where the identical issue was litigated and decided in a prior proceeding and that wasn't the situation here a case deal admits that it's semi process feel that the sum by process deal it sells to automakers and ships to hot scampers has both infringing and non infringing use it's at the time of the first case a case deal lets not being used to inferential so what obtained a judgement of not infringement the situation is different today and that prior judgement doesn't give aka immunity when it later sells product that is used to infringe and it actively encourages and induces it's not snowing the infringing product isn't it is selling a product that has infringing and not infringing uses and then change from prior well we believe the composition of the sheet says has changed somewhat and you're correct that matters only after they've been hot scam so in that sense nothing has changed but what has changed and what's crucial is that the sheets it selling today are being used to create infringing products that is they are being hard stamped which is the thermal treatment step of these products by process claims and they're being hot stamped into final products that e exceed fifteen hundred meg a pass calles and ultimate tensile strength and that's the key difference between this case and the selling a product that has been made using the process step spelled out in the claim so you if you have direct infringement i think it's the same as inducement in any other case your honor if if a part in this case the defendant eight k actively encourages or directs or participates in having the infringing steps and the product produced it's an inducer we have the extra element here i think that i think h k could also be liable  haven't do something from here here so we have it your honor aka isn't selling you know raw material into the market with no knowledge or no involvement in what happens afterwards ha promotes and markets its product to automakers to relevant to inducement and we got cut off here without discovery to pursue it further but let me let me expand on that what a key it's doing here is they're actively promoting their coated steel product to automakers to make specific auto parts there's a brochure in the record which is cited in the briefs where it says here is also loom this is our commercial product it is designed to be used for hot stamping when it's hot stamped it can it will have a tensile strength of fourteen hundred m universe yes what has changed is that in the prior case and i prefer the court just by way of example to appendix pages ten sixty want to sixty three that's testimony from the prior case where i think it was their research  research manager said you know what we've got as of today if we have a prototype product we send it out to a prototype type shop or some sample how testing not to show whether we've got a viable product but just to make sure that it behaves properly that the coding doesn't come off and then we've got to do further testing and refinement to have a product well today they have that product and they're selling it to automakers on the representation that it will meet specifications that called for and followed an argument with the interest nothing has changed to who spec to which you claim to be the infringing limitation here is what has changed your honor what is change is today the hot stamping is being performed and it is producing parts that they are and there's no serious dispute that the parts of directly in french and it's always been understood and it's conceded by aka when they say can can be used for infringing and not infringing purposes that it can be hot stamp to achieve fifteen hundred meg of pascals or higher what's different today is that a k is actively promoting it to meet automaker specifications that call for an ultimate tensile strength above fifteen hundred and it's it's entering into arrangements with the automakers where not now i started to say least in your view in this case is that there's now evidence to support that there is actual direct infringement by somebody the prior case failed because there was no evidence of infringement by anybody of the fifteen hundred limitation exactly your honor and then now we have a look at what the hot stampers are doing and apparently there is no dispute that the products being processed into about fifteen hundred a week some instances and so your view was that you should be allowed to re argue because there's a new product out there or centrally being produced by the hot stampers that they induce that that's exactly right your honor and think about the consequences of the contrary view you could have a situation where you have a product as is made in this case that has both infringing and not infringing uses the defendant could kill you ask you this sorry to interrupt you but it just occurred to me you know forget the question i don't ask it puzzles me a little bit about how itself has to performed all the steps now the issue wasn't squarely presented there because there were there were multiple actors but with that caveat i would think that the final product as long as it was produced by some in some way really matter that much because if you can actually show the fact that you're inducing in french under that kind of in here you know a direct plea for and by making it wouldn't that same kind of standard i mean you have pretty high standard agreement to a common security area interests and that's one thing not necessarily knowledge of the patent or an intent to induce infringement just an attempt to produce a product and so i can you can imagine situations where you might find that there inducement but not join an enterprise infringement and vice versa but what i started to say before is the contrary view would say that word defendant produces a product that has both infringing and not infringing uses and it tries as hard as it can to induce infringement goes out promotes it explains how to do it and all that but in its first case it actually fails that the its customer doesn't succeed in infringing under under the defendants you then it's got well i don't think so your honor because the automakers in french as well so it's not like a case of trying to induce infringement by somebody that doesn't infringe because they're using and infringing product that they get it from the hog stampers and also the the way this works is the automaker purchase orders and they're in the record so say they don't just say you know some piece of steel they say semi steel for this specific component say a door pillar pursuant to this this specification it says is this is the specification for this auto this component of my cars it has to be a hot stand the usually say press hardened which is the same thing it is to be made from pressed hard steel with these chemical composition which corresponds to both our product and a taste product and to you know formed into martin site crystal and structure and all of that so it does i think the answer your question is yes if i understood your what they seem to be citing is our discussion in response to their original source of contributory infringement that even if mark seal were capable of infringing uses there's already been established substantial not there is no evidence saying what sue basis for your statement that there's thousand and fourteen but no auto parts of any kind has been identified or reduced by a plaintiff here above fifteen hundred made from our steel we've been through a litigation already and that's the key point here there's nothing different we you're saying that you're getting up and talking about the fact that there is no proof of direct infringement even today but there was no discovery allowed into that question and you are going to do the research about it because i may have to hypothetically get one of the commercial strength even greater than fifteen hundred megabits ago that that would not create a material difference i don't believe so your honor i think the risk because our conduct would be the same as what was litigated last case we would still be manufacturing the same product that correct if they purchase our steel they select a hot temper and they choose the application that is correct your so at least indirectly doesn't tell us that it's in excess of you know it depends on what the autos what the automotive manufacturers are choosing to above that that's correct your honor have you ever sold steel procession to cation or a specific car that has to go about fifteen hundred as ever there was we don't sell the steel for a specific part that an i pod let me try to explain how this works isn't the problem here what we're talking about is the fact that we don't know any of this because the district court relied on an improper sample basis and didn't allow discovery and i don't think so you are i think the key here is our commercial activity is exactly the same as before it doesn't end user you didn't encourage or anything like that you want there because the specific evidence on whether there was a directly infringing product showed that there was no directly infringing product here the facts have changed we have no idea use and they were selling to the very same specs but there was still a failure profundity deuced it was still a judgment of no inducement what we're doing is exactly what brainless says we can do which is engage in the same allegedly infringing commercial activity of marketing the that i don't believe for you i think what we advertise it to is that it will achieve four hundred above we show parts that would be satisfied with our steel but it's up to the automakers who set their own specs when they buy our steel the fact you do what fifteen hundred they did there was discovery on whether or not we assure up to there and the cost link was that we do not are sure about fifteen hundred appendix six thirty seven one thirty one twenty one one thirty two one we actually represent that our product will fall within the range of searching under to less than fifteen hundred so in fact there was discovery on that question and the testimony  to the steel we're selling the commercial activity is exactly what was found on infringing in the zero five zero case we needed some point to have reposed this is eight years this is the going on we are seeking repose in this case with the evidence shows us we are not inducers we sell our product to auto makers the auto maker selects a hot stepper so that the hot stamping process that's all in the record they themselves admitted in their blue brief each commercial hot summer uses its own process with  are all in the record there are many parts that do not require a huge yes above fifteen hundred the ts range there is a chart at appendix seven hundred seventy three and you'll see many parts are down around thirteen hundred and you know somewhere around fourteen hundred there's competing benefits to each stuff as i understand it and i'm no expert as the strength is lower typically the former ability so they hire so that there's a greater ability to perform without breaking but but by designing an event is that there don't sure about fifteen hundred but it's up to the automakers to decide what to do with our steel all we do is market our seals to the automakers telling them will meet the chemistry of the specs it's been qualified they understand the properties they select who's hi said how it's hot stamp what parts are made from it no part is a deuce here any evidence of direct infringement that there is a part out there that was made from a case field steel that hasn't just about fifty hundred certainly commercial activity without having to once again be in court facing exactly the same patents and the same fund thank you once there's no further question put in declarations that general motors provided information concerning steel of change from a k that was hot stamped and went up the u t s one above fifteen hundred that's appendix for sixty to sixty one and thirteen sixty two to sixty six pardon me there's also the ford parts that judge wallach i think you referenced at fifteen hundred we don't know whether that's a case deal because we couldn't get an answer to that question over excuse me pardon me kind of bit of a cold but we do know that a case sells for all ford uses including that one on this notion that it doesn't represent that it's steel wool will reach fifteen hundred and appendix page six forty and then there's a question well don't you and this is following testimony concerning the ford specifications including the fifteen hundred ones at six forty transfer page one forty two will go into a half dozen a case you'll have to me that specification for the ultimate tensile strength of the final product we have to meet those specifications to four true there were no certainly no completed sales to any any any auto makers and you see the scoring relationship too large i believe we did seek some ban but of course the relationship is different now because sales are actually occurring products are not your honor because the conduct to date is different there were no sales there were no problem there were no hot stamped commercial products back then there were no products to reach fifteen hundred all of that is different today this brochure that we've been talking about that came out after the last trial that was where with a safe we can reach fourteen hundred and above if you have stamped it you can make these parts so it's completely different now we sought that discovery now by way of the fifty sixty declaration and we weren't allowed to get it so your hon entitled to discovery into that one final point this notion that they're not sure whether their skill can reach fifteen hundred part from the fact that they represent that it can appendix page seven o two the same research manager be over fifteen hundred yes it could and moreover in their brief it page fifty seven they say it can be put to infringing uses it could only infringe if it's over fifteen hundred so this notion that they don't know and it's a complete mystery whether