thank you your party thank you your honor may it please the court the jury in this case found that the defendants do not infringe the asserted claims of the eight o five patent and that the claims are anticipated and obvious those findings rest on an incorrect claim construction and on reading the key priority reference to disclose claim limitations that it not only does not express we disclose but that are contradicted by what it does disclose with the court's permission i'd like to turn to the client construction issues first the district court construed the hot rolled steel sheet to require a steel sheet that's been reduced to its final thickness by hog rolling and to exclude as a result sheets that are hot rolled and then cold rolled that construction cannot  reconciled with the intrinsic evidence the starting point should be the coin language and the court's construction imports into the claims a limitation namely reduced to its final sickness that is not found anywhere in the claim language of the claim that means that the sheets must be produced by a process that includes hot rolling but it doesn't exclude sheets that also undergo additional processing steps like cold rolling i think that's underscored by the fact that claim one which starts out by referring to a hot roll leadership to she produced either by hot rolling alone or by hot rolling followed by cold rollers moreover the claims also use the term comprising which indicates that hot rolling is necessary but other steps are not precluded i think the specification points very firmly to the same conclusion it repeatedly states that the steel sheets of the invention have been hot rolled and include hot rolled sheets that are then cold rolled which means that the sheets described as hot yet now with the district court said is that very high mechanical resistance or very high is not a term of art it does not have a specific meaning in the art so now if we look at the specification what the specifications says is the purpose of the invention i occasion says in its statement of the purpose of the invention this is a one thirty six column one lines thirty seven down to forty four the purpose of the invention is to produce a hot or cold rolled steel she use the words very right no place in the specification uses the words very high and then when the specification talks about fifteen hundred it says it refers to it as high as four or substantial and it says a ha a high mechanical resistance or substantial mechanic inconsistent with that and then the language seems to support that because it suggests that it can be greater than fifteen hundred but that implies that it's at least fifty oh i don't i don't think it does imply that not when you have a prior statement that says the purpose of the invention and the invention is associated with as a claim says very high mechanical resistance is to produce a sheet with with more than a thousand i think the specification is telling you what very high mechanical resistance is using the claim ask whether they don't teach me something about what miriam write i understand but i think you can't read those passages in isolation from what the specification has already told you the purpose of the invention which is what language you're relying on  the purpose i rely on the passage at column one of it's about lifeline forty forty one forty two yes down in that neighborhood bar is there something in the record that shows industry standards there you know there are no industry standards i mean the dead as i mentioned the district court found a very high mechanical resistance have it's not a defined term there's not a scale somewhere that says rain tie it's up to here and substantial exists and so on and in fact that the extremes again didn't we which we don't think you need and you would have used the same terminology but if it's describing a particular product and it's not i don't i don't know how you import that into the specification politically where it's a district court found and nobody disputes that very high it's not a t art and nobody has suggested that higher substantially is either so i think that with you if you start with that statement of the purpose of the invention and the purpose is to produce a sheet with more than a thousand i don't know how you can read the claim which is after all no the claim construction error doesn't really affect the prima facia case so the the question here is whether or not your client let's assume that i agreed with you that the claim destruction was wrong on the also cold rolled and coated no man would use which is the commercial to go back and look at the six on page eleven a ninety nine which is in the claim construction thing the judge who expressed some remorse having decided to roll and being very commercially successful your rulings are no it's not irrelevant because it would because what the judge held it and i think you really need to look at this footnote recognizing that what she held is that we could not establish literal infringement bikes by sheets that are hot rolled and then cold rolled this case what went to the jury only on an infringement under the doctrine to be quibbling as to look at this the court and the court construction does not necessarily preclude the possibility of defen on this claim structure on top of right then you said we agree there is no literal we have we have not challenged that correct and she is saying you are has a lot more than your head no i don't i don't think that she is i think that this goes well it's i think it's important understand the process here is your pov role then you call the role then you cult director is very clear that you can't operate a cult and then cold rolled because it it messes up the coding it doesn't work anymore so that's why i think this footnote doesn't mean what your honor may be suggesting that it means i'm just saying what you do if you make some hot rolled steel in your code right then you're going to use that's right and they don't do that right but in terms of whether or not the cl over because the won because the claim to that just the hospital chiefs alone was never properly assessed because by that construing it as she did she excluded all of the commercial success evidence that copying evidence evidence of of construction but we were to disagree with you with respect to the very high mechanical resistance and say that the fifteen hundred at least fifteen hundred construction was correct does does that mean there's no infringement that would mean that there is there is no infringement after some of the products of some of the accused products have mechanical resistance below fifteen hundred some have above fifteen hundred was a major and a concession i'm we conceded that they had their products the accused products were hot rolled and then cold rolled they were not top rolled and and coated products along that was the only concession and then after to answer your question your honor some of the products hav the you have to have the probably defined claims and then the objective evidence has to be considered by the jury together with or that any facts either together with the prior art evidence so i think you have to have to present the jury with the whole package because you know i end here this is a perfect example of the hindsight sort of thing you have this forty or fifty year old pattern that nobody ever thought to me i thought i damaged a newbie at some stage here review you said well wait a second i'm not worried about the old there was no one about whether the combine the references i'm sorry whether to combine the reference well i think that would need to be to be retried again in the context of a record that includes that it where the jury can properly consider honor is that you cannot you can't analyze the obvious this including the prior art divorce for a proper consideration of the objective considerations second are considerations so it's off the the the holy shit i'm sorry that's a different secondary considerations object of consideration is the term they prefer relating to this cold rolled steel sheet but that's not enough to resurrect the claim because the jurors evidence was before the jury they got to introduce all their evidence the jury rejected that evidence with regard to the hot rolled steel sheet i did because it was way too weak to overcome the very strong technique i was going to where my problem is seems to me that any commercial product is going to be different from the invention is as described in the client it's going to have other features they'd say that under proper claim construction let's assume that they're right about the hot rolled claim construction f the evidence of secondary considerations concerning that commercial embodiment is being relevant to the obvious question now will why is that wrong but it doesn't here because you're forgetting the fact that nexus which is required here whether it's commensurate independent claim even though the independent claim has additional subject matter because the jury found that in our claim obvious and the independent claim covered that this court held that expressly in the callaway golf case no what they're saying is this commercial product has an additional feature which is called wrong and that movies of the cold rolling is what is responsible for the commercial success of if that's the case cause and name and they made that rb to the jury and the jury found as a matter of fact that there was a sufficient exit for the hot rolled product even if there were a nexus to the cold rolled product that wouldn't make the and in fact the evidence that the hot oil products had failed the evidence a big success that they claim was years after they filed for the patent the overwhelming evidence of hegel obviousness overwhelmed any such argument a jury consider their evidence they consider the evidence and found no nexus that lack of a nexus between the success of their cultural product and the hunt for a product remains the legal question of expanding the sense of the obvious so must the broader twenty you can't have the broader claim being non obvious and then are once the obvious here they now are claims including consideration of their secondary consideration as has been found up so you're telling me that sculptural it had to do with the obviousness of adding a coating before thermal treatment we believe the final or on prior art it's to disclose that expressly but in addition there is a french patent that specifically equally up that code is hot or a product has been tried to a jury and found obvious including all of this evidence that they have and that the jury found that there was no nexus to the hot rolled product remember commercial  product and not the obvious this of a hostile so that brought the hot rod sort of product remains obvious the coming to the to the infringements on the issue do you agree with this trailer that if we on your honor there is evidence that some of the products have a mechanic this is about fifteen hundred i believe although they take deals for below i believe it had some negatives of some of the other products that were about fifteen hundred that's correct the typical component properties for the clear that very many campuses and fifteen hundred by contrast the term hot rolled steel she is an extremely well known several turns it was steel industry this is an old industry it the it may be the case that certain final products in the industry when you say hot rolled she it mean top rolled to a final thickness it clearly cannot mean that in this patent because its patent says the subject of this invention is hot rolled shee that the the entire text of the specification overrides the experience of evidence because it repeatedly says that the the hot rolled sheet of this invention may be further cold rolled which means that top roll sheet is used in this path and has not been hot look at the expense of evidence and we cited this in our brief and one example even in the treatise that they rely on a free seventy two hospitals she hardly cold rolled and cultural she are separate product categories coded sheets which is what we're talking about excluded we put we did put the evidence in but here is what the jury was instructed the jury was instructed first of all as to court pointed out that commercial success and the other objective indicia are only relevant if the claims cover the products that you're talking about the jury was also instructed at a fifty that these claims cover only sheets reduced to their final thickness by hot rolling in other words not our product not their product the jury was further expressly instructed the use  fifteen hundred p our product is told roll to its final six and so they were told this product is not within the scope of the claim so it was there but they were no one to consider it well if they're afraid they would have been in error for them to consider it under there under these instructions i think and also the jury was told that defendant products are pulled roll to their final thickness at that a forty three a fifty one and a fifty seven so yes the evidence was there but under the instructions the jury was given it could not properly consider that evidence and i see that i have run out of time