the court before i begin the argument i'd like to report that mr olson and i conferred before the argument and with respect to the redactions that are in brief all parties agree that the oral argument can refer to anything in  judge had entered the material that was redacted just so that you know was most of the material that was submitted prior to the trial was submitted as confidential under seal and the court's pretrial rulings that disposed of a number of the issues were similarly sealed but we will file such a public event probably should have been sealed at the district court level and one of you must have requested i can tell you that it was not me because i wasn't in the district court the boat each side requested confidential treatment during the pretrial proceedings or proprietary information and similarly i gather in that with respect to the enhanced damages issues but i wasn't counsel you may i certainly hope that i'm not going to use my argument i'm defending this in any event we've agreed now with respect to my argument this case this appeal raises several significant issues going both to the adapted to enter of rules limitation of claims one was added three or four years after the patent was application was filed in order to obtain an order to overcome several prior rejections and there is nothing whatsoever in the written description of the patent either as filed the p c t application filed in one thousand nine hundred ninety or the national application filed in june of two thousand and two or even given even adding the column and a half of new material there is nothing whatsoever that describes adapted to enter a group simply or expert testified in his report while cutting groups or explained most recently on bach an area that in your opinion for the panel and i see medical the written description requirement does prior art doesn't overcome the function of the written description requirement and more the information available to someone still in the art is irrelevant to what has to be in the specification with respect to the written description requirement not enablement but the written description requirement this court has said repeatedly that it serves not only a possession function but it serves a signpost in function in area and in i c u medical you quoted the statement in rochester that set the purpose of the written description requirement is to ensure that the scope of the right to exclude as sept fourth in the claims does not overreach the scope of the inventor's contribution to the field of art as described in the patent specification now example suppose that in my specification which is to a very complicated invention there's one ethical dimension i talk about joining two parts of it together with a group during prosecution i cancel my claims and then them and instead insignificant has nothing to do with the novelty but the suspect never mentions the word male and in fact in the preferred embodiment the only disclosure was in fact this through are we going to say written description prevents you from using the word fastener in your claim because the only thing in your sex with the word no this is not a case in which the specification identifies describes a species and there is a broader genus claim there is with  welp we we argue to the judge in the market hearing that it was indefinite as opposed to no action it's a way to tell me what was missing what how would they satisfy the written description if you will what they  look at the four seven seven application which was dr marty s earlier application there are figures that show the grooves there are figures that show how the anchors engage with the grooves there is there are paragraphs of description about how the grooves are cut and and several figures that show the tools and explain how it's done and there's no doubt that everybody skilled in the art you're suggesting that there has to be some description which proves how to cut the group whether there is a groove or not for example there was no dispute in the record the person skilled in the art understands that protrusions in metal prostheses that attach to ball can either be self cutting that is there simply pressed into the ball or they can slide through rules that everybody in the art knew that either could be done and by the same token any protrusion whether it's a spike a peg a keel rod whatever certainly can be slid into a group of some sort but there are all manner of grooves that will not really a fix a protrusion and vice versa and the point here is that both s s and the judge with respect to this issue said two things they said well the four seven seven for our point with this and i think we have we've course have a another written description failure with respect to operative engagement that i'd like to address but our submission on this is only this there is nothing we take case this court's other written description requirement seriously they say the four seven seven patent and indeed the patent application for our own bat has pictures showing the fixation pictures showing the grooves and explications for how it's cut this was thrown in following i think three four five rejections at the very least this is the last amendment that procured the allowance by the that the anchor no matter how i have no idea what adapted to enter a groove means we told the judge when they sought claim construction of this term that the term was indefinite and there was no written description in it there is no such thing as a protrusion that can't be adapted to enter a group of i mean if what i'm having trouble with this i don't understand how that protrusion is adapted to enter a group that hasn't been caught yet i mean it's three millimeters wide with a protrusion that is one millimeter long and a half a millimeter wide and it wouldn't serve any anchoring function at all what's missing from this specification is exactly what dr martin they put in the four seven seven application and their entire defense and the basis for the judge's ruling is that the four seven seven applicant specification was incorporated by reference which it certainly was not under this court's case up and even putting that aside there is still testimony by your own experts that supports the notion that someone would know what it is and and then how to put something into a group and maybe that there are particular groups or particular types of groups that are unknown that would have to be described that may be what was happening in the course of an application but here all it says is that the that that that is the anchor in a room but doesn't say anything about what kind of group that's your problem well i think that that's their problem this was the limitation added at the very end of a very long prosecution following multiple rejections four obviousness on the anchor that procured the issuance and i mean i have i will rest on my argument on the papers with respect to adapt it to enter a groove but take the liberty of continuing on written description to operative gauge where i think again the failure of written descriptions your illustrate so clearly how s s r i rendered its patent invalid when it copied its claims to try and cover products when dr martin day applied for this patent he expressed as its object and improvement on the prior art by quote minimizing the structural hype of the i upon insertion and the specification explained that this can be accomplished oly with a device that has two plates that are flat and are designed to enter messed with each other for purposes of insertion between the perp and then a third piece which it called a pivot insert that is then rust in between the two plates once they are in place to provide operative engagement between the pivot insert and the upper part nowhere in the specification filed in the applications in the p c t application or the original national application or even the column and a half of new material that was added years later in the specification does the specification permit even the suggestion that it disclosed a two piece device in which the upper plate and the lower plate do not mess like the force the embodiment of the four seven seven patent pivots that is they the two pieces the ball and socket joint which was well known in the art performs the function of operative engagement in our device just as it did in the embodiment of the four seven seven patent but there is no way that the top piece and the bottom piece can internet for purposes of insertion in order to accomplish the inventive aspect of this patent which is to reduce the structural height of the device when it's inserted in between the patient's vertebrae and in fact in column one of the specification the the this patent application disparages this very two piece device that is ours and dr martin nays pro disc one which is the embodiment of the four seven seven by saying not only is this difficult but it also presents the risk of injury and the inventive aspect of this entire application was the creation of a structure and i had not lived with the court  probe disc two which is the environment of going on a day seven one because we wholly have one copy but the way it works it's in the record the way it works is you have two flat plates that when they without the protrusions and recesses that match up and so when it goes in between the spine the vertebrae it's very very small and as the zero seven one specification explains there are holes in the end that are right next to each other when they're internet stood and once it's in you take a device that sticks into these holes and separates them out and then this pivot ins is stuck in to provide the operative engagement and so the family went with when when they asked for a construction of operative in gauge whips we said to the judge the only operative engagement that  disclosed in this specification is pivoting or operative engagement between the pivot insert once inserted and the top part of the lower part of the top plate and if you construe operative engagement any more broadly than that the patent will fail for lack of written description lack of written description precisely of the type this court identified in i c u and trans oh and gentry i think pretty well laid out in the briefs and of course with respect i'm happy to answer questions with respect to the lost profits issues and not infringement of the old man have if my time is expired i only i really only want to answer questions from court issues raised in this case i don't believe that there are any particularly significant issues raised by this case really what i think duf in my view your honor the with regard to what we have here is a jury verdict on the issue of obviousness and substantial evidence is never contested by the other side with regard to only overwhelming evidence that the jurors received went on that particular issue the district court found that there were exclusive rights in the motion in limine a determination on what basis the judge concluded and he relied on the donahoe testimony that there was exclusive rights to sister companies related companies the defendant that can waive the right of one of these companies to collect lost profits on behalf of all of us that's the corporate distinctions argument and we ask had to to you to establish the right to recover lost profits wow why is there a waiver because they didn't argue that until the trial because your honor there was unquestionably lost profits here there were sales there was there was manufacturing that was lost to the cent these families of companies and s s i sought to recover those lost profits on behalf of the family of companies that the issue can be waived by the defendants it's not a standing issue it's simply an company had lost they were all lost and the only argument that we made was that that spying solution should have been entitled to recover those lost profits and we asked them is a do you have any an issue of fact and and the question here i think is whether there was substantial evidence to support the willfulness the fence i believe that there was more than substantial evidence to support  quote if it doesn't have to be strong it just has to be reasonable in order to satisfy the objective test of c p you would have to show that they had a sort of an unreasonable case reasonable defense correct correct so here we have a situation in which the the judge in dealing with enhanced men says that their position was reasonable so if he found the position was reasonable how could the jury have found that it was unreasonable well i do the first level even if it's true and the judge was talking about whether the on the issue enhancement whether their position was frivolous and he said it wasn't frivolous they even this in a sense it's an issue of fact can even if the judge concludes in his own model and we don't know this because he's evaluating this in the enhanced damages situation which is a different standard than a willfulness and he can substitute his belief for the jury but the for the jury's determination the jury here determined as a matter of fact that there clearly a reasonable defense and we have to set aside the i i don't think i'm i know what i think that the court is and is is required to do is to argue is determine whether there was substantial evidence of the willfulness stanzel evidence to find that it was unreasonable wouldn't your when you be saying we have to presume that the jury found it was reasonable and so what we need to do is look to see if there was substantial evidence honor this one waited one way to take a look at it but remember on the obviously only issue presented to the jury and that was their choice was the issue of where there are or where there are defense was reasonable based on the and so they obtained a patent that related to this single pill that's the one one eight they also after the case was filed they weren't selling the united states because they didn't have  prove they were only selling outside the united states but they continued to make make the product in the united states and they told the district judge well we can easily move the manufacturing overseas but they continue to manufacture the product in them that's the subjective or yeah it's a question of whether it was objectively reasonable and i'm saying is that you can be considered objective only unreasonable based on the evidence including the evidence that on the subject and and that was eventually issued by the patent office it was and then later after we had our we had obtained our patent in a continuation application they admitted to the patent office that i justify that your honor this is just a call in or in any junction an appeal was taken on that this court modify that injunction i don't have any problem with a modification of that interruption this point in time who to eliminate that part that  shipped abroad and now the injunction says you can't sell us and if i if i understand correctly you did not seek damages on those items that's not part of the damages or correct any we saw damages on any product that was manufactured in the united states any product that was meant to recover damages for those items trucks there are if they were made in the united states we argue that that was an infringing act and we as so how can you enjoying the sale of them if you are in the recovery of the license fee for oh we're talking about a future activity you're on of the injection going to future activity but future activity for items as to which they've already paid a license  as part of the damages and that's the part that we are not going to we are not pursuing here at this point in time to the extent that there have been products and they don't have any more product that were made in the united states located in the united states they've all been shipped overseas solutions had with or there was they had they had made an argument that they had a right to recover the defendant had ever objected to sponsor lucian's right to recover in fact the way that argument after the recover it wasn't going to address that because of the because of the pretrial conduct this is not a standing issue this is a total waiver issue in their opening brief on appeal they did not raise that issue they did not argue that there wasn't a waiver rationale correct then for the written description of a death to enter a group because the district court relied on the four seven seventh's disclosure as providing the necessary disclosure that ought to be in the past well i think i think were important issue for this poor is and i think the easier issue for this or is that with regard to this attack to enter a groove there's sufficient disclosure in this package one of the things that we don't two things that i think are important here is that and this goes to actually to both of the written description issues they this pattern talks about that the objective here is to have minimum structural high and that is to make it easier to a to invention to have a minimum structural to make it easier to implant and then he talks about having a minimum structural height to make it easier for him so what does that say about adapted to fit in a group well what i'm going to what what i'm saying is is that the vertebrae have to be spread so you don't want to have to spread the vertebrae for pens and so and you have i mean this is very confusing i mean what data to enter move it sounds as though we're talking about description of part upper part isn't body it's flat on its top that's creating a support base five on which various kinds of protection six of it are disposed which serve the purpose of anchoring the other part in a vertebrae that rests with it and faced toward that those skilled in the art recognize that you could you could cut a groove or you could form a group and if the implant is going to rest on the face of the vertebrae name you have to be one skilled in the art in the we're obviously was even to me not one skilled in the are we if you're going to have a support face rest against the inner and vertebrae and everybody knows how to cut a groove and the pattern shows that there's a substantially heel that rises above the support face that's that that keel is going to go in to the vertebrae the adjacent vertebrae so it's going to go into that group so i believe the fact that this there is this language in here is establishes that the keel is goes into that group the only end for written descriptions purposes area confirms we're talking about the specification as of that priority date claim which was the application that was filed without the column and a half of new material although there's nothing in that either to that the original specification says and i will i will get my patent as ready as you have yours it says that the only thing that it says whatsoever about anchors is on about this case is that at the time dr martin a filed his application he said there is one and only one advantage here over prior art and that is the ability to internet's the to play but he didn't even mention  is no way no way that any protrusion whether you call it an anchor or a teal or wing keel or anything like that couldn't satisfy that function but that was added as a limitation to obtain patentability and they didn't include any written description to support it that's our case i mean the fact that the man in there before she was meant could have been in there before point one and point two the claims themselves  of the description the deed this is i mean this is a classic example of the kind of written description failure that the court has identified repeatedly where there are claims that are added later claim limitations added later like gentry gallery an i c u med and trons where there is no written description whatsoever to support it and that's their fault if it's simply another manifestation of how different what it is that they fine we amended their claims to do in order to try to cover our device after they saw what from what they had originally filed and when they originally filed their application they didn't even mention a single anchor forget whether it was adapted to enter a group or anything like that because it was so obvious and is their last letter to you i just want to correct the record with respect to two mistakes that my colleague made first with respect to lost profits you asked where did the judge find that there was an implied agreement page a one seventy eight page one seventy eight of the appendix the judge to to make such a file finding he never found that there was an agreement oral written implied or expressed and we never waived any rights with respect to s s i's ability to recover lost profits in