judgment of infringement in this case is that john's tech conflated a literal infringement with infringement by the doctrine of the women's in that it argued that making the same structure constitutes the means for biasing contact against the housing quo elastomeric that that is simultaneously the housing wall itself in other words having failed correctly i think in a direct in a literal infringement analysis that same analysis was used to say it is doctrine of equivalence so that what we have here is a patent a very short patent with a very short specification that discloses only the contact with the housing will that has a has three elements for jury i don't think it is a question of fact your honor the reason is that as we have explained in our brief period are several bridges that it eliminates by virtue of turning that the  housing is a separately specified element of claim one and all through the other the other claims so it it can't be it seems to me a question that the jury can say as a fact we don't need the housing wall because embodiments use for an engagement by the contact with the housing will be so if there's no evidence to support the fact that the housing wall is not necessary it's made unnecessary by the by the theory that was used here i guess i'm not sure i really understand what you're saying we've got a functional way result test here yes and seems to me maybe the question  you've got tail end of a contact in engagement with the wall of the housing in with respect to the infringing device the argument with respect to way which i guess is the hardest one to get through the engagement is in direct so there is engagement with the housing it's just done in a different met not directly it's done in directly which is essentially you know an equivalent way of doing it so that's the theory right and just going back just to finish my question to add what judge newman pointed out is ready why wasn't the jury permitted to do that kind of fact becoming reached that conclusion i mean certainly interrupt the theory fails as a matter of law it seems to me and the reason the reason for that is because by simultaneously saying accomplishes is to a race a meaningful structural and functional limitation of the claim on which the public is entitle to rely on in avoiding infringement that's a direct citation from this court in julie operates in the same way with the using intervening force which itself that rests on the outer housing so it's less direct than what the pattern explicitly because the function of the reason it occurred sliding was to achieve a result of reducing what is called that the the wipe at the top and to avoid direct contact with the housing will so that you preserve the integrity of the housing so that we know conversely what the intention is with respect to what is the past lot it wasn't there a lot of evidence that it substantially decreases the amount of sli testimony and reach a conclusion that the accused device really does limit the amount just let me split this up and pieces because although as one question i think there are several parts to  because the infringement question if i can use it that way if something is different then the argument i'm making with respect to the last rumor being both the equivalent of the housing wall under their theory and the means for b the infringement argument that was made was based not upon one there was no testimony from any of the witnesses that said ok i've looked at the i've looked at the claim i've read what the claim construction is any in my judgment for x reasons it is in fact a substantial reduction of slighting rather what was asked and we've cited this in in our in our main brief i think it's very early that page seventeen or thereabouts that there was an analysis that said well what an ordinary person of skill of the art do to determine whether or not there was substantial reduction slight and the testimony was that seems to me at least a pretty good starting point it's not i think it's a starting point because you have to look at something but you have to understand what it was but the testimony wasn't just that  less then less than one hundred and ninety one dollars i think was the number was listen to ninety one it's it's a substantial reduction but it's considerably less than one hundred and ninety one i think what went down to twenty four my contract correct but that's twenty four times what the happened to devise what the commercial embodiment of the patented device does you know and i think it it was misleading in the sense to talk about the with of a human hair and what this distance is because we're talking about very small difference very full small differences in terms of spacing micron i'm told of sixty microns is a human hair well one micron to twenty four dollars microns which with twenty four dollars times less reduction than what they have to all it's interesting because i think based on what i could glean from the record this is exactly the debate that the experts had before the  and what the district court judge said jay mall is yeah you had a competing expert that tried to diminish the effectiveness of your numbers some alternative hers but i don't think it's extreme for the district court then to i have to defer the jury was a lot to credit what one expert said even if we said here we're not a jury even if we agree with what you're telling us about these numbers that's completely irrelevant to what we're doing right now i don't the jury could cre saying they're wrong with twenty four was really seventy three i'm not here to say that that's on the record and i was in the argument before my argument to judge bryson essentially years you can say to the jury well it was substantially less because it was less than the pri think is a better measure from reducing from what you're on or respectfully you use the term starting point earlier well and i agree with i agree with you have to look i think starting point i'm not sure it isn't that pretty good stopping point too because it's at least ninety five or close and the reason i say that is because the district court found i think correctly that the intention of the happened was to reduce the  as much as possible ok but you're still you're still starting when you say ninety five percent i take it you're still starting with the prior right one i knew what right i have no difficulty starting  talking about there's lots of lots of laws the court is o c where aware of when you have subjective standards of substantially this and so you have served some kind of preference and perhaps the reference at least as a starting point is what the prior  that that may be that may be true but but it seems to me and i'll go back to what i think is fundamentally the more important part of the argument is that the literal infringement argument that converted itself into a it's column a column three lines sixty through sixty six or thereabouts that says that it was designed to have the contact make it in gauge went with the housing will rees's two issues on appeal both of those issues concern whether there is substantial evidence supporting the jury's verdict i'm friends with john's teka raises a rd purely legal issue concerning interpretation of the kind of an alternate argument which is they require whatever gauge a minute is it has to be with the housing law between the contact and the housing wall and here there is no in the equivalent and it can't  vitiate that in a way that a limits that entirely because there's no contact here between the contact and the housing will so that's to me that's the issue and i think that's partly what your friend was telling us engagement to cause the contact to roll forward and while the court did construe and clean construction requires that there be direct engagement that was because only direct engagement was shown in the material and it's important in that in that that the rear last more water is compressed and tightly pleased with in that housing and it's confined within the housing and preach impressed my contraries testified to this so it wasn't required to have two elastomer in order to practice the cleat and as you heard the argument by my opponent has said that we're arguing that the seams structure as another element is being used to prove equivalency and that's not exactly correct because we don't have the clean can be satisfied by want to last for that rare last more could be considered i don't i don't think it's inappropriate to use another element to show because there have to last a reason in the device so your argument really i gather is that it doesn't matter that it's an happens to be in alaska but that's between the wall and the and the foot of the contact it could be a thin piece of metal that you've hard but it's not so hard that it doesn't have some give to it so it's not exactly the same as a wall that is solid that's biasing with full force against the foot of the cut they would argue otherwise they have  heard on that function way result competing testimony and they decided in favor of john stick it's based on substantial evidence the evidence wasn't just based on the expert testimony the other evidence was of course the  it doesn't matter what they intended and we disagree with their intent we showed it and contradicted them on cross examination of what their intent was but it doesn't matter because their product also substantially minutes live now because there are others just attorney's fees and hence damages for twenty five percent based on sales made after the verdict entered a permanent injunction so it's all it's all been resolved no choice us to the question of whether you get more some testimony to be sort of befuddling it's hard to believe that there was a meeting the parties the subject or at least one principal part of the subject of which was this allegation infringement without anybody actually producing are referencing a particular patent apparently at least so far as the record shows that's true that's what happened we can't dispute that you're on  it's as bizarre as it seems that seems to be the facts on the ground as we have now with that so why isn't a case like informed of the identity of the patent and the activity that is believed to be an infringement i don't see that you were informed of the identity of that so the facts of sri are different because in that case is that if my memory serves me there was a letter that don't the i'm quoting from the section their opinion in which the court says busy states the standard to be applied in this setting and there the court is saying identity of the patent it seems to me that it's as clear as could be that the identity of the patent was not disclosed in this case the identity of the patent and we can we submit that we have not offered evidence that it was identified so why under as our eyes only are you not  for because we've the statute doesn't require identification of the specific step of a specific patent and there was a particular information and then a fight in the meeting that's shown by the declaration of mr  go fetch go look for through our two hundred and fifty patents and see if you can find one that busy that infringes that's not the purpose of the notice statute isn't to put somebody in that kind of task well i'm i don't think i do but i don't see how whether a company that's two hundred and fifty patents coming in and saying you infringe our patent rights congress could have written a statute that allowed strict liability and didn't require notice if it wanted to  i believe that would be constitutional in this case it wrote the statute that it did and it specifically said that the number pad number must be requirements dated for marking and it didn't states with respect to actual notice just  is that that's really what was contemplated in this language don't you think it's a fear interpretation of this language to say notified of the infringement necessarily means that you identify the product and the patent claim which is being infringed i submit that a fair reading it's a very in that the the the activity of infringement has to be identified specifically but it doesn't require the level of detail as the marking then why is that a legit claim of infringement and we're assuming that if somebody makes a claim of infringement it's a release and knowledgeable claim so those people need to have that to make the charge of infringement doesn't they don't need to provide notice the marking statute for good reason has to require a specific patent number because of your not having an active person there present in the situation where you have a person telling you you specifically and that product infringe our technology related to our product as the sequel district court has said you don't need the level of detail if they have a dish no problems with what information they received you could follow up they could demand information about the activity that's the alleged infringement and you provide a level of detail of some level of detail that complies with the statute well some level of detail in the what would but what we're struggling with it's what do you mean by for example if the if you say the name of the patent is x it is my only pet you can find it easily just go on to google patents and you'll find it but a name that's that's probably sufficient i don't know actually having the nine million eight hundred and fifty six thousand two hundred and fifty one is required but to say particularly again what a company that is do under fifty patents to say you infringed one of our patents but we're not going to tell you what it is is that noticed doesn't sound like notice to me well the record didn't quite put it to that degree you know got a extracted the two hundred and fifty from her from the record and i extract from the record also as you agreed that they didn't patent so that kind of leaves us where i know i think it i think what it leaves us is as long as there's been a level of detail shown is quote notified of the infringement in the level of detail here see the testimony and we asked for the number and they refused and it seems remarkable to me that actual notice needs is under their theory less specific then the constructive notice that marking would have provided reaction is if that isn't an insubstantial edition for avoiding infringement exactly the reason that the doctrine of equipments was created by whatever chord it was whenever it was a one thousand years ago then there isn't correct but the piece of metal piece of metal i'm presuming and it seems sensible that the only reason it's put there is to avoid direct engagement with the back wall from where i don't i'm sure if i work but in this case it's a very substantial difference and the difference is seen in finite so thank you to the  the invention in this patent this is appendix twenty seven it's a column three beginning of line fifty five this contactor system has been designed to prevent contact translational relative motion brand slighting clothes brand against the load board twenty eight sliding motion causes wear and tear on the load board pads an undesirable characteristic the sloped terminus of contact tail six in gauge went with housing wall fifteen is instrumental in preventing the contact eighteen from sliding along the load board the front elastomer also plays a role in helping achieve this and by forcing the contact eighteen in a direction to remain seated against the wall of the housing tent now the elastomer in the zygmunt device is the means all making the need for the required element of the housing wall i'm necessary it vitiate that requirement for those reasons i ask that the judgment below be reverse