you believe will displace another project even infringing product that's not tested that's not present that can't be presumed there's no case allowing that to be present dra undisputed evidence is that we have provided evidence for ability to pay and that this injunction would put our company out of business which is precisely the thing that the court commented on going to comment on the reliance point of windsurfing in a similar case where the court indicated that at this stage not a permanent judge of a state a pulmonary injunction we should be very wary of putting a business out of putting the company out of business if you're thinking yes i think your honor may please the court let me address a couple of things that my opposing counsel has raised particularly on the first screen where i think we ended up after your core question judge is that there is nothing in the claim language that says this is the location of the first screen or the second screen that is used as a common pattern convention so we ended up in reliance on experts and that player and i think a player even though it's only a district court case and i'm finding here is instructive because  mcnally found was based on just the specification in the claim language you wouldn't have a location limitation but in the file history there was a specific argument where the patent he said because to get around this prior art we have to have things in this location first pass to come before second that's the only reason that they found it in this case there's been no evidence there's no argument that anything in the specification limits first to the inlet side and the other most important thing is what they're calling a definition is just a description of an example and in the example it uses the terms first and last two screens which are not the claim terms they're saying are defined in the claims it says a first screen and a second screen are not technical terms these are claims of terms of patent convention and should be given their ordinary meaning the different court got of exactly right on the claim construct and so they first screen a second screen just distinguishes two screens regardless of location where the first has a pressure differential in the second it's not the issue on the deep gassing chamber there is no limitation to a specific gassing the gassing chamber in fact what the patent says about  gassing chamber in the two eighty netcom eleven which the judge down below relied on at lines eight to nine it says the gassing the drilling fluid may be performed by any method known in the army so what happened down below was usa tried to come in with an expert declaration and say no do gas thing is limited to a specific type of the gas or the district court properly rejected that and then found just as the court has said from their own admissions in the saying that the patent covers their commercial environment in their marketing materials from their own experts prior report they said that the gassing chamber was part of the back to screen system so there is nothing that would say there isn't that the gas chamber on the preliminary record the court had there were multiple admissions multiple things that said we do have the gassing chamber this issue of performing the function is just a side because the district court w claim limitation it says eighty gassing chamber in fluid communication with the pressure differential generated i think the fluid communication is the line the chamber is the tank so i think the district court found all those were literally met w that was a fluid communication that was required so the system claim it requires a chamber requires a fluid communication and i think the district court was reacting to the language in the defendant's reconsideration brief which said there is no evidence that the line in the chamber perform the same function and i think while the district court language was maybe less than perfectly clear between the two orders he was very clear that it's the tank the line for food communication and then responding to their position is that these perform the the nine fifty nine issue that they raised by the way was not raised below this idea that there is on the specific location in the claims would not raise below for the did gas or so as to claim sixte i think the district court was very clear got it right on first and second screen it's clear from the claim this fact there's no need to go outside of those what first and second means and the d guessing chambers admitted so i think infringement the likelihood of success on claim sixteen is very well established as to claim one first and second was their primary argument it follows the same way they argued that they were not practicing the method and they were not controlling half of those with a total of the arguments for non chief judge i would say that inherently in the reconsideration order and saying that they are enjoined from infringing claim one he did find that claim was met he addressed in his first order the two non infringement arguments that they made which were first screen and controlling air flow and what he didn't do he latched onto their expert report which had one element that said flooring flowing slurry over the screen with the pressure differential and he said i don't need to decide that now and then they came back and they moved for reconsideration and in doing reconsideration i believe he inherently found that no reasonable person could find they weren't flowing slurry over the last green and that's why he did it but i will agree that that's not expressly written in the order i think this court could find based on the multiple admissions that they've made even in their most recent briefs but in their opening brief they repeatedly say there's slurry flowing over the last screen so to any extent that's the missing piece that the district court didn't specifically say i think this court could say there's no reasonable way to see it otherwise they've admitted it that it's slurry glory is defined in the patent the district court adopted that as a mixture of drilling fluid and cuttings and that's the whole purpose of both devices was to pull more drilling fluid off the cuttings so i think this court could say to any extent the district court needed to express the state that that could be done you know on a matter that score could find that no reasonable person could find otherwise based on their own admissions as to the a reparable harm if i can go there the defendants admitted repeatedly until their last brief that they've given to this court that this is a two player market and what they've said now is well there's no evidence and you're quite right  this is are going forward looking case and he said there's no evidence that there's lost market share a loss sells well in an admitted to player market which they've repeatedly said there is no other thing that could happen but there will be lost sales and along with that the lost opportunity to sell other goods and services which there is evidence in the record of i might put in a declaration saying when we're on the rig and we have the opportunity to sell this divides we also have the opportunity to sell other things such as more drilling fluid shakers replacement screens many other things all of those will be lost if they're allowed to continue in this market the loss of exclusivity i mean that's a common pattern thing is we have the right to say that we're not going to license others to use our technology we have the right to market as for the exclusive supplier in fact one of the things that's not accurate in the way council portrays this is they say well we've been out there in the market and now i'm i was changing the status quo the actual status quo was am i was selling a product called a maximizer and renting some of their screen so am i was the only brand name known and only one am i found out they were going to start selling on their own and this patent came out that changed the status quo and so the status quo is being maintained eliminating junction there's also the in addition to the loss of exclusivities the lost sales the last things that go along with the sales the ability to brand our things ourselves there is the danger of their inability to fat despite council saying you know that there's no that's not a factor in a rebel harm it is a factor because they have repeatedly said now they only have forty five days of operating cash and so if they're you know that in fact what they've said is the only way we could pay a judgment is if are allowed to go forward and keep selling the infringing product so that at the end of the case we could pay for that infringement and that's certainly not what's intended and why you can the sense to me you have nothing else i take it other than their assertion that they have their at risk if they're enjoying it too much yes your honor and i agree with you that that is our evidence those two things in large part because the defendant has control in control of what they put in and we argue down below that we think this is a company that has a risk we think because they have a canadian parent and they don't have cast that's an issue on irreparable harm they came in only with a declaration that said we would be put out of business it kind of blurred sales between canada and the u s it's really what they did they didn't have a revenue figure for us if i recall preliminary record and in fact the court offered at the end of the hearing on this issue we had asked to present live witnesses the court said it didn't have time but it would can give us another day we could come back present any additional evidence on both counts all agreed that the record was complete and the court did not need to do but i think really it shouldn't be held against us that defendant hasn't come forward with any financial records profit statements law statements anything to verify what they're saying all we could get was the public record which is the dun and bradstreet that says the right wrist without further discovery now this is a preliminary proceeding i don't think there's any clear error in the way the court looked at this and found that there was no current on the record that it had on the preliminary basis but i do think it's important that second issue that you raised the bryson as they have been what they're saying is we've been in business since two thousand and twelve it's now lead two thousand and fifteen and we only have forty five days of operating cash or we're going to go out of business i think that can be considered as a record evidence that there's a real danger that they're not going to be able to pay judgments and i'm not really conversant with the system that doesn't rightfully uses to report these and so it struck me just looking at the particular item that you relied on that there is perhaps some seeming tensions which the other side is funded to between the financial stress class rating for the democrats fifty four which is next to the highest risk and their risk of severe financial stress as being zero point one percent i think that's what it's saying although i think what it's saying is for small businesses of this size it's typically not at the highest risk right in terms of bankruptcy but it's not the dressing all the factors because it's not a public company and so dun and bradstreet can only get the information that's given to ok so you think your interpretation of the risk of severe financial stress number is  comment no your honor i think i would say that in terms of cases where a preliminary injunction is warranted this is about one of the strongest i've seen as a very high likelihood of success it has been essential in knowing the libby challenge to raise  only prior art they assert is to say that their own device anticipates if we don't get the support for the claims in the record on the this fact in the various other items we pointed to there's plenty of support for the limitations so i think there's essentially no invalidity challenge a very strong infringement case and then on the or on the equitable factors i think they mean our way or at best are even on that one issue because of the claimed risk even though they didn't provide any financial data so overall i think the district court got it exactly right on the merits instructions that make can you comment on whether the injunction needs to be formulated any one of those theories i don't think it needs to be but i think the main these case which we pointed to issue of in a single order i think could be easily handled on remand with direction from this court on claim one as i've said both of their arguments that they raise below or addressed by the district court this one issue on the in effect i think the district court could have used or any colorable version of the back strength and that would have been a better argument that would have an article language and i think this court can certainly direct the court to do that i think it's kind of a straw man issue because they've repeatedly said we only have one product it had the same embodiment since two thousand and ten it's never changed it's current so when the court says you know you're enjoined from selling of the back screen i think it's very clear they know exactly what the order is but i agree it could be something that could be cleaned up below and just say for any colorful version well that it could matter if for example they can stick a sign around which was more than a color limitation of the back screen but nonetheless you would if you continued it was still infringing arguing about whether the supposed is non colorable difference that they you know alleged doesn't infringe whether it infringes or not and we'd be arguing about is it non callable in stonebridge is the difference for the defendant would be that the consequence of that argument in the context of an order that talked about infringing the would be to think the subject intent as opposed to you are making a new argument an infringement in the context of an order that says first i want to i want to make sure that we're clear on what the the court found regarding claim one he specifically said i need not decide whether the vaccine performs a second step because he found infringement by texting and then he cited  specifically identifies almost in total the fluid line as being the the gassing chamber and conflates those two items into becoming very specific to another incorporates the notion of the gassing at some level is at the very specific the gassing function identified into a pattern i don't know your honor i would suggest not and it does not occur in the very specific chamber that the two it requires lost sales or lost more chill despite it saying that in the market with the product in two thousand and fourteen the sequence matters because they evaluate a product in two thousand and ten they began marketing our product as their own in two thousand and twelve and when we turned down their offer twenty seven million dollars for our technology in late two thousand and fourteen they took this first screen patent and pseudosphere infringement with our last spring product and during that time when they were marketing our product as their product as a maximizer painting it with the in my flock of colors and and exposing to the marketplace they didn't gather data of their last tagalong sales are what those tagalong sales might be because when they submitted their affidavits your honour's all they said was there may be lost tagalong sales without identifying what those sales would be and what what the guidance would be so so the suggestion that on the record they've demonstrated irreparable hor trouble but six point four million dollars for the convention and yet having only forty five days of cash it seems to me not to necessarily suggest that you are in the peak well two points for our one is there was evidence submitted during the bond proceeding which occurred subsequent admittedly subsequent to the initial hearing that when the court requested information the bond we provided for their financial i we don't know what that point to is there is some point them out there that assuredly we can't afford to pay the right now there is no record before this quarter for that matter before the district court as to what in my standards is or so you're measuring our ability to pay  but that product is a success and we can take incentives fte some sales growth although we are a relatively limited player in the market next in line as they point out they point out that we have only four screens in the marketplace which suggest de minimus impact that we could be having on the market so if you look for example at their briefing on the amount of bond they suggest two hundred fifty thousand dollars because they anticipate that is our last profit on our sales during the course of litigation given the relatively small size of us in the marketplace and the fact that they produce no evidence of actual lost sales it's very difficult to match up our ability to pay with this imaginary number  so on on a ten eighty nine our financial expert admittedly in connection with the bond briefing in paragraph thirteen has