morning inmates lisa court it's our position that they just record made significant legal errors in this case requiring reversal so let me be more specific and cut to the chase in the three t thousand the district court covered the word handle gin the claims to cover not only the barrel of a gun shaped a vase device but the cover of an snub behind the barrel and it does so even best cation repeatedly distinguishes between the barrel and the handle and even more significantly in a parent's application there was a reference to match and reference which was distinguished on the ground that the motor wasn't in the nub behind the barrel and the issue there what was the header so the exact same situation occurred in that period application it but i think the court also noted that you're not going to revisit klein's instruction now so you're going to put it in the context of infringement so it seems to me you have a kind of craft a more difficult hurdle here in terms of the process given how the case for plain and ordinary meeting but in the light of the specification and the prosecution history was referred to express fully not in the martin hearing but in the summary judgment briefing and this makes clear that claim construction is or is a rolling process it doesn't all have to happen in the in the mark been part of a portion of the case so we have five seven zero one zero five where they made those points in the martin brief and we have eight three one nine nine two dash dash two two which is not in the appendix but which is in the record showing was raised in the summ judgment brief and i will note that the district court expressly held that the position of striker was also plain meaning in the light of the specification so these issues were raised below and there was no holding that there was a waiver below but similar never came in and said we ought to have a claim construction that there's a separate handle and there's a argued that is the plain ordinary meaning and if you read the specifications in the prosecution history which we refer to later you will see that they that those sources confirm that the handle and what is the barrel you have to look at this specification which actuates well i guess my question is can't they the barrel also be a hands off no even if it's designed to be help your honor the issue is not the claim is not restricted to a pistol like device but when you have a pistol like device and you look at what the claim is cover and you have to look at it in terms of what would you call a pistol like device if you go to the web go to the web and you look at pistols or guns you will find that the barrel is what is traditionally known as the barrel of the gun and the handle is what is traditionally known as the handle of the gun it is true that these devices were designed to be device and they said and the motor was in another behind the barrel and the and they said that reference doesn't anticipate us because that is not the handle so we have a prosecution history  there because the motor is in the rear of the barrel and you needed a segment of this pistol like device to house the motor and that is why the nub is there now there was cross examination in which counsel for stryker retreated repeatedly try to get the witnesses may in donaldson to admit that the device was designed to be held knob they never agreed that it was designed to be held in the knob at one point he said i guess you can call he never said designed to be held i guess you can call it i handle he said suggest that of the prosecution history the record in the case does not support the notion that a barrel is a handle regardless of where it is held or how it is to be h nobody ever suggested that because it is held other than stryker because it is designed to be held in the barrel that makes the handle let me let me move you on to just one look just a quite low one technical question which is it's my understanding you would need to reverse pull on both the three twenty nine and eight zero seven in order to a stat the damages calculation here and that's correct that that's correct around can we move on to willfulness yes and let me ask you knows and we pointed out that octane fitness and all care which i know a little not since i argued the op your case a do not affect this case those cases out on section two eighty five dealing with enhanced damages and we're talking wolf on this is to eighty four and the case law supports the notion that attorney fees are compensatory and the will from this holding and the willfulness that requires a reckless or reckless finding and reckless finding requires an objective review so our position is that i pain fitness and all care highmark do not affect this case but we also will know two additional things it's our position that it doesn't make any difference whether those cases affect this case because our position is that our position was reasonable even if you look at the lower standard our position that a barrel is not a handle is reasonable our position is that you can have on the eight o seven patents you can have a broad construction for infringement  in that case dictated by the octane fitness case the court said since we've decided octane fitness this is the decision we make in our care highmark but no two says even under a deferential standard of review you must review factual errors for a clearly erroneous review because that is in of use discretion and you have to review legal errors separately so i'm suggesting even if there is a deferential review the result is exactly as from when you try to not objective recklessness and so i suggest that first of all those two supreme court cases don't affect this case and these are reviewed and it has another review because it's an objective house and same rule applies here but i i want to make clear our position is it doesn't make any difference what the standard review is we think we satisfy either test but i think the chinese see what happens to attorneys l again subject to that but no two and that is is that if it is on the merits though is it your view that if hypothetically we were to agree with your position on wilful that because of the judge's decision on because they're all tied together the i think the decision below was really tied to the well from this finding and the well from this finding dictated everything so for example if you were reversed on two of the three  that would very well impact on the entire package because the district court's decision was based on everything before him and if the district court had found  wind part of the package to be problematical that might have led him to decide the case one way if he found three parts of the package problematical that led him to decided on the way strategy competing first worrying about the consequences later on appeal here there are attempts to justify it's a willful and flagrant infringement by ignoring the jury verdict providing new defenses to make this case appear close despite lame but in the course of the briefing the summary judgment motion and it became very clear that they had a different definition than you did in the district court in the not siding with you so i don't see why that's not up for you if we think that the district or  really interpreted receiving and doesn't have to go back i don't think so and this is why even aside from the waiver issue there's simply no basis for bringing in any kind of limitation that limits something position here where at the very same time that they were arguing summary judgment of not infringement and saying the pulse back class mail novels cannot receive the tip they were saying there's no genuine issue of material fact that the vera pulse their prior art male models do receive a tip and so you can see where the district was coming from where you can't take both positions are and say there's no genuine issue of material fact in here nobody was disputing the striker did not dispute that vera p was the end of the story so again there hasn't been any tying by zimmer of there were skeptical definition which by the way we've never seen until this appeal there's no way that tie that to the let me turn you back to the three twenty nine sure seems to me that you're infringement case here depends on whether him could be held as equated to design designed to be held and it just seems a bit satisfy being designed to be held was this court is noted in previous so pinions it's not that subject of intent of the designer that matters here we're looking at products and if you look at the if you look at this invention of three twenty nine the handpiece itself that's what this is talking about it's not an invention about deciding with mathematical precision what part is the handle what part is the barrel this is all about an ergonomic hand piece that is supposed to be held patient's going to be situated on the operating room table they might be hiding might be a low they're not there any might be out there in the might be down physicians are all different sizes you might be tall you might be short big  that's the beauty of this invention is that you don't have to hold it like this if you're short that's very hard to do and that's why it is important to have a hand piece they can be held in multiple different ways and that's why that was such an important feature how did buy not just striker in trying to sell its products but also zimmer and so when you look at it from that perspective it's clear to see that the handle it does matter isn't designed to be held by the hand or hand zimmer at trial tried to make the argument that was not because look at these textured areas those are the only fortunes that are designed to be held by the hand but all it took was for the jury to actually have the opportunity to manipulate the device to see how these products are used who can forget the video testimony of the possible designers themselves demonstrating precisely how these devices were designed to be held again we also had substantial evidence in the form hand another important at least two other issues that i want to raise with respect to the three twenty nine patents and that is we can't forget that the jury also found infringement under the doctrine of equivalence and what does that mean that means even if that knowledge is not space between the top and bottom of the handles so even if there is no literal infringement the jury found is that that was an insubstantial change so that there was substantial ev support the jury's verdict in the form of extensive testimony by stryker's expert or she in discussing the function away result analysis and aside from that we've heard different testimony as to whether handle has a plain ordinary meaning versus whether it has a special meeting that you are limited to what's in the specification and here we haven't really discussed at length there m certainly didn't discuss it page fifty one fifty three of stryker's brief we described how even under zimmer's proposed construction which actually isn't a construction off at all but rather a negative limitation there still in fr so the specification describes the barrel as being that portion that extends forward from the top of the handle this is not where zimmer chose to place its motor rather ziller place just motor here in the back that's not part of the barrel if stryker is a less than hog or her it's not part of the barrel it's nowhere described in the specification and so even under their construction they still loose and that's why we believe that their positions have been objectively reasonable because even if what they're saying an appeal they still lose an infringement and with respect to the matches that they have relied on the issue involved in that one thirty three file history totally different as they say it's the same issue about what's part of the handle what part of the barrel if you look at the claim scopes and striker has laid them out on page forty six it's brief you can see side by side one of the different same stows so claim to talks about a handle does not mention a barrel does not mention any angle whereas claim thirty nine one thirty three application talks about this have to be a reciprocating pump to driven by a motor or the motor drive have to act through an angle between the barrel on the handle it cannot be  there's no angle drive the point of that discussion was not again to determine with mathematical precision whether the water was in the handle or barrel that was not at all what they were directed to and again same to doesn't care about angles doesn't care about their roles in the region so the university of minnesota case from the court makes clear when you're looking at it for follow you don't look at words in isolation you look at the same another very important issue regarding that file history is matching the is not also that the mansion is a pneumatic device that number didn't even rely on its prior art to try to invalidate the three twenty did drop a footnote in our briefings and we provided supplemental authority but we do feel that deference should be given to the district court in to the jury here on the question of objective reckless why because the supremes court said that the district court is in the best position to determine the relative strength of the party position and here below there were a lot of issues at trial and prior t trial only a small subset has been brought up on appeal here and this whole looking at all of the defenses this district court was angry i think you can tell by the way the open units written that they the district court both felt very strongly that this infringement was flagrant that was copying there was no opinions of counsel there was no attempts to have any kind of remedial action whatsoever even after being found to infringe on summary judgment and so here again the district court was in the best position to assess the credibility of the witnesses and that became a very important issue with all these factors to such an of the expert testimony was notably favorable to striker now one last point that i want to get to is the effort to tracy question and under octane now you don't have to have both objective and subjective that this other device which didn't have that definition wouldn't comply with that definition of receipt was prior art and so i just wanted you to explain to me why that's not an inconsistency that we should take into account or there for the assembly they argued our positions were inconsistent one with the other those positions were alternative positions they are inconsistent if you argue them both at the same time we argued that if the interpretation was broad then it applied one way infringement and the same way for literally if was narrow the same thing we're not arguing both saying both things at the same time the receiving point has to do with the disclosure of the eight zero seven have that set up right that was in connection with the lock assembly issue it did not we argued that the lock assembly was de force defined so broadly by streicher in the district court that as broadly as they defined it the early american pulse would anticipate but we argued alternatively that if was narrow then there'd be no infringement so that was the alternative argument i just want to talk about imagine if you have any other questions on that point i want to talk about imagine very briefly if you look at page two five two two zero of the appendix which is in volume two you will see the statement about ima in the accused device and is was they said also in contrast matches motor and pump  acquittal and aside from the fact that the three reasons for keeping it where it is out of the handle do not apply when it's in the handle the fact is that there's a