comprised simply taking the exact language from the cited reference and putting it into the claims and then the pattern was issued for it so from the word go this pattern should have been issued but unfortunately was then you go to the motion stage and at the summary judgment proceeding my client looking back to the record clearly was arguing or attempting to argue that it was practicing what was the prior art which was ac waveform u that absolutely and i'd be happy to address that and what i understand you to be saying is that the first experiment in california was appropriately experimental  but the second one was not and i do i apologize for your art you are misunderstanding i'm sorry if we didn't clarify that well enough in the brief we don't think any of those uses qualify as experimentation unless you're talking about i think the one on their parking lot that and i think may have been arguably experimental but the two there's two extra uses of the device which went on for a period of more than one year and all falling in california in fullerton california yes at two different intersections  bit because of the clockspring factors and the analysis that one would put into place where the testing that was going on was not directed towards any aspect of the claims that's the problem that they face with this experimental that is their theory as to why these two uses for experimental because they were trying to see if it were work for its intended purpose and i have some difficulty seeing why the first one of those two  still have that and take it out for public testing i mean your argument on that point which suggests that once you're ready from happening you can't take it out in the public at all and that's not the case i absolutely agree on and i'm sorry if the court was given the impression that it's not possible to do some level of public testing the point is what period of time would be a legitimate public testing and the inventor himself admitted that whatever issues were going on which were identified only as noise and durability noise and durability are not in the claims so those understood it and in theory there are my policies your honor what i was serious in theory yes you should have some amount of testing and the problem we face here is that the inventor himself said the only issues that they found were solved within a matter of either days in one installation or weeks in the other and then we have months and months and months more than one year agreed to on the record of usage when it already has been found to be functionally fine don't know if it was drug or not isn't that why we look at these multiple factors and clock to determine a lot of different things i mean under your theory of somebody and the and then change and takes it out and there's no problems within a week or seven maybe they need to file their patent but what if this is an invention that's supposed to you know have her military at ten or fifteen years or so weeks test and without any brain or any snow or loves help or you know snow but you know what i mean yes how do we know what the link when the length of time is too long are we supposed to look at these factors and in looking at these factors how can i conclude the jury's decision is not supported by substantial evidence i mean i think that the factors weighed more heavily in favor of your friend on the other side respect for your honor i i would disagree for a couple  reasons one would be the admissions of the inventor himself about the length of time it took him to understand whether it was functioning correctly year or not so that sort of a lack of documentation is the primary one there is no documentation there's no lab notebooks there's no inventors records there's no change orders there's nothing to suggest that for public safety for do ability to noise for noise for any purpose that this testing was going on the only time we've heard about testing was at during the litigation when it was brought up when they realized my gosh we've got an installation thirty three months before we went and filed for a patent and as you do we get paid for that apartment did they get paid for any of the thirty three months they did not get cash or what the there's one marketing letter that was produced and that marketing letter from january of twenty two thousand and two i believe it's thirty seven twenty eight in the record your honor showed that what they did was they negotiate a quid pro quo with the city of fullerton for multiple additional x installations which the marketing group at celera within utilize determining whether the the use was public or not they did not properly evaluate these issues that were before them that and it's an issue of clear and whether there's substantial evidence to support that what they had and i believe that part of this goes to the issue of validity you know we had lost my client had lost on in french so you're there trying to simply defend yourself on the validity issue and on validity the instructions were given incorrectly and as a result the there believing that this the court had found infringement and my our clients are bad actors weapons in the era in the air in the destructions was the fact that a different standard was utilized at the claim construction and summary judgment  the jury instruction was given that the the term digital data signals should simply be given its plain and ordinary meaning and that's what the jury was supposed to to evaluate and the problem with that is that at trial when you're simply looking at that played an oreo meaning the way the player experts testified about it made it sound like digital had to be ones and zeros and therefore the simcoe device the wilkinson patent and the prior art device of my own clients and lighten it would not qualify whereas at the summary judgment phase they had strenuously argued argued to stretch the claims to cover those of us and that the error than your honor is the infringement instruction that should have been given are partly the instruction a claim to obstruction that should have been given should have been the court's actual interpretation from the same judgment phase and that would have at least allowed us on the obviousness and anticipation arguments to have some come back rather than simply being judged as unknown infringer with essentially no defense to the patent being valid or not and i think that also then spills over into willfulness and the other issues but that's but that's all anticipation obviousness it's not public use which is what we're talking about for you know when i need to show me clear area playing all these factors and when i look at three of these factors i see some of them way in your favor and i think some of them weigh your friend's face and if that's the case then i don't understand how i can  he's going to argue i believe that favor him all or favor him only for a limited period of time because the use was shown to be in any experimentation that supposedly happened was shown to have been resolved and the problem is is that the all of these necessarily time really know your honor that you're right and and the problem is their record is actually devoid of anything supporting either side and so the ones that he's going to say that was my point that support him in fact in it  actually are neutral at best there is no evidence on either side about it because there are no records of this and the problem is with you i'm not i definitely want the fact to say exactly the same as i think they come out in my favor that the problem is that this is the way they the jury favor i appreciate that your honor and that's what we're here for but the problem with their interpretation i believe is that anyone could use a public use for any amount of time under this scenario and you want to say just in time for a model i do you let me tell you what my problem was ok because i understand clockspring in these other cases that for something to qualify as experimental use it has to be either to test the claim limitations which is not the situation as much of an argument to suggest otherwise my concern is with the second innings which was still outside the grace period and the testimony that i guess it was the inventor ga developing for vice correct any self correct one that happened in some more than one place there so if in fact this was testing for commercialisation it w as an experimental use and how do you deal with that as well that there is a case actually just directly on point here so there's actually three tassie there it is the first two f of the inventor if that's important that's the weakness of your case say i still needed to do testing to see that it would work or its intended purpose what he says instead is there were commercialisation issues and that was the purpose of the second test and to do testing for commercial purposes answer the question we've got to deal with a record that's in front of us you can say that he didn't agree with it when he says correct ok look i believe well look he's not looking at the case law versus commercial he says commercial issues needed to commercialize it but these are commercial issues but i think the inventor is looking at that as hey are we able to roll this out to a population i don't think that this is can you commercialize it that's a much different term than a commercial issue a commercial issue to an engineer but we all know how engineers interpret things and specially engineers in a deposition here answer almost all  exactly right we have numerous individuals saying that look we want to make sure that we had on multiple intersections that it would work on the second it's second it's just really in line twenty four on sense yes demonstrating that you could make it work in january of two thousand series yes make it work is much different than make it work for make it work means i can flip a switch and it and it lights up that's making it work stretching out to things across the parking lot is making it work making it work in a conduit filled with water sand and mud and sending digital data signals i mean to describe a little something there is if i walk over that wall and flip the light the lights go on you're just sitting powerful like you flip it on i can with the it was the work he's talking about making it work he's talking about the parking lot stretching out and parking lot and flipping a button and making sure that the lights went on twenty to forty every intersection has different equipment different lengths of wire and i'm at one twenty five spreading in a twenty to forty one and based on the facts we knew that noise electrical noise from high voltage was a problem in a concern we felt that would be necessary to test on more than one ideally three intersections i want to address something that was said i believe you said a judge like which weren't testing th claim elements that's not true what was tested and what was changed in both instances and both the first intersection there was a change made they had to change from i believe it was a transformer to a doctor  basis for confidence that this would work no basis for confidence of the work and prior to testing in the winter it's on the street it's a life thing they've got to make sure that it can actually withstan called the handsome damages every single defense sure but we have to understand its opinion and if we think this is a really really strong of that and that it would have been in error not happily consider it and if we can't tell whether we consider it o the jury was right about willful infringement and then he kind of just leaps to enhance damages well he also had it linked the discussion of the rule fifty motion and the the prior use defense and go through the clocks my opponent on the various factors and i agree with judge you and all of you really about i don't want the factory rep i think that some support each of the question i think in this case especially with these very unique facts where you have this extremely long length of time and you have no documentation to show that even was experimental contemporaneous with the supposed experiments i think that creates a very dangerous standard for anyone to be able to drive a truck through on any type of usage if this is allowed to be called public usage so that's the concern experimentation when you have no documentation and you have nearly three years thirty three months of usage before you go to the patent office i think that's problematic as a standard that's that's first and secondly if i could just briefly on the halo issue i absolutely agree with  hughes as you might expect i think that the this is a dangerously close to simply saying the jury was right on will force their form and multiply the damages by two and a half and i think the factors of halo are not nearly met here we've outlined that substantially there's no egregious nature here there's no piracy opinions of counsel were sought a lot of consultation was done and to the to the judge's point i don't think any of those were really considered i think it was a judgment courage a very good judge of it in from another proceedings i think was trying hard but unlike this panel and this court he is not an expert in patent law and so i think if this panel disagrees with his finding that's meaningful this was his very first patent case and so for him to say i think that this is you know public use is not