this is the pattern case where the inventor discovered that if he placed fins inside of an electrical jack rejecting inwardly he could change the impedance of the jack to make it match the impedance of the surrounding electronics and th way the signal would not be distorted when it went through the jack and in the band when a fan is matching impedance that is then called a wave guide the problem we have here is that the parties presented to the jury as i said the problem was the jury didn't know how to decide this and our first point we want to make is that this was something that was up to the judge to instruct the jury on if it was going to go to the jury on factual issues but what exactly would you have the judge because in the market hearing it was not raised by that event as they did not say we don't infringe because we use a different test in our test shows not infringement so the test to be used was not an issue at the mark in terms of the task now that you used to decide or something is a way back so you're absolutely right it didn't come up prior to trial so we've moved to the limiting of that so you might have it by motion limited to exclude that evidence but did you ever patent provides a methodology for for testing that should be a claim limitation i can't find that you point to right is not there and the reason it's not there is that the court order said that the parties had to it out of why the issues we had to identify the reasons why they say they didn't in print and they did not say they did not infringe because they used a different past than the thousand shown about me so i really knew that was just for a moment most of what you just said to me that you read is the issues or the motion and the to some extent the court should have been addressing this imposing this limitation were in the patent does it specify this the patent is about the fact that you discover that fin is help so the question is well what is the dad up with the fins and what is the data without the fans let me tell you what we did to try to assess exactly what the said we did was we took the jack the infringing jack and we measured the return loss then we opened up the copper and we carefully milled outer carp off the fence not changing anything else in besides the fact we took out the fumes we put the cover back on and we tested it and what we found is that the fans felt now they did the same test as soon as they got it not any other tests that they got to get to before the jury they did that and the testing showed that the fins help was causing you you perform the test that you contend was mandated by the claim correct but your contention is that you should have had the benefit so why should the question that the ignore you're saying ignore the purpose of revenge right ignore everything about b p s device that makes it different from the patent the device lot well first of all what you have to look at is what the claims t frenching jack tunes impedance and it's a factual question for the jury no because the issue was what test to use that was front and center the issue that was about the trial that was that there wasn't a need for a trial except for that issue and it was legal because once you identify that is the test there is no dispute about the fact that those events helped in the defendant's structure it made impedance matching better testing that they had done as well on the same tasks which show the same of that course if we if we say disagree with your argument that the patent compelled the particular test you conducted but we say nevertheless a d c did put on the test that it felt was the correct test the question then becomes did you establish by preponderance of the evidence infringement through that test for ect yes ok now the there are number of our human sort of flying around the research but it does seem that the it strikes me that the argument that the other side makes or one of its arguments and in support of the denial j isn't that whether or not i would think is the best way or you would think that the best way isn't that substantial evidence to support the jury verdict that testimony no because stupid is back fundamentally into the the legal issue of how taking out the bin those slots were there not commercial product and in other places in there briefly admit that so it's not like we created anything when we took out a film there's empty space there just like in the past that if you take out a fan you end up with empty space removed and change the slots and change other things you don't have a comparison of a jack to know jack let me ask you that variables in there you're you're making a very good argument i'm not sure that i'll be honest i'm as to why you did have to take out slots and you know we're just looking at it from the standpoint of whether there is substantial evidence that a reasonable jury could believe in the difficulty i have is i can't say that a reasonable about whether finns are doing something and if you compare it jack with pins to a jack without fins and without this and that and that you don't have something that isolates on the fence and you cannot draw any conclusions about what the fins are doing what's and the third reason we discuss this in our group as well is this if you were going to look at the development process and what went into that jack on account of the fact that fins you are importing into that apparatus claim a question about the development which is a process of elimination in other words they are saying if the fins are the last thing that goes in that jack you can do the but if i put the bins in and then i make some changes after that then if you're going to test the jack you've got to done it do a different test you've got to take the bins out and you've got to take all the other stuff out there saying that's a different us they are reading into that l started with and the court asked about is the scope of the patent the cases that are cited by the appellant here are not cases that say that the proper task to be applied is always a question of law what they say is that the court has to construe the patent and the claims patent there are process athens and so forth where test are provided for in the patent here the patent which of age eight fifty seven at all of the record and specifically the section that was referred to by mr carlson column nine lines eight through twenty or so and the accompanying figure twenty six second point here is that even the patent doesn't provide it doesn't provide a test but if it at it would not be the test that the plaintiff did hear and that was the criticism of the task is that the projections are the fans in the center of this box or jot at the bottom those fins fit into slots which are created for the fans and for no other purpose if the fans alone were taken off that is to say if they were shaved off at the bottom and up the top that would have been appropriate asked they were shaved off at the top and pulled out the old or the slots at the bottom when they did that that created air in the place that was previously fill in other words the fans formed a part of the base of the jack the proper test and the criticism of the test that was made and which was a question of fact character trial without any regard to what we put we put on the f actually heard the impedance matching here but we also criticized their task to say it did not properly isolate on the fence it took out fins and by doing that it created new slots which were not in the commercial product there were no opens flops in the commercial product when they took the fins out they might have taken them out from the top to left over walls where the fins went through the top is a what was the test you were proposing to acco y that well we did several test to account for that but we didn't pass that serial or lemonade at the slots at the bottom and took out the fins and therefore you had the printed circuit board without fans and in all other ways like the commercial product that is actually comparing it to the commercial rough it is pins and no slot that's right you always start with a commercial product and what they did was they commit compared the commercial product to fins and slots we compared it to the commercial product with no fans and no slots because there were no slots in the commercial props used mr or no having either by me for jumping you know you because you know time is limited here yet but i thought that was the i thought the other side was making art and i understand your argument as to the deficiencies in their test you discussed this with the judge judge prose but i thought there was a problem with your testing in that it was of your devices the other side of the picture in that prototypes were used well had the ts the t x model is the is the accused device correct right yes that's right and by the way the t z was the substitute model and it didn't not use fins at all but it controlled for all of the return lost by slot so slots clearly are confounding variables here they do have that they need that criticism up as it is not accurate but we did was we compared the commercial product to a product that was a prototype that we use because it had no slots in the bottom in other words it was actually the right comparison no fins no slots i think our cast proved to the jury that the fins here did not and didn't match but if you throw out articles i think it is your question illustrated earlier the finding here wasn't that offended prove something t finding was the plaintiff had failed in its burden of proving that the fins here were for impedance matching or had that effect therefore you could eliminate all of our pass completely from the evidence and we could have stood on the criticisms that we made of their past that they did have the confounding variable of open slots which do not appear in the commercial product so that either way there is room for the jury to find that our tests were correct and that the slots actually help another problem crossed fought like on cell phones but her as to this problem jury got to believe that and you have to sustain the verdict or they could believe as the finding of the judge on the jama j m o l was that they but let me finish that's fine but you have you have another night of that let me then just finish with this let me review just to put it in context that there are then five separate reasons why the court summerall  method it used to expose new slots which we know by the t z and which they acknowledge in their replies to impact the return loss so they had an open slot uncontrolled and mr n improves return loss is quintessentially quintessentially a question of fact as the truck court below urged he said it was two ways as he wrote he said it was two ways of looking at the same problem and that's consistent with the sole issue here for the jury on liability an infringement did this product our product the switchcraft probably fall within it or not and plaintiff at the burden of proof on the third reason it seems to me that the court that it could have accepted our criticisms of their past and found the plaintiffs at not met its burden of proving that it's tested properly isolated on the projections alone and that confounded with the creation or the opening up of slots which do not appear in open form in the commercial product and then finally we or that as the trial judge judge sauls disagreed with the with the claim construction here and we urged that as an alternative basis that the court could look back at the claim construction and in language here in the language from the p judge schultz by the way says he disagreed with judge one government's construction that's page thirty four part three the language is that the projections have to be positioned to provide positions to provide matching that is put there for a particular purpose that sounds like language that involves intent or purpose and intent or purpose unlike their argument in their brief and of course the objective really determined but what it would leave room for here is exactly what occurred in this case is being put in for a different purpose a cross bar purpose and if the jury were to believe they had some incidental effect on the issue of the peyton's that would be permissible under this patent properly construed because there was testimony that when you take one of these devices and tun or optimize it you have reached a local mountain peak you have got the best jack you can it and given all of the factors that go into one of these chaps and therefore any movement away from the i'm not saying it's the best in the universe it's not the highest peak but it's the best for what it is it's optimized and away from that local mountain peak is a move downward things will decline because you're moving away from the judge used the example of legs on a cabinet i like the one the expert used at trial reset if you consider a cathedral or a musical and you want to make the sound quality as good as possible you might use tiles or bad holes and you put them up to optimize  if after doing that you took out for example about the need for reason saying having to do with the fire code the sound quality with decline but it would not be because the balcony was there to improve or having the effect of improving the some plot it was because that was optimized and built around and that was the scientific and heavily debated scientific problem with what the plaintiffs used as their simple past when you optimize a job that is designed to maximize all of these things and move away from it if i punch a hole in the job it will cause the return loss performance to the client it doesn't mean that punching the hole is a patented feature so any expansion as there urging to read that the past is a part of the patent would expand this to include all ribs or features and they got because any was improperly construed to rebut judge shilts that it should have been construed to have a factor of intent mr carlson acknowledged that side of the page thirty five are very that if that's the proper construction there's no way they can win on that construction because there was no evidence of anything other than an intent to address a different kind of problem so for all those reasons we would ask the court to what was a very thorough and careful job by the judge below ok i want to be certain about one thing and that is that this criticism that they made of our test that it should have been different was not a test that they ran or that we ran to the jury this idea that you test the t x against the t x jack with the fins removing the slots removed and anything else that was there on account of the defense that wasn't tested the jury didn't see any evidence that the party said this proves a non infringement and the reason they didn't see that testing is because going to the trial it was not a gun to fight it was an issue about what test to use and the test transcript or not on the part that i gathered their argument was ok but that testing was defective because because we didn't fill in the slots but i just want to point out you're saying there was no actual testing done  corp no testing was done of that test with the slots filled in by anybody it's just that what we're dealing with here is is competing expert testimony on this point well we're dealing with what the patent would require that is  in our opinion it was a matter of claim construction know until just on the slots issue that's a question of expert testimony it's a question of what the patent would say you ought to do and in the context of that device how do you test the patent to decide if something infringes it that would be a legal issue but factually i just want to point out that this test that they say should have been done by us was not done by us or by them it was an argument that they came up with  clear me up because i mean they're willing to sit there were defendant exhibits where they're not that show the differences now show that there were defenders exhibits that test that of we don't do jacks that were early in their development process that the the next one i would like to make is that this optimization that he's be talks about only goes to prove that the fins are helping if you take out the pins and the return was goes down what you wish that was is is that the fins are helping the impedance matching the return loss and his mission that is optimized is essentially an admission that those fans are in there and they're helping and that's what the case was are helping i look at this with my glasses and i keep the paper the same distance away and i look up at it without the glasses and by golly the glasses help i don't change the location of the paper i can't change anything else besides