i move the admission to schumer and us who is a member of the barn good standing in the highest court of texas i have knowledge of his credentials and i'm satisfied that he says he has the necessary qualifications i've said before this is such a bittersweet time for chambers and for the court because we have a turnover works and it's particularly bittersweet for me i had poor sure i had extraordinary expectations for him when he came to the court and that's only because he was unbelievably well thought of by chief judge starr who strongly recommended him for a quick ship in my chambers but i have to say he really managed to exceed those expectations he's a wonderful talented thoughtful mature clerk pleasure to be in the office to happen the office we shared long distance at least his wonderful marriage to his wonderful wife a few months ago he survived last week in houston so he's got all sorts of talent and ingenuity and he's been just a delight to get to have as part of our clerk family so with that i would  please the court i have two issues that i'd like to discuss today the legal in possibility of indirect infringement judgment against the revised classic product line is there any difference between the revised products and classic products  other than the modified walking or no there isn't and then the courts torrone a sustaining of the willful infringement verdict based entirely on free patent conduct and the associated tripling of damages the first time that then remember the details but i think you'll fill in the details i think the other side makes an argument that there is a least some term in one of the claims that might not actually or that the jury might have concluded wasn't met and till the material that you supply or a that is not met by what you ship in the door because nothing is engaged in till it's actually put together and no i don't think that argument was met was made because it would have made a the jury held liable for direct infringement on all counts and all claims so they couldn't have made that i don't believe they were making that leap that because that you know i guess his hands the cap wasn't attached thus they don't infringe because in fact on the original design they found and if i p s does not infringe when it makes and sells the complete assembly then there's simply no way that a buyer can directly in french and install using the same assembly of parts you're not dealing with method claims as we just discussed or claims directed to an ins it wouldn't seem to extend to a product that was developed post trial and in fact his ruling of no pro style wolf in this was based in part on the fact that we had we designed well i don't think we had knowledge of a pending that not the case and i think state industries even suggest knowledge of a patent within the family that was inserted is insufficient to establish preceded egregious conduct application is really informs you of little there's no guarantee that the claims will ultimately issue the way they are there's no guarantee the claims will ultimately ever issue i don't remember in this again i think you know to hold companies at bay because the literature indicates patent pending i don't think establishes agree just conduct i think you know monitoring competitors products designing  functional equivalents certainly going to happen having to tell your i mean your own race i think patent pending gives you notice that they've sought a patent but i don't think it tells you that you're at a high level of risk my experience with the patenting process is that the vast majority of patents either don't come out or they don't come out in the form that they were originally saw and we're talking about again a prosecution that took in essence if you look at the life of the family close to ten years before they were able to get this that important at least background noise for the for the jury but the way to go i think evidence of copying is important background in essence if it related to the product that issue but the evidence that was put in the record in terms of copying didn't even relate to the waste and overflow similes of related to i believe there were two you may also there were reference either potentially knocking off or could we do this and neither one of them related to the waste and overflow assemblage that subject of a lawsuit so that's where we take issue with this evidence of copying because we don't believe there is any evidence that we copied their product and you want to give can you just very briefly give us the timetable here because that's the essence of your argument the time between the patents issuing and years and the court took issue with the fact that they didn't conduct some sort of investigation at that point in time when first of all patents did not exist at that point in time but the client had over hundreds hundreds of products were they to investigate each and every every one i would argue that they shouldn't what they did was you know you look at a product this put on the market for eight years i think there's a reason presumption if you haven't heard from w c emerson from some other entity that that product this free and clear aside and in particular what is that argument what do you have to say about what even if this was willful if either should be any enhanced images or much as crap i think not ok that's just too much of a man's i don't know if we specifically argued that the magnitude was inappropriate but we argued that certainly that enhancement in itself was inappropriate because all the read factors were not taken into consideration in a matter of fact in  opinion the judge refused to take into consideration several read factors and i'm not sure he has the latitude to do that but if you know i think judge toronto's question is on the show how does well i mean i see that at least including you're saying in any event i suit thirty seven claims we had knocked out five of the patents and thirty one of the claims prior to sue but he refused to take into consideration in terms of the closeness of the case he refused to take into consideration the fact that we redesigne fact that we did not attempt to conceal we filed our own patent application in two thousand and three and obtained a patent but if your quibble if you're not quibble but if you're just agreement is with his assessment of the read factors that can can alternative conclusions one is that they should have been and hence they're all alternatively well we could have enhanced you know one time or fifty thousand dollars or something but it should certainly not w we're talking about there was no free post patent willful conduct so his decision i willfulness was based entirely on pre packed and conduct and i think that would be a first instance for this court in any court to hold a an ends up with so unless he would have a argument for why a clean element is not met and kill the plumber puts it all together then it seems to me fundamentally that's what is being argued and what you need to do is look at the jury verdict that is being challenged under j m a well and say is there substantial evidence that's a procedural aspect to answer your question is there some way the jury could have found no no direct infringement but indirect refreshment where you did ask about the detachable engaged part of it and the jury could have found for certain claims that requires the cap to be  it's possible the jury could have done that but to get back to my first point i think that really comes down to are you trying to harmonize these verdicts by saying the n direct verdict can't stand because of the director and that's wrong they did not raise that so there the two things you're saying are inconsistent one doesn't exist there is no longer a verdict of direct infringement for you but one that in terms of what the jury analyze and whether they were inconsistent they weren't they found came because the jury on in direct infringement could have found either literal or doctrine required once they were not separated out i p s did not ask for separate verdicts on literal or or doctrinal quote once on in direct infringement as the war for the direct infringement and so we don't know what the jury did on indirect in french what we have to do since this is being challenged on jamel well is look at was there substantial evidence to support the verdict equivalence infringement for the revised product and there was four direct in french and that makes this indirect infringement as you go and makes it go away but even if if it doesn't go away there is enough evidence of indirect infringement to support the jam over to support the verdict and those being challenged under gentleman while this was a rule fifty motion not anything else and so what you look at is that burden of indirect infringement contributory or induced infringement supported by substantial evidence and it is there is evidence that all the limitations are met that there were instructions to the installers of the users about how to install the revised classic i think that's challenge opinion testimony do you what you strongest testimony that you think makes that you know unnecessary there are there are two parts to that first is i p s expert on for example certain claims like the two twenty one claimed twelve admitted every limitation is met except one and that's a loss and everybody agrees that was the focus and then you have mr humber who was i p s as director of the community saying that the revised classics the way they changed it it works the same way as the previous product that's that's what you have to show for a cuomo and say he said you put it on he turn it that's working the same way he didn't use the words functionally result think it's got five or six points on it and those are raised and this was demonstrated by point three above the high points one of yes but they removed the indentations on the jury could have said well they're no longer about this because you know they don't look like they're scallop but you put it on and you turn it and you could hear it click you could actually feel the friction and the jury had these exhibits and they were demonstrated to them and mr homer testified it doesn't work any differently it works the same way and that's the essence of equivalency and the judge i think just mistakenly said it first you let the case go to the jury he said well you know you don't have to have an expert you can still try this case and they did and the jury still found infringement goats and the judge said well i think you need opinion testimony that's just not required and that's the kind of rigid rule that you don't need you do need particularized testimony but here that requirement is very low because there's only one limitation that was really at issue the d c m didn't have to put up in bright lights we're now talking about the doctrine of course once they gave the jury enough here that they could find it and when you go to those cases that discuss things like eyes testimony the issue is you just don't want to have overall similarity you don't want the jury just to be saying these two things look that's not the case because the way it was presented and the only one limitation is it is if you want to turn to well yes and they have evidence of subjective right recklessness and the well that they are on the record sure the sorts of things that he that the judge pointed to and that were in front of the jury was copying that they frequently copied products threads were very carefully designed to be of a certain rise there is no code that says you have to do it that way it wasn't a coincidence that one could fit on the other and the jury was within its rights to draw an inference that they had actually had the product  by itself i agree that is what the judgment was that post that but that conduct by itself the judge said was not and there was not a material fact that supported well now we know after the mentor case that's actually wrong because  jury was not given an artificial time period to look at they actually found that there was willful infringement with respect to the two seventy which issued after the suit was filed they were not told you cannot look at post litigation connel so for the jury verdict knowing the law what it is now that was litigation conduct is not a student i think this court can look at all of and say the verdict was supported now the judge said no willfulness after that time they can't support it by itself they say that's why i understood the ruling but he still found that there was enough evidence to support willful regiment and agree just conduct which is then reviewed for an abuse of discretion and i think that's really where it comes out is that there was enough to support the verdict looking at the totality of the circumstances and the judge was correct on that wasn't it we've heard it wasn't a close call that their defenses were particularly weak he saw this case and that's exactly what halo's and i think instructed is that the district court judges are supposed to look at the totality of the condom and determine whether or not there's willful infringement did you are opposing counsel did you did you get any flavor of that that they were saying are well it's all or nothing aren't your honor i'm not aware of any arguments where we argued for a lesser amount or suggest that some a lower amount would be appropriate and even on their appeal i think the focus directly include something less than all or nothing that i think you would read that arguably it does definitely would if i don't i don't think this court has really any room to find something on whether it's all or nothing and specifically i'm sorry i mean is it so you're saying it has to be all or nothing because that's the only argument they make and i don't think they have made an argument for something in between i agree and in fact if you look at the section on it where they say it should have been troubled and there was just conduct it's based on the jury verdict they don't even say abuse of discretion it's not an argument that notwithstanding the willfulness verdict the judge abused his discretion they did a good ask me don't they i mean there seems to be a whole maybe more than one three five that is true that is not amount to abuse of discretion and that is no that that's a result we're talking about more or less a way for a question of whether they preserved an argument not whether you should win or lose on the result discretion it all comes out the same thank just like you dress a couple of quick things on the bottle first i just like that you know go back to where we you know remember remind us how we got here you know this was before trial they were informed that their record was going to be excluded sentence i appreciate that question your honor because that's what i take issue with you know none of these witnesses were referencing the claim in their commentary they were comparing accused product to another choose product and gauge an inner surface of a cap that fits over side and none of the testimony reference this particular allies certainly not directed to this particular element under the insubstantial differences for the function way result test which would allow then us to also focus on the claimed construction for several these terms were construed and also look at the scope and content of the prior art but because there was an improper dr  analysis performed here there's insufficient evidence and i think the judge you know as he was there he saw it he realized that that was insufficient they knew going in and they didn't meet their burden so they shouldn't just be rewarded by cobbling together testimony from four different witnesses three of which had their own employees to make such an argument and then the last thing i want to know i want to ask  i think the argument was made in form four and five where they were referencing what they call base based only on infringing units because at that point their view was the revised classic wasn't an infringing unit under the arguments that were previously made the damages but more importantly did district court must not only consider factors that favor and has been but also factors that consist that favor or weigh against and handsome and in this instance i think i pointed to three clear instances where the district court didn't just charges