imported parts did not induce anyone to do anything much less than cringe the invalid claims of the three eighty we start with the language of the consent accords order importing non infringing plastics primarily a belt clip did not infringe the consent order that then importation of infringing components that which was in french allegedly infringing was not imported that which was imported did not infringe the war furthermore did not and could again the claim has not been adjudicated to be invalid is that correct that is correct we had a pending we had a pending motion for summary judgment of invalidity in the in the district court which we're going to talk about a few minutes so  to go back to the active she and try to amend the consent order in view of the the trial court decision well we did not think that it was necessary either under the consent order or under the the rules and she relations provide for that type of procedure correct that and but it is not it certainly could not be excluded that is that we expected it to be certainly anticipated that under the consent order which said that it would not apply to any claim that was  purely legal issues that is presented to this court the is the same way that this court of vice vacated the civil contempt truly in the in the last case i guess the one problem i have with that is this isn't a civil contempt proceeding this is a civil fine pursuant to statute and even though it does carry the words civil in front of it what our case in the us explained was civil contempt would be vacated by a criminal contempt would not and what the supreme court said is united mine workers of the one nine hundred forty seven case which are the past decision was premised on is this a reason for that is because civil contempt is entirely compensatory remedial and that the other side shouldn't benefit with a big reward when in fact you have done nothing wrong and what they said with criminal contempt is it's punitive and it's all about you don't have the right to violate the court order and that if it's punitive because you don't have the right to violate the court order it should remain in place to tell me which of those two scenarios the civil fine articulated in the statute promote it's a civil penalty it's not and so it's even it seems a stronger case in our judgment than the last because it's not in contest is that the allegation there is that we were that we were in a violent in this consent order by importing these non infringing components too but it has to infringe there has to be infringement and so that without that necessary building blocks there can be no civil came by and i don't think we should have to infringe let's assume just assume for purposes of our discussion that i am ok with the entire six million dollar judgement that i don't agree with you on your arguments about a do stuporous but just assume that i want to focus on finale that's what i'm trying to follow is that i'm i'm trying to assume away a lot of your arguments which believe me i understand them i don't think i don't understand them turned assume those away and i'm trying to get to the point where i'm trying to figure out if they were right to confine you six million dollars and there was no problem with that face it there is all the other stuff if they were right to find you six million dollars does that fine disappear by virtue of a later invalidation in the district court of the claim staff argument about about the coverage of this paragraph of the consent order on the assumption that there had never been the judicial invalidation is that the it cannot a different argument from the argument that i think you keep making about how there's no infringement that is a separate slightly slippery right that i agree that's better but so it seems to me that the consent order language both this paragraph and the later language is about as close to perfectly ambiguous about the prospect of versus retrospectively a fact as language can be that is it a fact of a a in the lives of the judgement in another proceeding and it's perfectly clearly contemplates that you can go to another to a court and get an invalid in the judgment but it seems to me just as clear that it's not clear about what the effect of that is going to be whether it's going forward or retrospective so how do we figure out what the  that that was an interesting argument in your in your letter that says the only reason they get to apply the penalties at all to consent orders is that they persuaded this court in the san juan case that consent orders were to be treated just desist orders under thirteen thirty seven f to which is for civil penalties for violating thirteen thirty seven f one which in turn incorporates her to thirty seven and which then incorporates the infring that they haven't the i d c has not commented on that not my staff they were asked to take a position obviously chose to duck it's a safe to send it back to us we don't think that's necessary indeed the consent order itself just added a further gloss to the point i was making a moment ago which is in paragraph four of the consent or it says it shall not apply with respect to any claim of any intellectual property rights that has expired or been found or adjudicated in that the consent order by its own terms does not and should not apply to some extent it says final and non reviewable it's not even non reviewable after we're done with it even if we agreed with you on invalidity it still reviewable they could appeal to the supreme court so this apparent this paragraph you keep invalidation will only matter once it actually occurs and so you can't do anything until it's invalidated somewhere and as we know from the other case of the district court's jurisdiction is being challenged so what the message is which is a good deal more serious in that one of those trends a point just so i don't lose this point here that i want to make which is there is nothing that the lord could do other than just put itself out of business under the theory of the of that will you can you sign the contract and it's mostly interpreted according to the plain language of the contract and it was one that we proposed the fact that we would propose something that says it would still be valid it would still apply the rights even  result of that coming from the i t c was not known until the i t c baltimore born till we get through to the end of this appeal if the answer at the end of the day is it's unclear whether or not that vase you know invalidated in this patent means that we really don't have we can't be sure whether or not that that kills us the story or the other then we should come back then we come back to the rest of my  should focus on pretty much the coming around have with the accounts here i think we both agree that the contract language of the consent order should control here and also that looking up respectively that there could be no further violation if there's  is what is and i've spent a bit of time on this two hundred thousand dollars per day penalty possibility used to be ten thousand dollars a day i'm sure you know that it didn't used to be one hundred thousand and you didn't know ok that's fine but i went through the legislative history of it as well which i'm guessing if you didn't know it used to be ten thousand you also probably are prepared to talk to me about it but and it just seems everything about that fine is meant to be a punitive sanction for violating the consent order that's what i gather from the legislative history that's what i gather from the language of the statute itself and the i t c regulations and i was hoping maybe you'd tell me what the help you none of those seem to be taking into account the need to compensate the patentee for example right none of those factors is the injury to the complainant yes we do look at that oh yes but he doesn't get the money the government keeps the fine print to this isn't factors but i wouldn't want to put labels on about it what we see we have to go because we've got to decide whether the process of pi and e plus stands for the proposition that if it is a compensatory or remedial award then it can be vacated if it is punitive in nature it should be affirmed even though the tattoos later invalidated that the difference between civil and criminal contempt according to the supreme court so what i have now is a civil fine pursuant to a statute right so even though it has the word civil in it i'm not sure that label means it has to be vacated like mr brand is arguing i think i'm supposed to look at the underlying nature of it's finals issued there is no challenge to the consent order itself that cannot be challenged as agreed to by the town so that's different from the two different reasons why it's different from money plus and again secondly i think all  just affirm your six million dollar judgment why are you even asking us to vacate and remand what what reason is there they have not asked for a modification of the underlying consent order they found the motion and they've asked for no modification in this court nor before the i t c but there's a greater overarching issue here isn't there who just rather this is subject to review and all i mean we're a consent order what is it about the district court judgment that invalidate ballot and therefore you cannot apply a penalty to something other than infringement of a valid patent and this consent order who language leaves much to be desired to determine on its own within its four corners what it means should be interpreted to implement the background statutory authority under which this is different issues together you can certainly from the case well sam on a nine star you can treat a consent order as if you can desist order in terms of this is a commission order issued in the conditions civil penalties for your violation that the premise of all of this is that we can't tell the answer from the consent order terms so we are looking for ways to figure out what the answer should be because some can't figure it out from the term it doesn't do any good to refer to the addressed and if any can only be entertaining a motion to modify that can't be the end of the matter but the first question is whether the enforcement unmodified of this consent order through the civil penalty must fall without regard to modification of the consent order that's a separate question from modification and then you're asking a question just arose on appeal and i can't give you the commission to answer the commission's acts in all relevant parties there with all the briefing arguments we come to a final appeal determination the public can come back here they don't like that first determination your opponent seems to like what a bit of th invalidation though it may not be clearly does the killing what would be the point of sending it back to the i c c do we need the itc's interpretation of statute or we're allowed to interpret all these questions make it a perfect scenario to go back but it's a further unusual circumstance of this all occurred on appeal it just did not occur before the commission so the proper course would be if there are serious questions that have arisen during the course of the appeal again following a ph follow the case law on the terms of the consent order and going to the point in our briefing we do have privacy three of modification also includes modification of both the consent order and associates civil penalties perhaps again depending on the arguments that are made  what is your position since this is a question of law and the ideas you draft of the consent order what is the i t c condition or and what shall happen if a  after april first two thousand two hundred thirteen until the expiration invalidation or on in force ability of the three eight zero patterns so it actually says this consent order applies after april first  you're here defending an i c c consent order drafted by the i t c and you're not allowed to tell me that it means what it says when i read it you know the commission has a process we go through a briefing process we get to file the terminations is unusual circumstance where this came up elsewhere so sometimes it is legit litigated elsewhere and these are history within the commission of whether the commission to use what must be and all reasonably standard language as either white being out the past what would otherwise be violations or merely terminating the obligation to pursue to follow that terms of the order some will not shall not change i guess i'm just wondering to what extent it is or is not standard language that would be adopted by the i t c in consent order circumstances or did you have any sense of whether or not be one of the principles that if this goes back to the commission the commission might need to think about is the traditional principle of contract law that says all other things being equal construe it against the trafficker now it may be that the lawyers proposed the thing but the warmer had essential a no choice about what to put in it because the regulation says that consent orders may do nothing more than the following before that this regulation well there was a there was a provision regarding the content of the consent order stipulation as it was a motion for consent or stipulation which is granted subsequently you aren't going to interpret this thing beyond the context of what of the under the jurisdiction of the i c c itself there's no need to send it back to the i t c to decide a pure issue this is a contract that should be interpreted to know and they say we have to you have to show infringement of a patent and you go back and you go it was or infringement the answer to this one which comes out of the district court which is final as of you know when we get to a final decision there which is a much better case but in respect to the up the right to to pursue the edge ability only in front of any proceeding to enforce the the consent order that isn't any administrative or just judicial proceeding to enforce the not it wasn't that you couldn't do it  allopaths and that determination was still open because this case is still open as we sit here today and as we have and once you have a final judicial determination that the patent is invalid that means there is no way brand thank you very much for move on to the next