that statute provides a civil action for patent infringement which would otherwise be appealable and as final except for an accounting then this court has jurisdiction applying the court's framework for analysis first set forth in the case of some decision some years ago by judge newman the first question is is this a finding of infringement here the district court in contempt which is this court's precedents of indicated in k s and l m k necessarily judgment is not appealing your honor i would respectfully disagree you disagree with this when court case no i disagree with your interpretation of the state of the situation here in this case there has been a sanction imposed in effect attorneys fees and damages have been awarded the quantification of those amounts have been left for later determination and remain pending ramzan finance regime i'm sorry what happens if the qualification is zero  certainly there's been a sort of thanks in effect because because there's been a finding of contempt and that bridgeport has been laboring under an injunction for the last eleven months but could you answer mr clinton just clinchers question you had the contempt border and then there's thousand six the order there was simply an order from the district court directing the defendants to answer questions and produce documents they had there had not been the next step of them refusing to answer and being held in contempt and that is i'm sorry once the punishment is issued then it becomes personal there but in the case there had not yet been and that was what was lacking it was one step removed from the situation here in the end in that case in  certainly be in the two there'd be no question about the fact that the court's decisions in k s m and the statement n l m k indicate that question what's going on right now just because last year there was contempt with the now what's been going on we're still in the midst of briefing on the issues of the amount of quantification of damages and attorneys fees so eleven certainly would like to have your appeal hearing you like to prevail never having had to pay a penalty or pokemon i can understand that and that's what twelve ninety two c two is intended to do i mean and if if if if the action is otherwise appealed but if you take away the issue of damages just to me the issue of just leave aside the issue of damages and so there was an award of attorney's fees not quantified then clearly this would be immediately appealable under twelve ninety five that's how this court in your hansen interpreted it majorette and in light of the rape halo decision in recent decision from the supreme court which adopted made it clear that distinctions should be ignored in favor of an approach that looks only to the character of the issue that remains open after the court has other writers ruled on the merits of the case so but for the damages if this was just a decision where there was a finding e but for the existence of the accounting the calculation of damages then this court has jurisdiction now and the purpose behind twelve one to see to is exactly this the type of purpose that should exist here there's been a decision finding of contempt issuance of a new of a broader injunction and we're now twelve months almost programs to move without a determination of attorney speed a calculation of attorneys but i think that there that case the jurisdiction was based on there that there was no modification of the earlier injunction it was a twelve ninety two c one case sure but it's still pretty broad statement and contempt cases i think it's making the distinction between of the of the jurisdiction or to of money to see to i think that the that the able case here the difference is there has been a sanction imposed it may not have been applied to the it did not address to twelve ninety to see to it was focused on whether there'd been a modification of the injunction under twelve ninety two c one and while i think that there clearly was a modification in the broader injunction here other than for the determination of damages this clearly would be a final decision and i don't think trying to draw this line  to look at the fact that this court has extra jurisdiction under twelve ninety two c two eleven can i ask you about that because i find till monday to see to be kind of an unusual provision because it allows for an appeal before a final judgment which is typically the role in all other cases we would hear you would have to have a final judgment including damages so i can see congress is created for patent cases a special provision so you don't have to get to the accounting you can come up immediately but it could temper seating is a test it is a contempt proceeding can apply in any kind of injunction and so why should we be looking at a special patent provision and said the general supreme court law on when a contempt order is fin because this is a specific contempt finding in a patent case this in necessarily involves a finding of infringement once there was a finding of contempt why i understand that but hasn't i what i'm a little concerned about is creating a rule for applying general principles of law particularly with regard to i think there was an injunction case a number of years ago the twelve need to see to is a is a specific situation for this court i mean if you are i everything but attorneys fees this court has jurisdiction the argument being made is that you should draw a distinction between contempt cases and nine to ten cases but in patent cases where it is a separate proceeding that is created  construction and expanded the scope of the injunction to cover not just the method covered in the forty eight patent but the products and the committee that's been one of them because it's completely expand the scope of the injunction i mean there was never previously the limitations that were brought in the issue in this contempt sitting were never an issue before they were never construed they were never even raised by the parts here for the first time as a result of bridgeport's new and different the oh i think that i you know i think that here where you have a new claim construction and then the injunction is broadened to cover products and a method at but but in the injunction to cover all colorful imitation and the claim construction was started that it may be that the clay construction is wrong in it it reads something that's not a colorable in imitation but that doesn't mean the district court was was modify injunction he was just and properly interpreted has been done i think that i think that when the court broaden the injunction to be directed toward the products and not a message so that bridgeport can't even practice nine infringing methods that is a broader injunction it is a modification of the injunction you agreed to not that the note the colorable limitation language but but with respect to a method patent now the terms of the injunction please support captain clinton on behalf of the apple e and patented arlington industries the fords are absolutely correct in the questions asked to my opposing counsel and that the fact that there is no jurisdiction here where the underlying district court order was a contempt order finding it choose connectors simply to be colorful in the patients of the original enjoin infringing connectors and to be inspired to be infringing that pat to award sanctions and they're not limited to typical just you know the damages under to eighty four and or attorney fees and in fact obviously we're not seeking under a statutory provision we are seeking attorneys fees and costs that are awarded damages and attorneys fees were bifurcated in the wilfulness determination yes it seems to be that's the court's ruling at this point that under twelve ninety two c two in a regular infringement action not in a contempt for seating the fact that there's still attorneys fees or lost profits awarded would not deter this court from being able to hear the underlying merits of the case however in this case and in all of the cases we have been able to find there's not a single case to date from when the supreme court or any other circuit that has found that a civil contempt order is appealable before sanctions have been meted out and the court that the case that judge governor that you've been you've been discussing with my putting counsel is the alexander case not andersen case just to clarify and in that case actually the holding was that there was a civil contempt that the actual witnesses were found to be in contempt they just had not been fined yet so contrary to ford's arguments there was a finding of content so they were contenders but the because the finding that the products were deemed to be color limitations and there was no no sanctions had actually been imposed not that is absolutely correct however although it's not binding it is under this court's rule thirty two point one it is actually still persuasive and it actually relies on two cases which are receipts to the one case relies on the integris case so for example for the her and you don't actually have your punishment meted out most are talking about in terms of whether or not an injunction has been modified as opposed to and for those earning a law that says i'm supposed to be careful and i'm assuming when they originally injunction which in this case country get close encounters arguments that have been absolutely no modifications to the injunction is verbatim the same language that was used before the only thing the court did as we listed in our brief we showed you another situation where my product does enjoin or we're talking about infringement of the method by which so clearly on different current place i was one hundred yeah dinged that the only reason why we're not talking about the here and re briefly review judicial resources so that's why i'm asking whether there's any notion here that you should say well if we case looks a little bit close go ahead and say  bridgeport's that there was maybe some issue and then in the court wanted to have more facts but the fact is that under integris and i mean and i don't think really i mean subject managers fiction is as you said it's a threshold issue so the fact that you can't fine having a claim construction in a in a contempt proceeding is absolutely acceptable and in fact the only thing that all the court cases have said especially muriel which is the most recent and the most on point is said that we just have to ensure that the  unfortunately it's not correct that they have that they're not opposing i mean they're they're opposing sanctions there's been no word in fact my client doesn't even have the benefit of a bond so there's been absolutely no warrant against them to say that they've been sanctioned it's not true they're subject to the same injunction that they were subject to since two thousand and four the fact is though they've just been ignoring it they have been found they're ready to be in violation of the settlement agreement that this same injunction was issued from and this these exact products actually were already found to be infringing and  can't we look beyond the words and say that there is a modification to reasons why that's not true your honor first of all course that never was the previous construction of this term but that doesn't mean that that taking the word cylindrical and in coming up with a definition of it somehow majorly expanded it is this argument about the fact that it's now going after products services the method again that's not true they always in few look at the original injunction they always agreed to not  sell or office for sale so the the original injunction even though the method claim was against the sales of the product so this is a collateral attack that they're making on the same exact language and the time to appeal to all no no but in fact is just the language of the injunction so the injunction language does not change but they actually were enjoined from and basically there is no not infringing and there is no non infringing use of these products in fact we put on a strong case of indirect infringement and they did not actually put on a single defense to indirect infringement at the trial they actually based their entire defense on their claim construction and their colorful imitation defense so the fact that now hosts in fact this is something that's going on in the district court today is that they're actually trying to argue  now that there's all these not infringing defenses we had four days of hearings they did not present a single issue on that so that's again a very questionable argument but as far as the words of the injunction and out of the controls and unreal your honor doing a claim construction of not this does not mean that there's been and in fact in of all of the case that you raised doesn't mean that there's been a modification if this court would like to hear about the merits i'm happy to talk about the merits because we think the evidence was overwhelming and you know we'd be happy if there's products were colorful imitation the evidence is overwhelming to show that they had had the same substantially the same function achieved stenciling the same results and bridgeport experts and their arguments against it as the judge noted were very were inconsistent and not basically they changed their position and really not credible and so the court did not clearly erin finding that these products were callable imitations and infringed the patent as properly construed now with major modification is to the cylindrical seven minutes but the fact is the reason why that should not be an issue is that that would basically put the hand put the question of anytime the the accused infringer and that and accused of violating an injunction in which to try to come up with a new thing but really under this court's mining and tivo you just basically you have to look at what were the features required to prove infringement in the original case and determine whether or not there was a mistake my guess i'm just wondering if there a case and muriel case and all of those cases they run raise the issue that there was a new claim construction and the fact in fact they were construction on time when the yes and in fact will because really there was no point construction in this case that was they consented to here we had you know figures and bridgeport argued that they didn't surround the same that they disagreed with what surrounding was but if you really look at these charts that were there and actually if you look at bridgeport original position here in this case they didn't ever dispute originally up until the hearing that the exxon a clinical surface was everything forward of the flange excuse excluding the let it was only after they realized that their own witness it mid it that his new claim construction now was inconsistent with the finding of infringement of the enjoin connector that he then changed his position to say oh there's three external surfaces which of course is is not relevant enters it's not supported at all by the patents and that's why the it says it can mean one or more it doesn't have to be required to mean more than one obviously so that's what the judge pointed out that that was one of the things where they really were inconsistent in their position but just to end one one going about the  about the jurisdiction your honor is that one of the reasons why this the supreme court and in the other circuits have always found and this court found in alan kay is when you don't have a map you don't have a modification to the injunction because it's basically the same language same products that are being accused and they were always required to not make color limitations of the enjoin connectors but more importantly is that arlington has not actually been awarded any of the sanctions that they're entitled to and the innocent party in this case and therefore we would ask the court to set aside and and let the court and the district court finalize its decision on sanctions and we will be back here on the merits thank you  really appealable when all the remains of the counting of damages the only difference here is that there is also the determination of attorney of the qualification to return speeds and under the race how it treats and the other decisions no construction of the two limitations an issue here and it did not say you cannot sell this particular product our new new design  here if you look at page a thirty twenty nine thirty two the injunction is much broader it says basically we can't sell we're permanently enjoined from selling these products that's broader than anything that any reasonable a three six four zero to four three the original injunction order enjoying you for making using selling the old connector the original injunction the language was the same language that was used for method patent and enjoin the sale of products you have to enjoy not in the us but i mean it was a settlement you agreed to it even if you could have been ordered that under a judgment if you agreed to a settlement that said we agree not to sell these products which i'm looking at the language of induction it pretty much says that you agree not to sell them and you agree not to sell colorable imitation i mean that's what you agreed to but we didn't have the construction of like we had here of limitations that were never in it well isn't that i mean isn't when you agree to colorful imitation sure opening yourself up to the district for deciding to feature a product may be a colorable imitation plain construction you might not agree with as used in the method but you have to have notice for in effect some idea of what you might be violating in contempt and when you have a completely different claim construction if i might say where the district wrong here on the merits is once it failed to apply the indefinite article rule wrong under this court since it is in international rectifier and in the anchor role thank you very much