between the source and drain electrodes now that's what the district court limited it to was but remember this was a method claim so operative semiconductor is a layer that's put down over the entire area where the race going to be like a gate insulating film is the boundary the jiffy is contradicted by the specifications expressed in disclosure if if if the court were to look at the yellow box on page thirteen of our of our brief which is which is a representation i think for yellow and in fact when the district court limited operative some a construct conducted only the material inside the four lines of the t f t it then had to rewrite claim for because claim for says form operative semiconductor silicon was absolutely no recitation no limitation whatsoever that it had to be only in the d f t and had to function as a switch because as i said earlier the specification disclosures areas where it wouldn't functions with respect to the judgment the court restricted the plain an ordinary meeting of him to require physical inclusion within the material of both the semiconductor layer and the on the contact letter the court just restricted interpretation of contract that is contradicted way when usually occasionally the specific nature of the physical relationship is always dependent on context and so if we go to the special occasion the special occasion makes clear that this claim for east means of the channels within the limits of the only cont articulated it so there was the final answer without a lifeline the answer is judge it's a challenge clearly within the limits of the semiconductor layer and is located within the limits of the only contact lens that's that's the final answer what  i wanted because i thought now it sounds like you're using the word in the same way for both the only contact layer and the semiconductor whereas i thought part of your argument has always doesn't mean is it doesn't mean in both instances basically included within material that's the end of the all of this kind of machinations come about as a result of the fact but i thought you agreed that's true that it means that correct so when i'm sitting in my family room watching t v i couldn't possibly know one would say i'm in my family room and i'm in my garage at the same time nobody would say that's true because you because remember this is this is a locate this is it locational proposition ok but if i were to say your honor you are in the reflecting pool in the city i know that you're immersed within the water of the pool but you're in the town of d so it's always kind of contextual and i think the best way to look at this you're irish is if during the prosecution history the way this came up was that the claim was originally written that it was a channel in a semiconductor all right and  on page twenty four and if you look at where the channel is a warrior it extends beyond the inner limits of the only contact lens and so to distinguish over moore at the show that we have the  primary reference that always been the admitted prior art because well that was one of it but but then the examiner comes up with this more of a remember just remember the invention has to do with what the channel looks like at the ends kind of a dog bone at the end what we're talking about is if you took a cross section of the look anymore it doesn't have a channel and only contact layer because it's channel extends beyond the inner limits of the only contact layer which contradicts column two and column six of the pad and in with if you look at the figure you can see that the channel comparable and in fact if you look at page ninety one eighty three you look at mark specific comments to distinguish more  mean physically located with a need of the material correct because remember the only contact layer if you look at the picture is actually a conductor it's because those are the two electrodes and so if the only contact layer is is if there's if there's a channel in the only contact layer the switch never t off it's always going to be on it doesn't work it has to when they make this process they have to eat through the only contact layer down to just at the channel layer and so when they talk about in the only context later everybody all the expert the more for silicon layer to twenty four unfilled transistor to thirty includes a challenge and two thirty four which over lies to get electro to twenty two and extends from the inner edge of the only contact to thirty three a was and then denied institution but there was no dispute about this aspect of the claim there was no claim construction dispute for the i p r about this aspect the claim this structure was eleven eighty two eighty three where they quoted this very claim that the nation they saw what you were proposing and what the petitioner was proposing and said neither of them makes sense and then it had a long footnote explaining well the prosecution history that you're formed to do and where it's not clear to us that that requires a certain understanding but again one of the things that are pointed to was the fact that during the prosecution the claimed instruction had  but there's no support for doing that and they don't point to them let's hear from the other side like you know film however the specification is very clear when it talks about what the operative semiconductor is it is that film after it as spend patterns and when it has been patterned the five through sixty seven and it's talking about this process step after you've laid down the silicon film and you now mask it and then you etch and what the what it says is the pattern four and that is the pattern silicon film it is not the entire film laid down if you look at claim one it distinguishes between films that are laid down completely such as the substrate  ielectric or the protection film at the end from those structures which are formed the gate electrode the operative semiconductor and the source and drain now i want to just go back  which is dependent on claim one and it's only distinction is where parties agree that where is the location of the operative semiconductor when you look at the claim i believe th believe it is similar discussions when it talks about the second environment but when it comes to usage of that coin the term in reference to any of the figures is the top of column five all we have when it's discussing figure five i think you have a similar discussion when it talks about three years eleven if you look at figure five yeah it is if you see element one which is the gate electrode yes if you see next to that is element six which is pointing up to a it's the you shape right it's the rectangle with a bite taken out of it and that is the what it's referring to as the operative semiconductor and as you can see what  electrodes and not be anywhere else or simply that it has to do over the electrode the gate electrode even if it also extends beyond it has the operative semiconductor has and i think i'm not hearing an answer to the question that was in my mind whatever it might have come out of my mouth but i guess it would so why does it matter even if they say you shape thing extends both to the left and the right  claimed for requires that the operative semiconductor which is which the court said over lies the gate but also connection contacts the source and drain and that's clear from the next from the extends beyond the gate of life that would it not be fair to say claim for doesn't care whether it's formed only where the gate overlaps only it cares only about whether it is formed there believe what their argument as i understand it is and it's shifted over time is that as long as you have an operative semiconductor in a t f t somewhere if that if there is silicon film at the overlap of the source and drain even if that location it acts as an insulator and not as part of a operative device or as part of a t f t but that falls within the scope of the claim that's their argument because that's their infringement is yes we agree the t f t is not at the location of the overlay you're also stupid as that it well in lines up with chef america if you look at the original claim and the specification there was no dispute and there was no dispute  and the specification says that that channel is in the semiconductor but it doesn't say that definition then say it's in the only contact layer and all the portions of the specification that appellant points to talks about the channel being in the semiconductor layer and between the edges of the source and drain or extends from the source to the drain and that's significant because in chef america the court is part of his decision where it said yes this is impossible but that's none the less what we were left with found that during prosecution when they got the rejection they had a choice they could say it to the temperature or based on an example in the in the patent they could have said he'd asked the temperature and they specifically chose he to and the court said they had a choice the specification like the specification here has a way to describe the channel with respect to the oem and contact lawyers but in chef america just says here why would a skilled artist have the thoughts that they were claiming something that everybody recognizes to be nonsense there's nothing there wasn't anything nonsensical about chef america so that case is different on that ground so it was nonsensical is it because you don't heat the the dull out of four hundred degrees you get of charcoal briquettes that was the whole purpose i think of the finding in chef america that this claim didn't make sense it was nonsensical because you what you wanted to do was the eat the oven the four hundred of whatever the temperature was so you could make up whatever it was that they were baking into a particular thing but if the court said we look at the the language says it's plain ordinary meaning i believe in and supported by the definition of channel it then went to the prosecution history and said you had a choice and there's language in the spec here and there was language in the spec there you could heat that you intentionally chose the wrong one and then they dealt with the expert testimony and so the expert came in and said well this is what it means and they said well but the experts not dealing with the with what the words in the claim actually say and that's the same thing here yes it's impossible they even said it was impossible during claim construct but that's what the specification says and when they dealt with it in the prosecution it's three they did not clearly say we now me in to mean something different and until argument today their argument was in in the same place in the same claim meant two different things one was physically and and the other was bound by and i believe as any case that this court is hell where the same word in the same place in the only contact layer and in the semiconductor where that word in in an in excluding that testimony the court correctly found that hampton failed to apportion damages to take into account the infringing features of the product as contrasted with the conventional non infringing features and the court also found that he derived his royalty rate from an unreliable starting point namely a license offer made by mike's on the eve of litigation that covered three hundred sixty four patents and that when i rejected and never apportionment was done for example by both of the economics experts on on our side that the patent issue in this particular question is the one to seven patent which covers the frame that holds the distinguish between the inventive features of the frame and the and the conventional features the frame they didn't come up with the idea of of the plastic frame itself so we have both of our damages experts did things like looking at the cost savings associated with various with screws that don't have to be used or glues or labor time that's easier to snap together they're different they're different ways one can and one can look at that they also looked at the profitability of this particular component as a part of the overall price of the television and at least one of them considered other licenses of sort of similar technology so i think their number of different starting points when you get what you mean by look at the profitability of this component as part of the tell them well i think that there were well i think that there were analyses done but if you consider for example that there she was expert mr lewis as a starting point he took you know you could you can start you can come up percentage of the profits of the television that can be somehow a portion to the frame but i guess that's that's to the point that i guess a friend that translated to something that that i understand that sounds like a clip like a like a conclusion not like that here is how you would figure that out well i don't i don't have in front of me and i don't think in the joint appendix where the portions of the report where he where he went through that to fifty different starting points but i can represent owner ask for and then you say well that's ridiculous it's ridiculous because when you do the economic analysis that's not at all what the value of the technology is but is that really something wrong standing alone with starting with the house and had well i think under this court's cases there is a there is a big problem with that first of all as the court as the court said in laser dynamics even if you haven't accepted settlement then you start getting into the discussion about what the alternatives are for a you know that would be defended or would be would be infringer here is what you earn if you don't have the technology here is where you can or if you do have the technology that's figure out the net and let's figure out how we might divide that up but why does this starting point matter all by itself well let's be clear though about what happened right so what what mr hampton did was he took as your starting point this extremely inflated licensing offer which again covered in a men's portfolio patton's you don't arbitrarily said there were only ten patents asserted therefore i assume that each patent gets one tenth of the twenty nine to thirty proposed and accepted license is a fiction that contradicts the experts prior testimony and that's exactly the same situation we have here because originally mr hampton had done a sort of a c based starting point when he was told that he couldn't stack up the royalties from all of the patents on all the products regardless of whether they could be accused of infringing the different patents he had to sort of disaggregate his aggregated royalty rate he up completely abandon the what that he had before he grabs onto this license which was never accepted and all of a sudden he has a starting point that's nearly twice as high as he had before so we have just as an would serve the only starting point that we have here so in this point that mr hampton had abandoned that in our case also abandoned the starting points that he had used if that's correct he rejected that he rejected the starting point that he used his first report in his supplemental report because by the time we got to the supplemental report right before trial there was essentially only one patent left in the case which was the one to seven he jettisoned his entire analysis of the starting point plucked this this license offer out of thin air  explanation of how he got there all of those numbers being quite a bit higher than any number he started with in his first report and he never explains why he changed from one starting point to the next turning point so the parallels to would serve are quite strong in that we have on excepted offer that so that's used as a starting point that doesn't can't really be squared with the rest and that's mark also applies here as mark also applies in the same way i think x mart in particular it is relevant for the a verdict on damages and i think again why mathematical precision is not required the courts add some explanation both of why and generally to what extent the particular tractor impacts the road the calculation is needed and tha completely absent from his report so the court was well within its discretion in deeming the damages opinion to be unreliable questions  there was another codefendant that had been sued originally who actually accept the terms and conditions close to the ones that were offered to prove i and you know he considered them a number of different things in coming to determination as to what should be a starting point and in fact why there's this quote irreconcilable problem is because the defendants who bear the burden of establishing that the specifications dictate that in hash to mean in the same material included within the material they put that limitation in and that limitation and only that limitation for which there is no support respect i guess the concern i have is that you're asking us to read the word in two different ways when it says r happen the fact that that position happens to be within the material the semiconductor is a reasonable definition of in the fact is it's defined by the limits of the inside of the only contact and it could mean someone who takes tickets a communal wire that conducts electricity this is the word in and it's always read in the context in which it's used and all we're asking the court to do is read the claim in the context of which the way the were in which you and film twenty p shows a mask performing an operative device of a t f t an operative device is something different in order to read octave semiconductor is only limited with if you have to the court then has to rewrite claim fo there's nothing that would allow this court or judge andrews to rewrite a claim for it which is what you have to do particularly when the claim says warm operative semiconductor at the overlap judge back to your question about jeff america and  this court said this court the district court must interpret the term to give it proper meaning to the claim in light of the language and the intrinsic record this case like chef is distinguishable because claim one or claim we're back to the one ninety