difference was now using series of colored lights to show how much current was flowing but instead to use a digital display to show you the divine current going through the plug strip but that idea had already been demonstrated existed in the three happened and the statement that everything had to be in the box could itself and what they argue that is for the seven seventy one  both had one and that there was no difference that was the the argument that s g i made in the trial court consistent from the beginning before trial during trial after trial but the but the but the cork didn't instruct the jury that there was such requirement respect that seven seventy two well that's true on a but they were nope nope no party in the in the in the courtroom never suggested it didn't have a one piece requirement that was in fact what the jury was told over the over again with this demonstrative referring to take seven of our brief that the essence of the invention included forty elements one was a vertical one piece and that was there was never a differentiation made by s g i because that wasn't their position at the time between the five forty three and the seven seventy one and so there is no reason whatever to think on the actual facts of this case that it ever occurred to the jury that the seven seven one lacked a one piece requirement they were that's just the way the case was presented to them indeed s t i was still arguing that in the post briefing so of for them to come into the court here and say the jury probably figured out by itself that there was a difference between a device and plug strip and one was a two piece or could be a two piece and the other with couldn't simply blinks reality in terms of how this case was actually argued it was a clever way for them to kind of come up and maybe find a harmless error argument on appeal but it's not what the jury understood or could possibly of understood and the fact that they didn't propose an instruction with respect to the seven seven one doesn't mean that the jury had any doubt about what what the what they thought that the patents meant and indeed what the court held that meant during the trial and prevented us from making any argument about it not having a one piece requirement over those that one that claimed discretion is clearly erroneous and if you look at the actual language finding perspective the secondary considerations of obviousness because they're looking at the wrong thing they're in a different invention they have different things that would have to be combined from the prior art if you had a one piece of requirement there's a third piece of prior you'd have to bring in so they were analyzing what motivation to combine commercial success all of these things would be very substantially undercut i submit by a by their mis understanding the scope of the invention in a very important way a lot of what the evidence showed was th customers liked the one piece configuration of the actual product that s g i was selling and that was a feature that was touted by them and but that that's not relevant to the secondary considerations if that's not a feature of the invention and since it's not  i think that very strongly undercuts the secondary considerations of certain types us to a least a new trial but you know the reality is what you take that requirement out of the patent and out of the invention you just have slapping the digital display on existing technology and putting a digital display the plugs for had already been done in the prior art and so i how you you know i don't think this is a case where we need to go back and have another trial on the obviousness of that invention there what they say is well we were doing it for a different reason we were solving a different problem we weren't just solving the current overload problem we were solving the problem of inefficient refutation basically saying you could use this digital display to get as many servers on your rack as possible before you get  overload whether that's really a different problem or a side of the same coin i'm not sure but it doesn't matter as a matter of law in your case our first think case our says is doesn't matter whether you don't just focus on the problem that the the i guess i didn't answer by the way the second half of your question generate i don't think that the one piece thing is is really relevant to the fringe militia the infringement issue comes up at the for the seventy nine hundred product line because that and that goes to the issue of whether or not just just communicating current information is sufficient to satisfy the requirement of communicating power information and we say it's not because power information has to basically be communicating what's in the amps and the seventy nine hundred series only so they basically have two responses to the obvious this one is this is a separate problem we were looking at which isn't an answer as a matter of law under k s r and even if you just focus on their problem which is how it having it the ability to officially utilize the r putting as many servers as you can before you get to the limit i mean i think your problem on the mall issue is that you've got all these findings about secondary considerations by your and i guess what you're are you use that even if there are look at where the prior art was you look at how much difference they made in the prior are how much innovation was there was there some technological innovation or some some sort of surprising technological outcome here and there's none of that and so you have these secondary consideration findings but they are then it you know there are there we can avert for a variety of reasons one is there tainted by the fact that the jury misunderstood with the invention was because of this one piece special we had before and there's a very thin evidence of nexus to the what was the actual invention which is the digital display they just basically said there's lots of commercial success of this product because of all its features that everybody liked all their features and that's that was kind of the evidence that was put in this is occurring at a digital display slap it on your plug strip and they did that to a server plug strip as opposed to the smaller plug strips which were at issue in the loop but that by itself can't be a sufficiently inventive change in the technology to and sometimes juries make mistakes about these kinds of things and sometimes obviousness has to be overturned in this court that's what happened in abt that's what happened in the apple case and i don't see an argument that can be made that there was an invention here that warrants patent protection they have product that sold but what the technological invention was that had not been done before is very hard to identify i would submit especially when you leave out the one piece thing when it simply slapping the digital display on the existing technology that we were already selling in the marketplace so like just quickly address than the infringement issue the argument there  that even though the patent requires communication of power information and the seventy nine hundred only communicated current information that that's that's still that's still close enough and what's interesting about this is the district court when it adopted the construction of the term power information which is the the construction that they like to rely on an appeal here which is quantifying or describing power at the time it did that recognize that this this definition this construction of the term would preclude arguing that current information is the same thing as powerful nation that was on page thirty four thirty six of the joint appendix that was an in at the mark one stage that was for some reason later on that the district court sort of forgot that it had come to that conclusion allowed them to argue literal infringement of by the seventy nine hundred eleven no the seventy nine who only communicates amps not watts and the power information being communicated in the in plain fifteen is is specifically different from the plain one inch of the patents which is simply requires of the community current information so they had a reason for putting power information in there but but they were still arguing that it really didn't make any difference that somehow occurred in power of the same thing and then they make it a doctrine of equivalence argument which doesn't explain why it is that they can avoid the prosecution history stop with her they put this requirement in during the we all have allergies this time of year for doing so do you think the one piece claimed construction was correct as to the five fifty three pound yes i do and i'm sorry if we said something or a brief  correct several reasons first of all i think the term plug strip was effectively a term of art they use the term plug strip to refer to lead in the it's never used to there it's not used anywhere in this case we have the preamble to the claim that talks about a plug strip comprising elements a through f and then it proceeds in the claims to use an element f the term plugs for of itself so we have adequate basis both for essential structure and the use in the claim for the plugs the preamble to be limiting that's a starting point then the question is what just plugs for the the specification could not be more clear throughout it refers to it as a one piece device even for example in their argument of argument about a separate chassis that they make that refers to a separate chassis separate from the one please piece plug strip if you look at with card against the idea that it's one please but it certainly can be read that way and i understand the court's question the general term associated has no clear meaning it is a broad broad term of course in order to understand its meaning in the context of this patent in these claims i think you need to look at the context in which it is used in the patent the context is critical the reason i as i think it did the same one piece claimed construction to the seven seventy one so why is that at least a gram per trial there are several reasons first of all let me take your second comment first the court never in the presence of the jury expressed the view well not in the presence of the jury but it did during the trials that same one piece construction applies the seven seventy one at a sidebar conference that's correct but the jury was never ever the court absolutely did not exclude any evidence based on this one or two piece construction but let's get to the thinking point if it is that it doesn't matter and then we try to explain why you know from the briefs that we made two very important fact based arguments reason to combine and secondary considerations with respect to the reason to combine and i should say that in both instances neither away from him but surely of the jury was  had to be on the pork had not specifically made that newly judged by the court it in passing a sidebar outside the presence of the jury permitted our expert to continue to testify according to our fieri of the case which it seems to me is the judge's position is inconsistent on the one hand he says and saying oh but go ahead and double single but go ahead and argue the other side he did not in in candor he never said go view the other side he allowed us to put in our evidence that the term device was a one piece unit he did not then go further and i'm sorry if i misled you your honor i did not go further and say you made you put in the to be sentence but and they did they did not because they were focused on that the one piece plug strip in the five or three that that was the entire focus of the trial that that was all anybody was painting attention to which is why i want to come back bob was your expert testified that it was not obvious because of the one piece requirement and that argument was made in the closing are you one that's correct and what i would like to do is is make the points i started with and that is that all of them don't look want to do that but let's let's assume hypothetically that we were disagree with you we find that there is no one piece requirement of either patent and that the argument of the jury was error in that respect so why don't we have it under those circumstances reverse and remember a new trial because under this court's precedent if the findings of the jury are otherwise supported by evidence that is not dependent upon  like that's the right standard i think that if there's an error in the trial which could remove the jury to rely on one requirement that we have to send back what cases that we don't have to send back the case that i am referring to your honor is the function media case that talks about errors and claim construction that do not necessarily lead to reversal and can lead to affirm you can say it's harmless error here the rest of the evidence cup helps the result but not the mets i think you've stated it better than i did not apologize i think you're correct let me show you why i believe that the evidence compels the conclusion that there was harmless error first of all a b c our first three into related reasons to combine none of them is supported by the evidence the jury's findings on that order the implicit findings on in that regard are fully supported let me just quickly check off some of the important evidence so you will see it has nothing to do with one piece construction or two piece construction first of all the industry participant include a digital display he answered i guess the answer is no and that's in the in the read brief or in the appendix that at eight hundred five five three nine  another independent data center operator mr brown made similar testimony another gentleman mr mares did but bottom line is the evidence fully supports the the point that no one in the industry saw a benefit in you have to understand what the of local problem is all about they'd dramatically exaggerate what it meant every single piece of prior art that addressed overload did so with an alarm or a buzzer because that's what was necessary to call the technicians attention to a single unit out of literally tens of thousands that may be defective or have problems so the overload problem is an alarm related issue and if you alone does not provide a reason to combine and perhaps if you think a little bit about a data center you understand why a data center is not simply taking your home plug strip and and putting it vertically on on the rack the data center p d is as you know from that the art in this patent have curb reporting systems they have switched systems and all sorts of elaborate computer controlled  internal competence just because somebody thought it was a good idea to put a digital display on a little power strip says nothing about whether that would make sense in the data center the data center powers p d is plugged strips current as i understand what your argument is that people knew the voltage so they could calculate the power and that's it seems to me a bit far fetched in the sense that the idea here is to have this void which could be read without me that actually is the equivalence arc of let me talk about the literal infringement argument if i may the key to the literal infringement argument is an understanding of the definition of the construction of the term power information and basically it's information sufficient to quantify or describe what the papel does is it talks are acutely what the seventy nine hundred s is that it conveys information sufficient to describe power because it can it communicate me that it would have to be something that would display of information so that you could read it immediately well with respect to respect judged i think i had not been clear and perhaps in our brief and i apologize the key to literal infringement argument is a communication of whether or not an outlet is on or off that describes how or whether there is power to the op whether it is on or off not the amount we're not part of rush hour voltage it describes is beginning to page sixty seven well we're exact it is exactly at page sixty seven where it begins and then on page sixty nine is the graphic i was talking about that show the the point we are making is that in i guess i would say it is at best seen on page sixty nine and seventy is that the description of power include that there is a voltage present and that current is flowing those two pieces of information taken together can be used to describe power not quantify i acknowledge that but they can be used to describe and this is very important and relevant information because if there is a fault with the unit and the outlet is shown to be on then it is likely the server has a problem if the outlet is shown to be off and it's probably a problem perhaps with the p t or they biased too because we had no choice given the court's rulings the jury verdict form on the obviousness secondary considerations was a single form applicable to both patents so they were asked to  risk separately with respect to the two of them because nobody ever suggested to the jury that there was any difference between the two with respect to the one piece issue with respect to the question of whether or not the specification narrows the meaning of associated within the definition in the not have one piece because there are configurations so there is absolutely nothing i submit in the specification that would lead you to take the word associated with which is quite different from the words of the other five elements which is disposed on disposed with disposed in and then this element you get associated with because there were in fact power strips that had the current reporting system connected by a cable the m s b m was one and so they clearly voted broadly enough to cover that and are now trying to  rewrite that part of their their patent and the motive to combine the the loop patents teach that the way to solve the current overloads is to have this digital measurement device and then set it just to shut off or  do something at a certain number so that it doesn't get to the real overload and that's exactly the reason to combine than that why you would have a digital measurement is to is to be able to have this more granular measure and then be able to set the thing to operate and at a certain level when  strip the other reason to combine comes from the problem they say they were solving which is they've they say the problem was these these server racks were only being filled up to one third of their capacity because the engineers were overly cautious they were they didn't have good enough information about how close they were to an overload on any given record so they would only put three three servers on there instead of maybe five if they had better information so identify that as one of the problems right and that problem with properly described the problem of inefficient regularization because you don't put the only solution that you can imagine to the problem is to give the people better information about how close to an overload they were how do you do that with a digital display of how much current is flowing and so i think even as to the problem they say they were solving it's equally obvious here and it that there is a reason to combine and you would get to the same saloon equally invented something upon your viewpoint well i think at the end of the day you guys have to judge whether that's inventive or whether that's simply common sense that anybody would arrive at a