so with that i'd like to start of course with the claim construction which as i said i think is wrong for at least two reasons the district court construed the claims of operative element of the claim to require a conjugated where the conjugation was not random the word random does not appear in the claim it only appears in the claim construction however that was the result of  specification which we believe clearly teaches away from random peggle ation by life seems and also a disclaimer during the file history in which the patent teams or the applicant clearly disclaimed any conjugation with reactive groups where it is random namely i mean or lysine and does not ensure attachment that attachment occurs at the b domain and i'm referring to their appeal brief which is cited throughout our brief and so the disclaimer was found by the court that was not appealed by barry here so there is a disclaimer and  disclaimer and the specification itself we believe that the claimed construction should have been so as to exclude conjugation at and lay scenes and big and then further what also happened here is because the parties did not agree on what random might mean and this is in response to direct questions from the court during markman bear said it's susceptible to many meanings  we gave our definition of random which was excluding conjugation at means or life seems the court did not adopt either one of those or any of those definitions but just used the words not random in its claim construction and later in the case before trial we asked the court to clarify or construe what it meant by not random it was clear that there was a dispute between the parties going  to trial and the court refrained and declined our request to construe what was what it meant by not random and as a result we went to trial where both sides  meant and the court was clear in its claim construction during trial that the only construction is the construction that it gave in its order of july th twenty eight dollars team and that that was the full extent of the construction and so it's a classic case i believe of pre marketing where those litigants went to the jury and each argued what an important key feature of the claim meant and they left it up to the jury to to make its decision on whether or not there was infringement or literacy mr hauger when i understand from the prosecution history where is the disclaimer of random conjugation originated but i don't find anywhere that suggests that the disclaimer goes as far as you would sites which are present not only in the b domain but in other domains that is the boss or reference any conjugation with these reactive groups namely the amien or cover box the site is random and which are random and that's what they're distinguishing over here in the in the disclaimer portion of the file history and that is entirely consist with a disclosure in the pattern such as that  for where they talk about random modification of factor eight and they talk about the problems associated with lysine conjugation of factor eight which has to be random because there are one hundred and fifty eight sites in eight hundred and fifty eight life seems sites both within the b domain and outside the b domain and there is no way to peddle a to any one particular site and that's why it's random and what they distinguished over was what is disclosed in the past which is cysteine hegel a shame which is site specific meaning that the conjugation will always be at that particular site which is in the be domain only one site and that retains and that's the only way to retain functional factor eight activity which is another requirement in the claim as part of the claim construction and so this this whole argument about the disclaimer and the disclosure the patent also goes to the non unable men issue so the not enablement issue because there's simply nothing in the disclosure here in the intrinsic record that tells a person of ordinary skill in the art how you could possibly conjugate and means or life things in a nonrandom way and indeed it teaches away from that and says you can't and that's what they're distinguishing of is the point of novelty really  this whole pattern and so if the claim construction as it sits now putting aside the problem of not even really knowing what is meant by not random in the courts claim construction if that claim construction is left to be description other than eyes that pointed out in the background where they're teaching away from lysine conjugation and that's the end as i go back to my original point on where we were left with with the jury is quick whole trial became whether we're talking about a random process or a non random process but we were using different views of what random and not random meant and that's legal era the court i think  obligated to make that clear to the parties but more importantly to the jury and that didn't happen in this case and i also point to the spec again a column three line fifty to column four lines i think  twenty lysine is much lysine conjugation is much more problematical that is what they would distinguishing over than the prior art in their disclaimer and in and in the rest of the intrinsic record and as i said unfortunately we saw this problem brewing before the trial and asked the court to help and construe what it meant by its construction effectively  and we were unable to get that clarification and that carried through the trial i think the answer is yes based on the intrinsic record based on what this patent says in its descriptions and will of the examples in the past there are other obviously there are other amino acids contrary to what you just said that is that jury hear any expert testimony about how life being pack aeration could be targeted to the two that the area sorry i aleisha and in addition to that there was extensive evidence or the experts and fact witness witnesses talked about numerous admissions to the f d a including testimony that went to a controlled targeted  substantial evidence in the record including the f d a admissions and so the experts spoke about this it is a fact question the jury came out squarely against them i don't know if that answers your question  so there was extensive evidence to that effect and there was really no question as you see the evidence the trial was really rather overwhelming with respect to the amount of technician to be dummy the jury also heard construction how would you isolate your target to be domain without eliminating conjugation of lights is the inclusion of calcium another one is you would just ph another one is you consider the ratio of eggs to factory and a th one is plunging in other words when you stop the reaction and so if you take a look at his testimony he references what calcium does with factor eight is it exposes the tail like structure of factor of the domain so that it's more a valid goal for peg elation they had just the ph so that life seems a more reactive and then they  did i would put that in the in the category of optimizing rather than experiment doing so so in other words it's not just the amino acids it's the overall conditions under which reaction are the same conditions category of conditions that are available in assisting reaction it's just it's just that you may need to optimize them with a lysine in order to direct the the pig to the factor so so the reaction conditions of the same it's not like they need to introduce some new type of reaction condition it's the same reaction conditions in the process is there substantially similar what i'm trying to get at what your understanding of rand of well i think that mr mr howe doesn't point out that in his opening he actually gave the jury what that means he said random means you don't know where it's going and if you can't find a target or or can't hit a target it's random the jury here heard plenty of evidence about top of the target being hit in fact that's the word that was in their f d a documents but that but that meaning was known  throughout the trial the experts and the witnesses basically had all d of the same understanding one of the star witnesses dr both sides said peggs just go everywhere one of our inventors dr murphy said you're not sure where peg is going plus one of our experts said peg elation with it without regard to location there was no confusion as to what the word random that indeed they were pushing this  howe gave this new definition which was random means you don't know where it's going and now on appeal they are now arguing a different meaning for the term which is that conjugation occurs at multiple amino acid sites so they've been inconsistent in what they've been urging the district court to do but now they're blaming the district court for not adopting a definition of random and in fact the district court specifically opened the to he told the district court before the case went to the jury that no more claim construction is necessary so obviously they made a strategic decision on that and it should be untied and they should your part to live with it enablement and clearly we did not have an obligation to respond to a case that was not made a trial there was some conclusory testimony but as we know that can carry to go to the jury the jury was aware that that nectar knew that there was developing the factory products so they were prior business dealings their random peg elation project when they later worked for  fact as of as early as two thousand and eleven that the claim that was pending in the patent office was substantially the same claim as in the patent significantly what the district court did is it excluded a was significant information including some charts showing that retention of activity if you peg a late in the b domain which was a revolutionary concept at the time and within a very short period of time that information was circulated having been done on peg elating the domain so that evidence that was excluded was significant and it should have been we should have been able to run with it and the case should not have been taken from the jury yes your honor sorry i think we had a problem with the communication i'd like to start mr baccy talked about the reaction conditions in the being similar between fifteen and lysine conjugation these are in no way the same or even close to being similar fifteen peggle ation allows site specific nonrandom conjugation whereas lysine does not as they disclaimed in that prosecution in about possible conjugation at m e s or boxy site and these reactive groups result in random conjugation and cannot does not ensure attachment at the beach don't mean it couldn't be clearer it is very clear and as i said earlier completely consistent with the specifications mr beck we also talk about some of the expert testimony here in the expert for backs also doctors alecky said it was really enablement the inventors themselves there were two inventors who testified at this trial it was dr murphy and dr pan who was the lead inventor and also he wrote the patent application and this is in our brief i fifty four dollars dr pan was asked did you ever consider lysine peggle ation as an option for meeting the goals of the k g s project answer i didn't think it was possible question why is it you never used lysine peg elation answer well if you look at a lot of what i wrote in the proposal back around and also a lot of that in the patent application i really never thought especially for factor eight such a complex protein with so many life seems it would not be a feasible way to make that work and then dr murphy was also asked a question there is no data and here the patent that shows lysine peggle ation have to be domain is their answer there is no data in this patent right so yes we do not have data that shows lysine peggle ation in this patent goes on question is there anything in this pattern that you're aware of that talks about relevant and shouldn't have been considered at all and so that was also a legal error i believe and trying to find a basis for the unable man finding and i would like to at least mention in the one minute or so i have left on the damages are brief i think the brief very very clearly goes through what happened in the damages however i would i would summarize our position in part to say what happened here is the expert had an opinion before trial of one reasonable royalty a single reasonable loyalty that opinion was excluded on a daubert motion but the rest of his analysis was allowed to come in and the opinion went from one reasonable royalty which the expert was not allowed to testify about two saying that the jury could just pick speculate pick any loyalty between five and forty two percent and it was clear legal area to permit the jury to speculate in that regard and as i said to i think our briefing goes through that in a much detail and cites to the record and you i understand thank you i'm sorry what i was saying is that the district court recognized the doctor donkey performed a substantial analysis to determine the end point and work of assessing all of the evidence which is all it really needs to do indeed under the pallid case this court has determined that range giving the jury a range is just fine and in fact in other cases  as apple smith kline and food you photo this court has determined that a jury can come to a reasonable read of royalty on their own based on the record as a whole and even reached experts rates so that's exactly what the jury did here dr don he testified for some sixty pages of transcript as opposed to their expert dr rouser who gave very very testimony some twenty pages and so it's very clear that th is was that there was substantial evidence supporting the jury's damages verdict  and they decided that they were not going to emphasize or put in much evidence at all and enablement have to make decisions on how to allocate my time in a jury trial we had fourteen hours and i don't again what happened is mr donkey gave an opinion that the reasonable loyalty would be twenty three point seven five percent which was the midpoint between what he said was the bargaining range which went from five percent to forty two four percent correct that's not what the jury did and so what happened was in a daubert his twenty three point seven five percent royalty was who was kicked out he was not allowed to testify to that because it didn't have any proper basis in the record but the important thing is the bargaining range was not a range of reasonable royalties and then his deposition which is in the record here he clearly said that it would not be a reasonable loyalty to go to forty two percent for example it was a bargaining range and he said you go in the middle what then happened when that got excluded he then said to the jury this bargaining range is a feasible range to pick any reasonable royalty you want and that's what was argued to the jury and they were given no basis for that what they came up with which was seventeen seventy eight that number appears nowhere and we were not allowed to cross examine dr a dank about the opinion he gave in his report namely the mid point being the reasonable royalty we could not cross examine him on that so we couldn't go to his credit we couldn't show his credibility or test his credibility on the basis of giving an opinion in his report which was completely different