you want to reserve three minutes for rebuttal yesterday statutes govern damages for design patent cases thirty five u s c two eighty four and two eighty nine the latter pertains to explicitly design patents and allows the at and t to recover the defendant's profits in order to appeal deals with the district courts rule fifty nine decision limiting to patent damages to two ready for reasonable royalties and foregoing a proper determination  damages under two eighty nine he's jury instructions for thirty consuming but i don't see you having objected to them why didn't you object to the jury and say we didn't object to the two eighty nine jury instruction because it specifically states that system's profits was to be determined by gross revenues we have no problem with that at all with respect to the jury instruction the burden of proof your instruction and i believe it reads correctly the judge is misinterpreting it to basically read out section two eighty nine in he saying that the because the burden of proof jury instruction says that it's our burden to prove to a four and to eighty nine or to eighty nine we don't have the right to seek damages under two eighty nine which were that really did that either or problem that i had with jury instructions isn't it more appropriate to say that you're entitled to two ready nine damages if you if the jury doesn't find that there are any two eighty nine damages then the fallback is that generating some reasonable ropey isn't that the way the jury instruction should have been crafted and you never asked for that honor i don't believe that there is a i mean to me it's clear that the instructions are saying that the burden of proof instruction is stating that you can have you can prove to a four or to eighty nine which we did we prove both of them and the two eighty nine jury instruction clearly requires a gross revenue method for determining systems profits that's indisputable and  also clearly states that were seeking to eighty nine damages i think you're not entitled to both to eighty nine absolutely not your honor this court's decision in catalina lighting clearly states were not entitle to vote but we are entitled to a determination of both and then one would be selected not both ok so this case is more specifically pertains to who gets to keep the profits that systems acquired from its sale of one thousand four hundred fifty hydraulic dock levelers found to infringe nor dox design pat these one thousand four hundred fifty infringing sales are not in dispute there's also no dispute that systems profits on these infringing levelers was over six hundred thirty thousand dollars both systems  x experts testified and submitted reports showing that systems profits were over six hundred thirty thousand dollars and yet against all the weight against all the evidence and against all logic and reason the jury came back with a determination that systems profits were zero the district courts rule fifty nine decision fails to correct this instead the district court confusingly cites to systems experts cost savings method method for use to determine reasonable royalties to improperly determine that just to eighty nine damages or or are at my objection at trial what method the cost savings method yes the cost savings method is relevant for determining reasonable royalties under two eighty four the cost savings method is not relevant for determining system's profits under two eighty nine cases if you ask for a limiting instruction to that effect your honor we believe that the cost savings method is irrelevant for two eighty nine and the the more important focus should be on why the judge the district court judge allowed the systems for juries to find that system's profits were zero when the jury instructions clearly require a gross revenue methodology and suggest the money was given during the system by systems experts to the gross revenue method and system resided a jury instruction which was adopted  by a court that mandated a gross revenue methodology ok so your answer is no you didn't ask for limiting instruction so that the jury would not be confused between that between the two different methodolog profits or your lost profits well if the jury verdict clearly i mean question one of the jury verdict clearly requires a determination of damages or of infringement based on the l h p n l h d levelers and the jury clearly found that it was the levelers themselves that were infringing the crew in question for the jury instruction which systems did not object to clearly requires a determination of systems profits and the jury clearly indicated that those profits are zero right but if you look at the first sentence of number four it says for the amount of money in question to please indicate the amount if any for each  cataclysm and so you know a reasonable reading of the verdict form is that the jury chose it damages award based on a reasonable royalty calculation under two eighty four rather than using at defendant lot defendants total profits theory under two eighteen there's absolutely no evidence to support a finding of zero profits for systems it's  evidence all the evidence is that the profits are six hundred thirty thousand and it is the jury was was was empowered to make a determination of those profits asked to determine i'm the higher damages theory the largest damage award because in your view system's total profit is far larger than any reasonable royalty theory then therefore as a matter of l judge needed to grant you damages under the defendant's total profit that if there either our theory is that the two eighty nine jury instruction clearly states in this toxic system's profits and if you find infringement and do not find the seven fifty four design pap invalid you are to award nor dock systems total profits attributable to the infringement that is the instruction that relent relevant to gross profits and that's found on a six six eight five of the appendix and here we see that the title of the screen is system sales and profits accused  they have sales or gross revenues of thirteen million over thirteen million for both the hydraulic and mechanical levelers there's evidence here that they sold one thousand four hundred fifty seven levelers this is undisputed honor the operating profit on an individual level or is four hundred thirty three dollars per level or and if you simply multiply worked one thousand four hundred fifty seven by four hundred thirty three that gives you over six hundred thirty thousand dollars in profits it's simple math and they also which was an evidence of trial that the jury at available to it is that the system's own expert earlier on gave  report which clearly acknowledged to that time they had sold six hundred twenty two infringing dock levelers and clearly indicates that at that time those levelers produced profits of two hundred seventy thousand dollars again this is information that the jury had available to it our expert argued for a higher number but that was and the difference between those two has to do with s g and a so they're both experts are in agreement basically on an argument in clothing that at about the pope of the article of manufacture that you stay with inconsistent with the law and you object to that argument at closing your honor i did not object to cl out of professional courtesy but also because it's just not relevant cost method cost savings methods are relevant for two eighty four which can be limited to a portion of the infringing product they're clearly inappropriate though when you're determined to eighty nine damages because to eighty nine damages this court knows from its recent decisions are not a portion of all because congress said so and so applying a a reasonable royalty cost savings method to a two eighty nine determination is just irrelevant particularly when the jury instructions clearly require  finding based on gross profits and systems all expert testified to gross profit through through reports and testimony and what i think we're doing  f infringement yes there was evidence there were screens put up which are show the patent the use of the patent and show the product o europe there's evidence that all the levelers are manufactured on welding skids the skids are set up so that the middle six foot section is going to be identical whether it's a six foot six and a half foot or seven foot level or so you have you had the jury determine a saw pictures and compared evidence for the six they compared it for the seven the only difference is how it is a matter of three inches on each end of those levelers and the jury is manufacturers manufacture their levelers but there wasn't anything specific about this is also how systems goes about its manufacturing you think the fame whatever you call it kid i believe the briefs cover that issue your honor and i believe there is evidence that if they are made on welding skits and it's standard practice in the industry mr gleason had worked with a number of organizations where he had developed those and that's the way they're done  more specific there wasn't any testimony about systems specifically using this particular you know unitary manufacturing skit it was more about how in the industry as a whole based on anecdotal evidence about other manufacturers that therefore the inference must be that systems likewise does it that way is that their accounting of the testimony cover that issue if it's not there in the briefs then there was no evidence if it is there are  that there and say both experts talk about different numbers of profits and the jury is free to say ok well he says it's five thousand five hundred thousand and he says it's a million i think it's zero and you think the jury could reach that whether or not there was lost profits are all our expert did dispute that our experts said the profits on the article of manufacture that is actually covered by the design patent are experts said that those profits are less than the fifteen testimony in there evidence in the record from which the jury's conclusion can be supported you just told us that even with the legally iranian's description of law assets that your expert used he still had a number and and you're saying that they're still substantial evidence in the back of friends zero what all we can say your honor is the jury is free to say i don't believe that expert on that point and if i can if i can explain how this could happen we have to remember  which under the law breaking i mean the law is very clear on design patents you can't just pick out pieces of the design and say that's all it is only for two eighty nine you look at the entire article entire product you know he  cross examination to get up there and we demonstrate the suppose it expert does not know what he's doing but that didn't happen here or if the attempt was made that didn't happen here the jury is free to rely on what they heard and the point to keep making is royalties on the basis of reasonable royalties i conclude the reasonable royalty here is fifteen dollars per unit you then said looking at the systems profits my conclusion is systems profits is less than fifteen dollars per unit prove that it's x and somebody else comes and tries to prove that it's y and the jury says i can't understand either of these things so i can't make a determination all i can conclude is neither side proved any damages so based on the evidence  hear which is evidence i cannot accept because i don't trust that the jury can say there's a failure proof but that's not what the jury said the jury had to form and filled in the numbers zero exactly and i think the court correctly concluded what happened here with the jury correctly conclude there are three if there's a problem with the jury instructions it was up to nordyke to file a timely objection until the judge judge you doing this wrong that failed here we can't keep going back you know that's the purpose of having the discussion of jury instructions we spent a couple hours with  if they've proven that they're entitled to it but there and then get talked about to eighty four where you talk about your doctor profit and reasonable care at the end it's in that instance where that where the jury was told they could pick they were never told they could pick between two eighty four and two eighty nine jackie lation it does but these is the point here is and that evidence that nor doc is pointing to is that your own expert acknowledged that the the systems profit on the infringing stock levelers when you add it all up far far exceeds forty six k again all we can see here under is nordyke is the burden of proof on this and even if we present an expert th this the jury is free to say if they don't leave that expert the jury can say there's been no proof on this particular factually but the the point is that your expert conceded this this acknowledge that that  there were profits made on every single infringing leveler and that of the and then when you multiply that number of infringing levelers you get a number in the hundreds of thousands well what happen the article manufacturing based solely on an aspect of the design that are cases over and over and over in other words if you've got a design at the top of a tennis shoe it's the whole shoe it's the article of manufacture be believed his conclusions are rolling yes however on this one point you that when he got right the others he got all wrong but this one he got right and that's why we have juries is to resolve those types of things across a field you're challenging the judgment mobility whatever motions we make during the trial jame of the so forth we would we knew those motions to the extent that they were necessary i don't see anything specific in their requests if anything that would help not sure what that is but just for the record whatever we said before so you weren't even sure as to what argument she made in and when i balance that against the the applicable law just it is that you're objecting to are what it is you think there is insufficient evidence as it relates to without saying what it adds again your honor that at this point you know as i mentioned we are already been through this several love if not our certainly tens of minutes of argument on exactly these points the judge was very country and true screwed us out on our arguments why we thought that the answer minutes of i mean you're a first argument wasn't paragraph the one that you're now saying you incorporated the important issue on this thing is you know the six and a half foot level are also as i say we put in our grief i believe the seventh circuit law says that the emotions not need to be in writing obviously the court decides whether i'm correct or not on that but that's what we're relying on is the seventh circuit the law that says that although the better practice is put it in writing it need not be in writing but in that way it needs to be specific even if it's more you have to state a basis or a we did one at the close of our case and we did one after the jury verdict was read the substance of all those motions did not change it was you know basically substance of our motion was what was presented during the plaintiff's case in chief and we relied again as i said on the testimony of mr leeson where he himself identifies all elements of the of the ledger design as being functional so you're over your time your honors i would like to point out one thing that i think the court may already be happy where but i just want to make sure of it and that is that if you turn to page twelve an orthodox response briefly clearly shows a picture of systems level and it clearly shows that the predominant portion are the front and designers prompt prominently displayed in those brochures there also was evidence at trial that there were they were welded it's a nigger integral part of the product it's necessary to perform the intended function of the machine without it it won't it's was sold as a complete unit by systems the levelers were not sold without the front end and theirs and the evidence is that the front end was not sold separately customers in fact did look to the front end design when they were purchasing the decisions there's evidence to that at trial and this court as this court is aware of the congress has stated it is the design that sells the article with respect to the district courts jury instruction improper interpretation of the jury instruction i would just add that that improperly creates a legal fiction that no determination of two eighty nine damages is necessary and if it's adopted and thus got congress's intent for an acting to eighty nine it also avoids the undisputed fact that question fo of the jury instruction clearly asked the jury to determine systems pro the confusion i believe was problem with the district court was generated by the arguments the systems made to the district court that were dropped squarely rejected by this court and the recent apple decision that the article of manufacture is not the appropriate focus of the entire profit we believe that cause that system's cost savings method is not relevant to two eighty nine damages because it's contrary to established law well established law speculative in nature and they gates congress's intent for enacting two eighty nine with respect to the  don't know that there was any testimony by systems with respect to the the the machines being weighed made on a fixture but they do talk about them being well that and there was no evidence by systems refuting our testimony which was entered earlier that they're all made on six years systems never submitted any evidence saying that's just not true we don't do that is that a standard practice it's my understanding from the record that that would be a standard practice in the industry and from the trial record if there's no further questions your honor ok the case of