i think you're gonna make please the court this is the enhancement of damages case where the willfulness was base clues of late on the defendant's pre suit conduct the case was here earlier and you remanded it account of the fact that the district court judge disconnect that precinct conduct and on remand the district court judge has again diskin that conduct with respect to normal court held that it was not reprehensible for normal which case quarters wouldn't of had a supplier and there wouldn't have been any infringement but it didn't do any investigation whatsoever and totally ignored the patent and there's absolutely no authority giving a party a pass on enhanced damage here the court ordered enhanced damages of five hundred thousand dollars a point over two multiplier of actual damages well that amount of money does not punish cords and that amount of money will not deter course from doing anything at all in a resulted from any rony of application of several of the reed factors which we discussed in our brief but i'd like to talk about read back to five which is the closeness of the willfulness case here the district court judge did not even consider the close of the wilkins case if he would have considered it he would have looked at the evidence that caused him to say the court has didn't take speculative seriously even until the lawsuit was filed if he had consider that evidence he would consider the evidence of both objective and subjective of the reckless behavior of course prior to being sued but he didn't do any of that instead what he did was to say well this case when it was tried was close and he substituted that for looking at the closeness of the waltons case and of course will say well there are plenty of cases where the court looks at the close of the case is tried and there aren't and in seagate you distinguish between pre suit imposed suit willfulness and you said in the case of post suit wilpon this a reasonable defense on the merits will tend to defeat a claim of willfulness where the willfulness is based upon post filing conduct and that's because in that case the timeframe and the evidence are the same in our case the evidence was based upon pre filing conduct any timeframe for that evidence is completely different for that from when the case a trial would happen is that the case was submitted to the jury they were given the  even if that's true he went on after he did that probably in response to your argument to consider the costs of the infringement ruling the case and then he said finally even if the court were to consider only the closeness of the willfulness case the court reconvenes find a local case were closed and he went on for two paragraphs to explain why that is why isn't that clearly an alternative finding absolutely support his closeness of the case analysis he even felt he didn't want to fall prey to the error on appeal that you're possibly pointing out so he went ahead and lysander the other way as well but with all due respect your honor i don't think he did what he said w i'm going to do that and then when he started doing what he said was that i'm fine is that the case when it was tried was close as i said he didn't examine the evidence the cause even he to say that chorus didn't spector linux seriously until the case was filed if he was examined that evidence he would have decided then whether the case was closed when it was while if you would have examined the objective and subjective evidence prior to filing then he would have done that he would consider the closing of the wolf in this case but in that paragraph where he said i'm going to do it what he has said in the prior paragraph or two is that they are bound together he did not it is is woefully wrong right because of the twenty two million dollars when i look back at the damages most of those damages were attributed to sales that occurred after this lawsuit was filed so if you're looking at what the multiplier is for willfulness don't you have to look discussing well i'll tell you why the jury was given the seagate instruction and they were told that if a part of that they should examine the objective and subjective evidence considered from the perspective of the reasonable person in the defendant's position acting in accordance with fair standards of cons and the first thing they did was they sent a note back to the judge and they said when do i do this when do i look at whether this person was reasonable and he suggested by a different times the judge called the lawyers up and spoke by telephone and we told the judge it ought to be the time prior to the filing of the case so the judge then went back to the jury and gave them an instruction the said that the willfulness varied in this case is prior to the filing of the case wolf and this was based exclusively on that timeframe this is discussed i think at the very beginning of our reply br we get into the facts relating to this as far as the jury instruction you'll find that at appendix three twenty nine and twelve ninety seven so the point is that the close of the case had nothing to do with the will ss they were two different time frames and the problem with what the district court judge has done and the effect of that is it will encourage defendants like co to recklessly disregard the rights of others because they know two things one if they do that a lot of these people will go away specter linux was a two million dollars a year in sales companies courtis was a fifty billion dollars a year in sales company when portis said to speculate it's no problem your guys and they totally ignore the pat most companies like speculators would have walked away and for us would have ended up stealing their intellectual property the second thing that they know based upon what the judge is done here is that if they are ever sued by the spectral effects of the world if they're taken with willful infringement they can escape enhanced damages by showing that they're putting together a close case on the  you that a fifty billion dollar your company can do them they can make a case look close in fact in this case they brought together fifteen very fine lawyers and their mere gravitas caused our defeat a court judge i believe th case was close but it wasn't close it was not a close case a case is not closed on the merits where on validity one of the elements of the invention is not even in the prior art and the defendant's expert them to try to tell the jury that to the fits within a bushing is not smaller than a bushing despite the fact that the two this in their slides and turns in the  what the judges thought their argument that the case was closed and even analyzing where the case is closed is very interesting to see what he relied upon he says the case is closed as evidenced by the fact that i would have decided that the other way that's not evidence evidence is a prior art of secondary considerations of cetera so the focus of the case is not something that nerves or benefit and with respect to read factor f you have a separate section in your brief yes we said there that the case was not closed i don't think that this court weighed in on th on the region snus of the defendant's conduct in light of all the facts and circumstance the case was then remanded and on remand the district court did exactly what this court said it should do the district court considered the egregiousness in light of all the facts and circumstances it awarded five hundred thousand dollars and change the result to earlier appeal there had been no ward at all and in the second appeal the court awarded five hundred thousand dollars because it was now explicitly although mr carlson says that the district court did not consider all do not consider factor number to discount and the district court said exactly the opposite of a five he said he was considering every factor without discounting any of them and considering all the factors court terms that sanction that that result rested heavily on the court's views as to the closeness of the case and before we get to the close of the case i would just like to touch briefly on one other issue which be addressing but the court's opinion is clear when he when the judge uses the term portis in his opinion he states in footnote one on page eighty two that he's using the term quarters through to refer to both defendants so that when he inclusive or to five hundred thousand dollars on corners that is an award on both defendants that's confirmed by the judgment which gives specter would expire hundred thousand dollars for defendants as apostrophe plural misconduct nobody got a free pass the determination that of course conduct was not particularly egregious on this record was amply supported by the facts and certainly a permissible exercise of district judges  there's no basis for the trip for challenging that determination of the challenge that spectral it's office is basically based on two arguments their first argument is a legal argument the argument that  willfulness determination i'm sorry that the determination of closeness of the case only relates to awfulness not a determination of the merits and i think that argument fails for three reasons first it fails because as judge moore noted this judge expressly considered not only the closeness of the case on infringement and the closeness of the case on willfulness he also consider the closeness i'm sorry this is a case on infringement validity to also consider the closeness of the case on and he expressly found at pages eight twelve and a fifteen that this was a very close case not only on infringement but also on the awfulness and that's determination is frankly unassailable on the the mights and has told me you do view the evidence differently than the district judge that's not enough to overturn the district judge's ruling you'd have to come to the conclusion that no reasonable person could reach the conclusion that the district judge reached if a patent requires and we recognize that the jury found against the son that was the judge heard all the evidence and he came to the conclusion that most reasonable juries would ruled on their favor on that issue and in fact in the light of his views on the closeness of that necessarily defeats willfulness under sea get what i heard during mr carson's argument was an effort to completely rewrite the will fruit willfulness standard in a way to my hearing would completely eliminate the first for the district judge to apply the reed factors to knoebels conduct but if you review the opinion that's exactly what the district judge did factor number one copy and there's no allegation case that court is ever had analyzing in concluding that the evidence failed to show that noble copy specter let extends back five pages of its facts section two pages of its argument in a portion of this reply brief arguing that the district court erred in how the district court applied that factor to knoebels conduct by making an argument they're conceding that the district court applied the read factors to knoebels conduct in the order it says plain that speculate shall take in hand damages amount of five hundred thousand for the defendants willful infringement but i don't see how that is attributable to noble if you read the entire opinion together any opinion taken as a whole is clear that only say except but then he goes on in the opinion to evaluate greed factor number seven for example remedial steps taken he specifically references remedial steps taken by noble to cease use of the what little use they were still making of the infringing device shortly after a trial he's he went and evaluated each of the factors as to novel he was if no one was getting a complete free pass there was no need for him to do that and yet that's what he did copying only novels conduct that he's talking about and yet that becomes a very important part of his opinion as well as their appeal so he didn't give noble a free pass billion dollar company who didn't even ask for a supersedeas bond on this appeal that size just such a different issue we didn't talk earlier about whether or not the district court erred by taking into consideration the size of the rarely went dial up judge didn't see it that way well your honor i mean what what what would we do if the only issue here was the five hundred thousand which is most notable importance or maybe on the poor you know as a matter of k quite a bit more than we did in this case but that you know that to a certain extent this goes to whether we should defer to the district court judge and i think you should take into account the fact that from the very beginning this court judge didn't like this patch and he said so in a summary judgment ruling where the issue is whether there are genuine tissues of material fact he said the course is going to win that's that's not an issue it was totally a decision on which he had discretion and when he had discretion he went the other way than what the jury did because he felt from the very beginning that the case should go the other way that's not a error of law but it is error of discretion we believe because the closeness of the case was not an actual factor in this case where the willfulness was based upon and exclusively based upon free suit conduct the jury asked when am i to decide the objective and subjective criteria they were told pre suit they have about other periods they were told no it's all presumed what does it matter whether the case is tried is not so much that point there if he had not made other errors and it's a issue of of of discretion all i would be able to point to is his early issue on the dispatch that he room well we are in are great but i'd like my main point here it's a factor we send it back this time what are we going to tell him this time to take a look under read back to five of whether the willfulness case was close that this issue about whether the case is tried was close is not a read factor in this case where the willfulness was depended upon pre filing conduct now i'm not saying you can't consider that can't tell you what was going through the mind of the judges when they put together the reid case i do know that what they purported to say was i'm going to pull some cases from the prior case law that show the ways that the court has decided whether to enhance damages so they pull all these cases together a new court of in some categories do they overlap i don't know they probably do and maybe the judge found a little bit of overlap there but in the case of reid factor five what that was was willfulness closeness they pulled cases that dealt with the closeness of the willfulness case and again that in some was really shaky and you know maybe they really should be awarded if you will you give them a pass on account of that if they ignore the patent pre filing and they are a willful infringement refrigerate pre filing you give them a pass because they are able to put together a case that looks close on the merits i think that's wrong cases have rejected that the federal circuit has rejected that crystal semiconductor rejects that and i think there was a lot of factors taken account but he committed an error with respect to read back to five read factor five deals with the closeness of the wolf in this case it doesn't deal with the causes of the cases right i can't change well i don't i find any case at all where on pre filing conduct this court has ever considered whether the case that got tribe was close because as i say if you do that you're going to encourage if the willfulness case is closed then the walker bridge mckay's will necessarily also be close less absolutely wrong that's only true if the timeframe and the evidence coincide which as you said is seagate would be the  at trial he doesn't say anything about what the evidence objective and subjective was about pre filing willfulness he goes right to the fact that the case was closed because the case was tried was close having said in the prior page that they're the same thing when they aren't with respect to pre filing conduct this is a huge distinction that he never grasped he didn't grasp the this case in this case is district board specifically limited it's subject matter jurisdiction at the beginning of the case to the portion of mr pros each of contract determine at the plaintiff request whether certain tennis racket models that wilson sold and for which it did not pay mr for although any one of these at all were in fact relations articles under the wilson for a agreement in the beginning the case the court also ordered that any question of damages in the case would be subject to arbitration under the dispute resolution mechanism clause in the parties license agreement it also under rule twelve the sixth motion to dismiss mr for all those patent frenchmen counted entirely there were then several errors by the district court where proceeded beyond the limited scope of itself defined subject matter just the kind i think we have the procedural progress of this case well in hand i think you want to jump to what you think are reversible error the first reversible error occurred when the district court granted wilson's motion for judgment as a matter of law at the close of mr furloughs case at trial i dismissed his breach of contract claims with respect to the five tennis racket models that were issue because he didn't prove patent infringement but there was sufficient evidence in the record to support a breach of contract  if the rule fifty motion had been evaluated as a reach of contract claim that was sufficient evidence for the jury to find it will soon reach the agreement there were from the very beginning of this case wilson evidence when you look at how the case unfolded in that prior to the rule fifty motion will see never produced anything in discovery on the first summary judgment motion meet the limitations of the claim in the stop right there so in order to be license you know for purposes of this trial you have to decide whether your particular racquet met the limitations on the c trial issue back correct because wilson's argument which is one of the limitations of their failures to the fall that's what got us to trial correct occurred in the in the process of getting there the court was looking and wilson waiver and you can't easily indicated that was not the case and it was really by implication you were attempting to do that and that's simply not i don't think it was by implication i think wilson would have to produce evidence a licensed article why this group and have to come forward you didn't why didn't you have why didn't you it's important mission about whether the things hence why didn't you ask him to rock a torrent along these lines anything at all that could have been arguably on the internet of the five rectification because there's nothing in the record that can see the five brackets so i just went on the internet look for my model number and found them correct i mean what happened during discovery was there were a l is different than the final judgment issue was marking a stopover in that the fourteen rockets were marked with privilege at number and this is an equitable  detail and basically said that the someone in wilson's position should be it should be relatively easy for them to explain away whether the marking was inadvertent limited and other than low but i think they took the high and low but what he did was find that we need to move from a pilot run environment to actual production you're going to get a deviation from the number you see  limited pilot when testing something when the number could go higher than the high they had they have a high nearer max and a low number of men and you're saying that the math is not actually them out there for low introduce of evidence of a never go higher he calculated but i don't understand the standard deviation has to be able to go above a map or below a man's he said to six an hour he calculated it and it came to be that there would have been some racquets that could have been produced with an eye greater than eighty where i second summary judgment motion was entirely beyond the jurisdiction of the district court in that the two hundred ninety nine racket models had been treated by wilson as latest articles they paid royalties on all of them the only question now is also mark we don't they we don't know whether there's no evidence as to whether they were marked but wilson paid royalties on them the only question is that our  found that the royalties were sure and it was a question of damages which was excluded from the district court's jurisdiction by its initial order the racquets that should have never been adjudication was and never came and said nine hundred there will soon but in the beginning of the case wilson pandered payments to for all over practically eight hundred thousand dollars depending on how these foreign rackets and the other records fall out there still another two to four happened in the case was there was an audit and there was a disagreement between the parties wilson agreed some of the rackets were lace and start a close and they should have paid on them and they also agreed that they had shorted mr royalties on some of them they paid six hundred ninety nine thousand dollars on a domestic audit and i believe it's two thousand and seven and then they paid another eighty thousand dollars on the foreign audit in i to afternoon geoffrey keith from kim associates representing wilson sporting goods this case is in essence a contract a few but because the contract here specifically says that wilson only licensees on licensed articles and the only thing that is a licensed article under section one point two of the agreement as a tennis racket which is covered by one or more unexpired or otherwise valid claims that happened the court is required under take a patent analysis to determine if a racquet meets the claims is each element of the claim in future sort of grab wilson originally moved to dismiss or stay the entire case to go to arbitration judge chose or said when i look at the contract i think that the contract is silent on who decides what to life startled so he retained an ounce this is an appeal this is where you're supposed to put in any evidence on these five records which you dispute defendants contested facts and then i go through a lot you have a plain terms the three seventy two patent has five relevant independent claims that are summarized follow on page twenty eight of your pre that's extraordinary and netting and netting in a playing and netting with vertical and horizontal there are rackets in the market that have lots of variances and there was no proof ever enter so what mr polo is asking the court to you can distribute for those issues from an audit right since one thousand nine hundred ninety at the beginning of the license mr froehlich had the right to audit all of the payments being made he waited until the license was about to expire to exercise our rights that brought in three years of payments under the audit right we look at what were the payments made what were the records and he used to determine what license articles should be in the royalty pool and potentially which ones should not fuld through his auditor joseph giannini decided that the pool of audited licensed articles should be every tennis racquet weighing less than ten point nine ounces not an element of the claims or any wilson record that had the name cameron which is the last trademark associated with it that's how we develop this pool of what should be a licensed article at the beginning of this wilson conceded that in this pool there were one hundred twenty records that we had underpaid