medical this is a case where a jury sitting in the eastern district of texas after hearing all the evidence in the record concerning the invalidity of fletcher's finds patents properly reach that issue ever having been told that if they find no infringement they should not go on to the issue of a living correct certainly we don't disagree that the verdict form included a stop instruction after the infringement questions but the oral instructions that the say that the oral instruction said the same thing as the word exactly the same language would you have an argument here that i think well that's obviously not the case we have here i think it would be a closer issue but i still think in that context that the seventh amendment because of its very strict it strict rules concerning waiver would compel a decision on our favor and here's why this is not the normal case where a claim is submitted and there is a withdrawal of that claim or a formal withdrawal of a jury demand for instance under rule thirty nine there's no dispute here that none of that occurred right there was never a discussion even during the charge conference even opportunity to do and did and therefore they agreed well absolutely we i'm not going to stand here and say that we have checked into that stop instruction in the verdict form by the same token flexi is fine certainly mistakable waiver which is what the cases under the seventh amendment require but that's not what happened here and just to take a step back so before the jury returns with the verdict we have at worst for us an ambiguity in the instructions that were delivered to the jury because the oral instructions were very clear you must answer this question and sure there was the stop instruction that was in the verdict for now remember what happens the jury resolves that ambiguity in our favor ok at that point the seventh amendment required the district court to accept the jury's verdict the district court does something different without giving counsel an opportunity to discuss the issue without giving counsel an opportunity to object which is the opposite of what usually happens when the jury comes back with a note or anything else where there needs to be a discussion the judge orders the jury to a race it's answers to the invalidity question i've not seen this happen anywhere in american jurisprudence fletcher's fine hasn't cited to a case th inconsistency defined broadly is let's assume as they said there's no issue about what for instruction from given all you have is the verdict it raises a question of like what did the jury really need to do that did they really consistency i don't think so because the rule right that the district court itself cites is that if there's any view of the case in which the jury's answers can be viewed as being consistent you have to accept the jury and they find not infringement and then they go on to the liberty isn't that an inference distancing that's an inconsistency with the the directive in the verdict form and that's not right i mean i just want to be clear that when i'm answering these questions this is assuming counter to the facts in this case that essentially we had agreed to give up the ghost on the invalidity claims and part of the entire premise here is that we didn't do that that there was never any suggestion that we were withdrawing the counterclaim and in fact the oral instructions that went in without flexi spine's objection were very clear that you must answer both of these questions are you familiar with our case in a circus i'm i'm i'm not sure well i mean it's three courts address the situation i mean if we're now in the kind of counterfactual context where there was nothing else in the record you know the record is clear that we were somehow kind of agreeing to not have the jury address the invalidity cla could we then force the court essentially to adopt the invalidity claim i mean there are certainly cases applying the nance rule in our favor basically saying that you have to accept a jury verdict if there's any view of the case in which the inconsistent answers can be reconciled even when those inconsistent answers are not or somehow deviating from the instructions on a verdict form i mean that those cases are there in one case that actually came out after this appeal had been submitted idaho gulf partners versus timber stone management that's twenty seventeen west la three five three one four eight one and that's a case where that if it's are ok it's not it's a district court case but this is a very rare situation we were unable to find any case in which edge in which a judge actually told the jury on facts that are similar to this one to actually go back and race answers on a verdict form especially when the jury did the right thing he did the instructions of where our cases causation the answers are consistent based on the theory of the case whereas here that's my situation and that's basically what you are well no i think it's a little it's a little bit different i mean we do point to those cases right but the questions from the panel have focused on well what if we assume that there weren't these oral instructions and the case was presented in a different way and it is true that our argument here is what happened there were the situation where there are internally inconsistent answers which is that's the situation that is presented in the cases where a judge resubmit the verdict to a jury so that is that is what we're talking about here and we're even in a better position because of the oral instructions and the fact that the jury did the right thing in the first instance the sum of the moment says if the jury does the right thing in the first instance you have to go with what the jury said but i don't understand why the judge has to accept  destructions on the where these are for right and even the district court didn't say well that was what i intended that was the right way to approach the case the district court's decision was premised on this issue of waiver and our point was that that that's not the issue because the oral instructions properly instructed the jury to address both questions i honestly don't think at that point in time that the issue was submitted to the jury that anyone thought that we were somehow subsequent sheo withdrawing the invalidity counterclaims from the the form and i form clearly says something different so and the court kratz whether or not there's an objection to that whether or not you're all ok with that and given that i mean what more clarity could you want ok there's different people say different things all through everything that's going on but why is that not sufficient to constitute a waiver it's for this reason that the oral instruction said something different you could say exactly what you just said you could say that to fletch is fine because the judge did exactly the same thing he walked through those oral instructions that were delivered to the jury and there was never an objection saying well judge remember that each of the invalidity claim is only being presented if there's a finding of infringement on these claims and that needs to be included in the instruction you could say that exact same thing so that the facts here are that there was at worst for us again an ambiguity in the instructions between the oral instructions and the verdict form the jury resolves that ambiguity in the right way by addressing the in the questions and instead of accepting that verdict which is what nancy these other cases would say it's what the seventh amendment waiver principles would dictate the judge does the opposite thing which is unprecedented telling the jury you need to erase your answers to those invalid questions even the district court acknowledges that the invalidity counterclaim is still alive in the case and that's the only reason why we get to the second part of our appeal which has to do with the judgment as a matter of law that the jury the district words in a bind because now that it's told the jury to just go race those answers it now has to entertain a judgment as a matter of law motion where there hasn't been a verdict so that even the district court didn't think that we waived the counterclaim somehow from the case because of course there was no evidence anywhere that the issue had been directly addressed in that we're somehow withdrawing the counterclaim from the case i mean i mean you know that's that's really what happened here the error that happens is not before the jury comes back right it's the jury comes back in our favor and they say look we are going to address the invalidity counterclaims because that's what we were instructed to do by the judge it's the district court at that time without giving counsel an opportunity to even comment on the matter says a jury go back role because i don't think that the that there's that there's sufficient evidence to infer the withdrawal of that counter claim based on the fact that in the or i mean we all agree that the oral instructions i mean our position the district court was that the oral instructions actually actually prevail over anything in the verdict form but even if you all view them all as part of the same kind of pot then you know that you can infer an agreement in that cont wave so basically there has to be just no doubt that there is a been a waiver of the jury demand has already theory and would that would be the case is if we would just say well the person that agreed to the fruit of fo understood that it didn't mean what it said or that he wasn't agreeing to anything in fact because of the oral instruction right i mean it's kind of hard to avoid that under any waiver absolutely not what will it be the theory you that we've you know in our briefs we characterize this as a mistake that's certainly what it was that the actual conference on the verdict for you know all the way through to the conference on the verdict form we obviously did not have a stop instruction in the verdict forms that we were submitting in the eastern district of texas it's a rocket docket these cases get tried in a very compressed fanner we had the conference i think right before we had closings in the case and we made a mistake and that's what it is or what but what what's your best case for the right to a jury trial is too important and usual for a waiver and the usual procedure for waivers to clearly set out by the civil rules for court to find a knowing and voluntary relinquishment of the right in a doubtful situation and just on that point to answer your question what normally would have happened in this context if there really was a suggestion or a thought from anyone that the counterclaim was being withdrawn from the jury's province as you would have under rule thirty nine you would say well let's stipulate that the counterclaim is being withdrawn well are you are you withdrawing it from the case that the question would have been asked and we would have said no absolutely we're not withdrawing this counter claim from the case but the noticeable thing about this record is that there's actually nothing other than that that line where we didn't object to that question is on page two of the verdict form there's nothing else to suggest that we were somehow converting the invalidity counterclaim into an affirmative defense after having presented it and after the judge  and after the fact jury instructions had acknowledged that it was a separate and independent claim that was being presented to the jury what couey says that you can waive the right if you're a problem of china i think the cases are pretty fact specific but you know the principles that are stated in those cases are very clear that you don't infer a waiver in a doubtful situation i cited jennings there's also the tray wrapping vs six l's patent company about it i do think that as the district court noted that you can have situations where i do find that would be a we're right but that's not what happened here is our point because the oral instructions everything else there was never any because any point in time in never any discussion like that of course if there were we would have said well no your honor we're you're absolutely submitting that counterclaim to the jury consistent with your own twenty struction i know you say these are summary judgment cases but there are plenty of cases in which case comes up on s what would that be different right because the premise of that rule is that if you if there's a finding of not infringement then to save judicial resources in having a trial on validity we you know it in and in a district courts discretion i actually think that the appellate court is sort of bounded in what it can do by supreme for precedent but the district court has discretion not to go forward and consider the claim for invalidity i'm not aware of any case where claims are actually submitted to a jury there's a full trial gird and then a court says well the jury's come back found patents invalid but i'm going to throughout this entire issue as mu that's just never been done and it's understandable why because you've already had the full investment of resources you have a full trial record it's in there and now the judge is saying let's throw that in the trash can because we're just going to have to do it again later and there's a real risk that we will have to do this later because you know even though flex is fine last this round our understanding is that they may come sue us on other products and so we might have to face these claims once again which would be really unfair given that not only was a full trial record created where the parties in the court invested these resources but more than that we actually got a jury verdict that was proper and said that these these claims are invalid based on overwhelming evidence and validity and that's really i mean in terms of the fifty motion that's the point of that really is look at these references this is a really crowded field of art where there are just minor differences between these references you don't and really we think that badge and as that rap edge bills literally you think we're not we're not really interested in the first hour oh absolutely or are you talking about the the jury verdict that oh yes right stephanie want to address that  one to make sure i dressed up the eighteen i'm happy to do that jury verdict first if you prefer yes i would like to make two points at the outset for that first of all counsel described the  judge's actions his telling the jury to a race it's answers and actually not actually what happened if you look at the appendix page fifty eleven there's that the discussion and the judge just says without telling anyone what the answers  and now you have a conflict in my answer to your question is that what the judge does with that conflict is within his discretion and in this case he exercised even under the hypothetical you posed he exercised the discretion solely within his discretion there has to be some clear waiver so doesn't the fact if the two are absolutely on their face inconsistent doesn't that that that suggest that there's been no clear wa agreement or failure to object to the jury form and of nat case it's not really all up to the judge in his sole discretion he has to conclude that there was a real waiver even though there's some tension between how things went down right submit that one he doesn't have to in that case find a waiver he can say this is in conflict but i am going to exercise my discretion my instruction is the jury as to which to answer in what order was as follows and has obviously disregarded his instructions on the verdict form now what does he do that's what's facing the judge and you can't do a replay you can't go back what if the jury had answered only the first question and pursuant to those instructions didn't answer the second act and so the judge in or take a verdict solely on the first question without regard to any other questions that's one possibility and so what globus is positi ng is that a rule that would apply only if the jury disregards that verdict form instruction and i submit that that type of rule is busy prone for mischief we just need a system that the jury judge instructs the honor going back to the hype that we posed earlier certainly i think he has discretion to order a new trial based on that conflict but maybe has to order a new trial he's given inconsistent  well your honor i would return and i know it's the needle stuck in the same groove but given the format of the instructions for the jury verdict form i would posit that he has the discretion to disregard who  instructions the oral instructions if you will and then there is a conference in which the parties counsel and the judge and the law clerks talk about how to talk through the off the record off the record initially its off the record and then the judge based on that prepares your proposed form and then we have a meeting all the heard and on the record the court inquires about any objections or discussion regard to his proposed jury instructions and they were known inject it but what i'm hypothesizing is that district court gives an oral instruction which is directly and consistent with the verdict form you must under all circumstances the side of the let's assume we  the oral instruction class way and that's inconsistent with the record you didn't object to that instruction and is not a problem for you i submit not your honor for the reasons that i've been alluding to i  you know what i'm saying your honor is whether or not to get submitted as a defense or as a counter claim is the purview of the defendant is globus in this case there were pleadings to support both of and whether to submit as both or is just one was not my concern it would not i would not object to that there was a pleading to support as a counter claim without a david i mean the district court and view them as having  i understand your question if you're asking me when he instructed the jury was he cognizant that this is being submitted only as a defense and not a counter claim i didn't i don't know what he felt but i doubt that he was focused on that i don't think there was not a discussion conflate one issue with another you must consider them separate i think that is as far as you can say what the judge had in mind if you then go to the verdict form when you have these competing for us and he selects a form which is clearly only for affirmative defense then one must decide at that point he's going to submit it as a form of defense to which the globus has acquiesced so i think that's the posture of the case when he sends it to the jury and now the applies to the accused product it's around and when you apply a force to a ramp it's going to rock go forward and it's going to go up but movement analysis of any sort requires a frame of reference if you say move to the left i have to enquire do you mean my left or your life i need a frame of reference to the same fact you need a frame of reference oh please two watt and the claim seventeen perfectly describes openly to the upper body and lower body in the party's agreement states respect to the upper body and the lower body if you pick any two points one on the upper body or one of the expansion member and one proffered by globus serve to invalidate is that the same as the final jury instruction which is that appendix twenty eight that's right so i think i think there are three key pages from the final instructions it's appendix page forty nine thirty five that's where the court says that invalidity infringement should be addressed as separate questions and should be answered separately by you the jury on appendix page forty nine forty six that's where the court says you must decide whether there is an invalidity here and critically i think the next portion to focus on is forty nine fifty six which is the next page over that's where the court gives a very clear conditional instruction as to damages the court says if you find that fleshy spine is prove an infringement of one of the asserted claims and globus has not shown that the claim to be invalid then you must consider what amount of damages to award to flex use fine i really think it's that instruction which makes this all clear because it's not as if the issue just wasn't considered how to do a conditional instruction it was considered very clearly and it was put into the final instructions when the parties were talking about damages as opposed to the substantive issues in the case and that's actually consistent with globus is proposed verdict forms all the way up until the trial the verdict form so what happens if you have a happens from time to time and the problem resolution is that you try to reconcile the verdict to the instructions that are appropriate now i don't think that it's just a question of the oral instructions and the verdict form  on equal footing for all the reasons that the panel has discussed there's just no underlying evidence to support the notion that globus was withdrawing its counterclaims that's the real point is that if we were looking at this in terms of what the right instructions are there's no question that the right instruction was that the jury needed to address invalidity as a counter claim which had been asserted all through the case we closed on it in other words what if the jury had come back and followed the instruction is written in the verdict form the first and so they come fair i think it would be a much closer case i still think that seventh amendment waiver principles would operate in our favor but right but that's a that's a perfect question because if that happened then really really would be in the domain of waiver our point here is that the jury reconciled an ambiguity in the instructions in the right way because of those oral instructions because of the way that the case have been presented and as the district court itself noted there had been no withdrawal of the jury demand under rule thirty nine like for all of those reasons the jury did the right thing and it was only the district court who came in at the last minute and said jury you've got to go back without consulting the parties and that's really what happened here and why there was already not something that he did that when the verdict form is judge who then after the jury came back sent told the jury to you've got to go back and redo this but to answer your question i think that the cases that we cited in our brief that talk about the reconciliation of special int tori's to some view of the case right that's the constitutional standard that's what's required as an on district court so when the when you ask the question well what do we do when there's inconsistent instructions this happens all the time you're supposed to reconcile the verdict to some view of the case so if there was if there was if we had unquestionably withdrawn our invalidity counter claim and only presented it as an affirmative defense but then the jury comes back and answers those questions and we say judge we want you to enter judgment on a counterclaim we'd have a real problem doing that right but that's not the situation that was presented here here at the counter claim is fairly presented based on all the evidence the arguments and the oral instructions the jury rightfully answers those questions and yet the judge does the opposite of what the seventh amendment case law requires which is it says you've got to throw out that verdict and do it over again and so if i could just i know that i'm over my time but you know i did want to talk just for a second about the cross appeal well if you respond to the cross appeal than your