i'm going to rely on our brief for most of the issues but what i'd like to focus on the most were guess my question is on them is the pre judgment interest issue and the issue there is did the trial court error when it ordered on summary judgment the payment of over one hundred seven million dollars in prejudgment interest particularly where there was an agreement between the parties that limited damages and there was a statute that did not call  years i think the first the most important thing is we have to look at the agreements between the parties because that's what was negotiated and the court can find that agreement i believe in the record at a three breach i would i would argue that the damages as it used in that provision included this was a fifty percent royalty included prejudgment interest and the parties  everything they card when you look at the next sentence that particularly said no one answered damages to make sure that the only amount of money that would be due west of fifty percent of apa texas net sales and that's worn out by paragraph and of the agreement which includes a very specific provision for interest so where the parties intended to include interests they included where they didn't they did this  regular dams so i think that would take it out as well in the written agreement the other part that takes it out is this case was brought under thirty five us c to seventy one which contains its own damage provision and the four which is not call for pre judgment interest at all and if we go back and look at the supreme court case in general motors company they make it very clear that where congress excludes some type of damage it's excluded and in that case they were talking about two eighty five and why prejudgment interest was specifically include when we look at section two seventy four  four we find that congress specifically acts looted all other forms of damages other than  attorneys fees under two eighty five it says in c of two seventy one easy for c damages or other monetary leave may be awarded against an infringer and it tells under what agreement i want you to go back because i have a very basic question for you does your understanding of the word damages include all things that would arguably within that profits you know market re entry whatever that the millions of different sorts of damages different kinds of damages do you believe all of those things are encompassed by the settlement agreements use of actual damages is that how i understand your argument so when you said actual damages in the settlement agreement that that encompasses anything that could be arguable arguably entitled to in the form of damages kirk so your view is the word actual damages includes you've already factored in prejudgment interest to the extent the parties wanted to have but that's your view growth and if you go back and look at the previous agreement that had been entered in february the amount of damage percent so these parties were negotiating and that's critical what you just said if the amount of damages was seventy percent and i think that very precisely states what i understand your argument to be when you first it up maybe you missed it you said the parties agreed that the reasonable royalty rate would be fifty percent and i don't i didn't that's why i'm asking you this question because i don't see that the settlement agreement says fifty percent is the reasonable royalty as distinct from the full measure of damages and i didn't think that's what you wanted to say no no whether it was going to be lost profits reasonable royalty interest on whatever the judgment was was one put it under damages and that was the purpose behind it the goal of each party was for to protect themselves in the gauche it was remember at the time of this agreement beginning i think in actually this month june that while last month june of two thousand and eleven if the regulatory had approved it and that was pretty good agreement no royalties to be paid no damages go to sell and the only competition they would be facing would be from an want to write a generic if there was going to be an on the russian or this provision was to protect it if there was a failure nappa techs want they wanted to protect themselves from the amount of total damages they would be liable for and looting any any prejudgment interest out you know when you negotiate a fifty percent and now you're actually with one hundred and seven million dollars adding another fourteen percent to it were redrafting the agreement the agreement here was to protect app attacks should it go to market if there was regulatory denot there's a what about you you pointed out the reference  er that well that shows that when the parties wanted to and exclude something that normally might be available either to a or they knew how to do so but they didn't chose choose to  exclude the pre judgment interest part of two eighty four what is your response to that well then we're saying damages include to pre judge when interest which is what we're saying the term here means i mean you can't have  the supreme court in viewing too weighty for in the g m c case looked at the written statement that included prejudgment interest and said that was part of the damage calculation because they wanted to make sure that the entity who had the rights to the patent received not only the the dollar benefit of it but the benefit of the money that they would have had had they had all of a royalty said that it that the general rule is that the judge made her should be awarded and i'm just wondering if you thought there was something more that that case should shed well i think it does two things one wished to women an element of recovery and a patent infringement action it said so explicitly and that's what they did with two seventy four two hundred which this case was litigated so there is no prejudgment interest in that section and for the award of damages so are the reimages includes pre judgment interest ways and expressly allowing the awarded damages but then if that is the only you can't have it both ways well actually what i am arguing  term damages there includes pre judgment interest then damages in the agreement occluded included pre judgment interest if the court is going to say no damages doesn't include pre judgment interest and that applies to two seventy one eat too as well if you're going to be consistent it doesn't include damages it doesn't put pre judgment interest in damages because when you look at two eighty four it explicitly said it's damages including prejudgment interest ok let's not get t damages together with interests and costs doesn't just together with interest etc so does that mean interest is a form of damages or does it mean damages to gether with interest and costs because certainly you would argue a court costs are measure of damages no but i would argue that interest is part of the damages that are talked about if not i had my chicago manual style of my strunk and white out and i was analyzing this sentence over and over again because grammatically what the sentence says is the claimants damages out of what the cubs ticket for infringement but no one less than a reasonable royalty together with interest and cost the second second the second sentence about reasonable royalties being set off by a comma before a comma after actually means that damages is something different from interests and cos i mean it's just straightforward grammar and i can't get around it i don't know that it's what congress intended but it's grammatically what  what i'm doing as i'm going back and reading the g m c case where they talk about prejudgment interest being part of the damage kept away that that's where i'm taking it from i understand what they were saying with the way it's set out  great foster not a measure of damages i agree with you so if costs are not a measure of damages grammatically then the word interest can be either at least under two eighty four trust me i feel your pain i'm all over on this back and forth because even when you look because councils confined himself to the pre judgment interest issue i will make your reply to this issue i will as well thank you all i'd like to ask you one quick question apart from that in your brief european lee say there is no right to a jury trial under two seventy one eat or c but given that to seventy one he foresee affords actual monetary damages i don't see how that's possible that the amendment guarantees the right to a jury trial whenever monetary damages are at stake well it may be that was our point your honor there was a right doesn't arise because of that statute the right rose as soon as they launched at risk and we incurred monetary damages indeed we were sitting there at the time wondering when they were going to ask for a jury because remember they had a judge who would already entered a preliminary this is the riposte or child case for the exercise of the district court's discretion to award pre judgment interest the whole point as we understand it of the general motors rule and the reason for prejudgment interest is to provide a vehicle to an injured plaintiff to recover not only the damages that it sustained by virtue of the conduct in question but to compensate that injured plaintiff for the time it takes to then recover those damages that's why courts award pre judgment interest and the reason i say that this case is the poster child for is we've been at this now for nine years this lawsuit was filed nine years ago it's been five techs launched in advance of a preliminary injunction hearing and a trial which took place about six months later that infringement took place in august of ninety of two thousand and six we're still waiting the money is now deposited finally with the clerk of the district court we still haven't been paid and of course now since judge was entered which accruing a treasury bill rates this is post judgment interest we've been this is our fourth trip to this court fourth time in this case and there have been t explicitly does say that when it says actual damages are limited to fifty percent right and i want to turn to that now i wanted the context of why we believe that this was an appropriate exercise of the district court's discretion let me turn to a contract if i may if your hon looks at section fourteen of the agreement which is the section  i would ask the court to ask itself what would the state of clay have been in terms of our recovery of monetary relief if there had been no section fourteen at all and the reason i ask you to ask yourself that question is because what we did in section fourteen was an exercise in subtraction we gave up we limit our ability to recover we didn't get anything that we weren't entitled to under the law we in fact limited it and we limited it in least two ways we kept the calculation of damages at fifty percent of the net sales of app attacks so for example we gave up the right to calculate our damages a trial based upon our lost profits which would have been a larger number and we also explicitly said that we will not see increased damages under section two eighty four the parties were obviously aware of two eighty four because they explicitly it carved out of of the remedy where to which we were titled under paragraph fourteen the increased damages we never said and were also not entitled to interest while pursuing the same reworded actual damages would include everything to make the infrared the patentee whole from the infringement which would include pre judgment interest not see triple damages are not to make the patentee whole and we know that that's not have compensatory damages so that's why it clearly had to be separately carved out of it can't even arguably be encompassed by words actual damages that is their argument is that that the word actual damages includes that your honor there's the i understand their argument there's absolutely no basis for that whatsoever well the supreme court has repeatedly said in general motors  other cases that actual damages and they've actually use those words quote actual damages in with prejudgment interest which you understand why wouldn't we give those interpretations and if that in the context of the patent statute so why would we give that interpretation that's the case then you would when would you ever get pre judgment interest if you were in fact collecting your damages you would always be deemed to have been given that remedy as part of your damage and yet the statute says two eighty four says to gether with as your honor pointed out in connection with your conversation with counsel it doesn't say damages and not address interest and to eighty four is the section that deals with be the two sections we're dealing with two seventy one says infringement it tells you what constitutes an infringement particularly for this purpose it tells you that if somebody applies for and a india and that is an act of infringement of the statute it also says that you're only entitle to equitable relief unless you know only one case there is commercial activity in the marketplace which would entitle you to damages otherwise you're not entitle to it does not say how you measure is your to seventy one e switching gears could just made me think of that i am sorry i should let you finish but to some you won't eat or is your argument that that represents a safe harbor that basically there is no actual monetary damage that is recoverable from the filing of an end it's all the filing of an end in conjunction with two are i read that to say for example you cannot seek damages in connection with the act of filing the and because c says damages are the lead in from four cents for an act of infringement described in paragraph to which of course would include the filing of an end and then you going to see damages or other monetary relief may be awarded against an infringer only if there has been commercial manufacturing center so what  saying is only in the circumstances that we're precisely involved here which is to say at protect sold hundreds of millions of dollars worth of our patented product to the market in august of two thousand and six only in that circumstance under the explicit language of forces are we entitled to seek damages nowhere does this section tell you how you calculate the damages or what the measure of the damages is for that you go to the section of the statute which is entitle the interesting damages there's nothing in two eighty four that says it doesn't apply to a particular section of two seventy one or that it does apply only to a particular section two seventy one it just says damages and upon finding was an english teacher we call and a positive phrase and then it picks up with the rest of the affirmative so i asked leaning was i was yes you're a many years ago before you were born but i was an english teacher many many years together with interests and caught in the south bronx very simple the statutory scheme here the statutory structure is pretty straightforward you look at to seventy one to determine what is an infringement you look to seventy one to tell you what remedies you are entitled to in the bit to kill instance of an infringement under section two our case is covered explicitly there it's an and up and it falls under the sex subsection c three which says and in the case involving enda where there's been commercial activity in the marketplace and only in that case you're entitle to damages how do you know what the measure of damages is you go to the section of the statute that's called damages which is not limited in any way shape or form as to its applicability with respect to other sections of the statute and it tells you quite clearly in simple english even in bronx english that it's it's it's to make the claimant at give the claimant damages adequate to compensate for the infringement together with interest and costs and i would submit to your honor go back to dr morse question the statute is quite explicit and i respectfully say to this court the general motors case simply should not and i don't believe can be properly read to say that it trumps the plain meaning of the statute which was passed afterwards i believe it just says and as happens in every day in every case and i where are you you find out what your injury is the law tells you what your measure of damages is for that case whether it's a contract case and your getting breached damages or a tort case you get an injury damages or in this case an infringement case in which case you're getting to eighty for damages and then the question is how show the court exercised its discretion to either award or not award pre judgment interest and in this case the trial court exercised its discretion to award it and to determine the rate at which it should be accumulated and there's nothing unusual about it there's nothing extraordinary about it and i would submit there are thousands of patent cases that come before this court in the district courts this country in which pre judgment interest is worded every day so the only conceivable argument that they have here i would submit is not that the statute doesn't permit it when counsel said in his argument a few moments ago we have a statute quote that does not provide for damages i say respectfully that's just flat out wrong it explicitly provides for damages in precisely our case the only question is whether the contract somehow change that and so again let me turn with that back to the contract because it's not the statute that gives them their remedy here and i would submit to your honor that the contract doesn't either first as i said section fourteen is a subtraction section it took things away we read to limit our damages specifically as a matter of contract you know that that argument you're  suggesting that you somehow able of this away and didn't get anything you got the certainty of the exact amount of damages and conceivably you saved your client a ton of money that would have been spent litigating whether you can successfully prove lost profits paying the expert to do all that now of course you've turned around of this whole prejudgment interest and they probably ended up paying nearly as much in lawyer fees as they would have anyway on it but i mean it didn't end up saving the point is that the contract wasn't written with the clarity that you all hoped it would have been in terms of saving for future lives away from future litigation so i let me then why wasn't that what you got out of it at the time you entered into it was the certainty the avoidance of litigation  your i'm not suggesting we gave something up or two to sleep is a contract it was a bargain we gave and we got so i'm not at all trying to suggest we didn't get things in exchange for limiting our damages what i'm saying is what we did not limit and what we did not explicitly exclude we have and we still have we have a statutory right under two eighty four to interest there is no case cited to this more none and we couldn't find one which says that in drafting a contract you must explicitly resign all of the statutory rights that you are reserving you were entitled to under the contract if that were the case contracts would be loaded with the dent of all the statutes that the parties were not surrendering is it your belief that the word damages includes interest or not the sole remedies available and uses the word damages because your honor it doesn't tell you how to measure the damages it just says you are entitled to damages you have to look to the portion of the statute all damages to eighty four which you would do under every doesn't it says damages or other monetary really or in the alternative my english teacher is jump given conjunctive are you allowed to get damages and other monetary relief or damages or other monetary of absolutely  course of course there is and i hesitate to lecture the court on grammar so i'm going to be very careful but let me let me just answer your question there are two forms of just jump to phrases we're going to have an english class here there are  or is often used in common parlance if you mean and or not it is only when it's an exclusive disjunctive must you have a or b and for example very often a contract but they will deliberately put a semi colon after first phrase and then put the word or outside the tell me colon and put it separately bracketed subsection letter a or b before the next phrase or is often used as a non exclusive disjunctive so you ran under this logic then you saying you could have also got in trouble damages under two seventy one or c but we excluded that you're on no in the contract no no no no no we're talking about the statute i'm asking you whether the statutory use of the word damages includes interest your argument to me is it includes everything into eighty four to writing for includes treble damages right i can't imagine hell you could get treble damages under two eighty two seventy one and four see whatever well your honor it would depend as you well know in order to get trouble damages you have to meet a certain standard in order to increase your damages willful infringement for example it may well be that you could not demonstrate you always willfully filing and yes if there are any argument willfully doing it but i can think of no then you would always be entitled treble damages under two seventy one you foresee in light of your english language construction of no your honor i don't think so because because under four c under it is the only time that you can get damages in connection with an and it says only if right only if there has been commercial manufacture use offer to sell or sell in the united states of tara so we would have to be the activity that is covered by four c that would have to be willful because it this statute plainly says the filing of an end itself while an act of infringement only allows you to collect damages if there is marketplace commercial activity of the type described in foresee so the fact that the filing of an end is willful does not entitle you willfulness damages the activity in the marketplace the commercial manufacture use or offer to sell etc must be willful because that's the only words of the statute your honor only circumstances in which you can get them just so what i smell when i answered your question so we're clear is you filing and you cannot tell trouble damages for that but suppose the activity in the marketplace thereafter constituted willful infringement of the path just as it would in any other patent case which didn't involve an end of course you could claim that you're entitled to treble damages and you might or might not satisfy the willfulness standard the statute covers it quite clearly problem is your interpretation has opened up the door to any form of monetary relief that the statute otherwise provides elsewhere to be so wet into a two seventy one e case despite the fact i mean i have to give some meaning to congress words the remedies provided by some paragraph a b c in the are the only remedies that may be granted by a court for an act of infringement except you can award attorney's fees that whole sentence would be injury that ice i saw damages for injury that i sustained by virtue of your having files there and you haven't done what appetites did you didn't launch it risks and go into the market sell hundreds of millions of profit of dollars a product in competition with money you didn't do that you just filed and what this statute plainly says is that you cannot collect damages that flow consequentially from the filing of an anda because the only circumstance in which you can get damages in connection with an infringement that flows from an end are the circumstances that are spelled out in simple english in four city and those do not include the filing of the ndaa they only include commercial activity manufacture use or for to sell  so i say again the words of the of the congressional words of statute plainly have meaning they plainly has excluded any damages that are not the consequence of the commercial activity that follows the words only if in section  corporation were at the direction of with the authorization of and with the cooperation participation and assistance of apoplexy inc we sued them for infringement they never made a peep about not infringing they had a judgment entered against both companies for infringement they came up to this court appeal that judgement never said a word about ink not being liable for damages not a word if there's a rule of waiver in this country they waived it when they were if you will never raise that issue they've raised it for the first time now and they can't get around the agree with the general view of the statute that you've been propounding that if there are sales that would be regular infringement in addition to what we call the artificial inspiration of two seventy one to the half works what is it then damages for those sales you look at them to wait for but isn't in this case isn't it logical to think that if the parties had concluded that their words was to be prejudgment interest given the huge dollar amount that we're talking about here experienced lawyers on both sides we referred to the very section of the statute that says damages to gether with interest and costs we excluded the increased damages under that very same section the statute we said not a word about the interest question because we were not excluding that the statute intitled us to it we believe it was the court's discretion to give it to us or not the court exercise discretion and one last point counsel keeps referring to another section of the statute we provided for interest that was a section that dealt with there's no statute that says when someone destroys inventory on hand and is injured by that that you will pay them interest that's why we provided for interest under that section because there was no underlying statutory guarantee what we're talking about here is infringement damages that's what two eighty four deals with explicitly and i say again in conclusion it is not the law that you must list every statute under which your expressly retaining a right when you enter into a contract if that were the case contracts would be unwieldy we're not obligated to do that the law doesn't say we have to do that and indeed to the extent there's any law on the subject i would refer the court to the second circuit decision in a case called valley disposal seventy one f third ten fifty three it which the court addressed that very issue  what the parties discussions were prior to the contract i know we have this this memo that's in the record yes and there's the declaration by mr show and isn't dr germ ducks or is there anything else in the record before us that reflects what the parties were saying about the question of prejudgment interest your honor i want to answer because i always want to be sure i'm accurate answers that i don't i don't believe so as i stand here i can't think of anything i don't believe there is but again you can't create ambiguity in a contract by silence the contract doesn't say we're just losing interest and the statute said we're title tell instead of just one if there was anything that would inform our understanding of what the term actual damages in paragraph fourteen not not that i i'll be court then let me let me start off by saying sanofi wants damages interpreted different ways when they're using it so the first thing they do is they say no no in the agreement it didn't include pre judgment interest damages there  i would my view would be that of that circumstance if there were damages you would look to to a before wouldn't you know are in fact what would happen is what's happened in other cases and that is so nobody would have been faced with the choice of amending the complain and adding it to seventy one a one a two seventy one a b or c claim all of which would then have trigger to eighty four they didn't do that they stayed with two seventy one b which has a very limited damage provision in c and i don't know how one can get around the fact that congress says the remedies prescribe by suck air you do is you a mentor complaint this goes back to one of the things mr chesler alluded to when he indicated that agreement in paragraph fourteen indicate that the parties contemplated that the possibility of at risk commercial activity and that there was the would be in the fifty percent that was set out that's what the parties contemplated to make each other whole that's why that provision is written there and the reason for the two eighty four reference is the insurance policy to make sure everyone understood that the only damages you were going to get was the fifty percent goes to seventy one eighty four uses the word damages that's where everyone was gone as well the word actual damages would be most likely analogized compensatory right and increased damages not upon the compensatory so it's not really sort of icing on the cake isn't it a separate cake the statement about increased damages under to seven to eighty four not being allowed it would be anything beyond what was stamped and so things like trouble damages things like interest prejudgment interest or all add ons as the court noted when you read to eighty fleet it's an add on or it's part of the word actual damages because you've been telling me for the last half an hour that it's part of the word actual damage not within capsulated right and that's what i'm saying in other words i'm saying damages is used in the contract included pre judgment interest and not anything else i thought the court was now asking specifically about two eighty four and it i was commenting on your last sentence in the contract where you further agrees it won't see increased damages under section two eighty or so if anyone was going to look at anything beyond that which the parties that agreed to they were doing everything they could to prevent it from being added to trouble damages i think the contract is written under actual damages would include pre judgment interest so it wouldn't it wouldn't comment they were trying to put a belt and suspenders the whole goal here was to limit the amount of liability that app attacks would be like four to fifty percent nothing more not pre judgment interest not enhanced damages nothing more that's how the agreement was written that's what they were looking for and that's what they they thought they did to what extent does your position depend upon the word actual  which you would it be a different case if it just said damages instead of actual damages no i think i think the use of the word actual damages is again going to what we've said before no enhancing of it the actual damages would be everything the parties contemplated that's and nobody could claim at the time pre judgment interest lost profits reasonable royalty always being rolled into a fifty percent actual does have some definite significance here might be different cases the word actual wasn't in there i don't know that would have to be something that we have to discuss and con