there was no competition between roche and aluminum and their record is overwhelming that there is in fact direct competition every sale made by roche is harmony tast is well i mean we brought the case i mean st of all they launched one product and then they changed the product and we when we was on the nd product but the fact is that the case took a long time because we had appeals and it was stayed over our objection so we've including lengthy i p r proceedings that we prevailed on so basically we faced an i d r we argued we made presentations of why that was irreparable harm and the  district court nevertheless entered the stay over objection that was most of the time so punishing us for winning an i p o are winning out waylaid i mean in that sense it's all the more it's all it's all the more important widely distributed the technology roche has its own test that competes we put in the idel declaration that documents specific examples of where someone's deciding whether to buy the roche cast or to buy the fast which is a kit where they would sell just like we do for people to bring in houses that ask themselves if you're a large institution you buy the sequencing or the other technology that's a platform you buy the ip and i  court also decided that the seven hundred and four that's been infringed by their homebrew solution is is part of our licensing program but it's not we license and i dollars relates to platform so it's platform versus platform competition it's not that complicated to understand it's just a clear error that she made the court made in addition one of the arguments they made on the farms is that court said that it would be expensive for them now to move away from a luminous proc platform well that makes no sense they're not using the luminous platform that's why we're here taking your time this morning whole point if roche would have to buy the alumina solution in order to operate if they stop infringing that's irreparable harm of the most classic form i really think i could i can but the fact is that it's been demonstrated how the prices come to come down this whole and i p t technology is dramatically less expensive amniocentesis so and there's no showing that that even there that's the public interest the public interest argument that she made  we don't continue to sell the golden gate product the golden gate product is what the founders of the original infringer developed at our company we sold a golden gate product they bought the golden gate product when they were developing infringing device they bought our product and then they substituted out for a homebrew that does the same thing and that infringes and we stopped selling the product when they dropped it afterwards when continue to offer the product commercially to obtain an injunction you don't sign and you know already for that proposition so i'd like to add that i just think it's common sense that if someone knocks off what you're doing and then you stop selling your product that shouldn't be there's the sequencing solution that we sell that we sell to eighty different companies and then what they are doing is they're instead using an ass a which can perform the same identification of nucleic acids and they're knocking off our product which we've stopped selling and so every sale that they make of their cast which is using the infringing platform of this assaye is one last sale of alumina power a task that takes place and supplied a platform that allows people to operate and in the case of a c f s it is straightforward they're selling the kit platform all the way to past we do the same thing so people can out so people can take it in house they can in house process direct good morning in may please the court mark fleming together with thomas saunders on behalf of the cross appellants we think the injunction request is meritless because there's no infringement and there are three independent reasons for that and i'll get to that when discussing the process but there are other reasons to competition issue and illuminant announced and this is not disputed that it was going to exit the retail market so as not to be in direct competition with aereo said the c e o mr flatly said we're getting out of the business of selling test directly from areas  market is a retail market we say we provide a service for doctors offices who collect patients samples they don't have the infrastructure to do the tests themselves they send us the samples in san jose we test them we send the results back what  intellectual property to these big labs that do the testing those are areas as competitors not illumine this is active video it's exactly the same situation active video license cablevision cablevision sold cable services for rising to what cable visions customers that was not irreparable harm to active video because all activity it was losing was licensing revenue from cablevision the same thing with respect to the rig agents and juices that mr linus was mentioning those are at the if proven their product sales that their view if they're lost to sales of harmony version two because again if for some reason harmony version two were to be enjoined it's not as though a doctor's going to say i'm going to open my own lab and provide my own testing in house they're just going to go to one of the other companies that is providing how on earth does that support your position i think the point here no i don't think this is disputed judge well it is that the the rest of the market the accusation is that we are using the if there is no infringement and there are three independents of independently sufficient reasons why there is no infringement the st comes from claim elements and f and even requires taking the modified probes which is a clean term amplify and then using r chain reaction and forming different amp and cons and the district court construe that to mean application products of each of the different modified probes and that's important because the modified probes are the big probes the long probes that include the full sample as well as the read the universal priming site which is necessary in order to amplify them and then step f says you immobilised said different amplifies that there's no factual dispute about how our product operates how her harmony version to operates what gets immobilized is not an amplification of any of the modified probes but a different thing called a readout to set which doesn't have any of the target sequence in it it doesn't have a universal priming site it's a completely different technology which is why the district court perform the same function as a set different afrikaans doing the claims but there is nothing about there being done in the same way or about it being done with the same result so this is a case of an utter lack of proof the other side has nothing beyond result they are different because the process works with the harmony process when used the read up to sets it does not work when you use the full big ample cons because if you were to put them together on this dance or a it would create something called staring hindrance w page fifty four the red grave you know in a footnote you reference doctors all still make oh yes making no general representation about not sure the record says anything about that well what i'm driving at is isn't it proper to construe it against i mean that they're responsible for its lying to to the extent there were an ambiguity and if then i suppose it might be but i don't think this language is in any way ambiguous it says a sign or is believe themselves to be the original inventors of the invention disclosed and claimed in said application and there is i don't think any reasonable dispute that what was disclosed and claimed in the application at the executed their assignment and that's why we think this is a situation where a sign or a scalpel is not properly applied because that what they're trying to do is take a representation about a narrow invention that required perfect complementarity and extend it to a much broader claim that some seams substantial complementarity would not limited to protect perfect complementarity which implicates different invalidity contentions so that's why they rely on that and we don't think there's any ambiguity that would require construing anything against them if i could return amplifiers are not immobilized at the time of detection they have been washed away so we're at the very least entitle to jamal on this but it but if we don't get jame all we're entitled to a new trial where we have a properly instructed jury that is told that the applicants have to be immobilized at a time detection that's a request we made to the district court acknowledged it but did not rule on it so at the very least we need a new trial on that one if i might just take a moment your honor to deal with the final issue of non infringement again each of these is sufficient in and of itself to direct a judgment as a matter of law of non infringement the st two elements of the claim the st two limitations have to be done in order you st have to have sample strands attached to a substrate and then they are contacted by the probes and they have to be single stranded when they 're attached and then that all three probes have to connect with them and hybridize that is the opposite of what happens in our product in our product the samples are swimming around in the solution they have over a one million probes per cent will strand sit there in solution they contact each other and then  only then are they attached to the substrate it is the exact opposite so luminous infringement theory depended on speculation they say there are some samples strands that remain unattached in the solution they then get down down to the array and then all of a sudden and they've never explain how or why all three probes attached to him at once in a very short period that is left and there is absolutely no evidence and no one has ever seen this happen there's no reason to think that it would happen there's certainly no reason to think that a strand that remained unattached for two hours during the hybridization period is specifically designed to have the probes contact them that somehow all of a sudden once they're way down all three of them would attach in a short period before the probes are washed away and notably our expert said without contradiction  be far less likely to bind once they were weighed down with the bees and attached the substrate that's on page two thousand three hundred and ninety four dollars so for any of one of those three reasons we respectfully submit the judgment of liability should be reversed and if that happens then there is no need to consider the injunction because the specific competitive situations i mentioned the military people are considering going to bring it in house and get the alumina solution which is a huge business opportunity for alumina sell sequencers and use or we're just going to test send the pass please to just look back at the record it's not that hard to figure out that there's direct competition here they admitted i give you a direct corporate strategy document and your specific example to competition was with the licensees it's with the licensees but  we're missing is sequencer sales juice sales relationships and what idel explains is if people buy our our solution for to do their own and i pass they can do cancer they can do other things getting in the door at these clinical said at walter reed to sell them your box of your sequencing system and then on top of that let them do the different applications and huge opportunities this is big business and we're being different you know john hopkins  products as retail sales when people buy the alumina solution there were running that cast themselves for themselves where they're wanting to test to sell in competition with harmony so this her harmony and then there's the and lumen a powered pass and there's just head to head competition but we're not just losing a royalty we're losing the relationships of selling the sequencers and selling the juice and that's why we were able to submit an extensive declaration giving comparative situations 's overwhelming evidence but let me let me address the infringement unless there's anything else on the job so i just ask you please look at the record this is direct competition we're being denied injunctions for no reason that the analysis is just flawed  undisputed in that sense but what's not undisputed is that that's a step to question as to whether that satisfied the claim construction the court's claim construction was replicated in whole or part to yield amplification products of each of the different modified probes that's undisputed what they're essentially asking now is for a new claim construction that says it has to be the whole applicant and not a cleve dam one and the jury was able to look at the technical evidence in this case with expert testimony and for it to be considered a clean damply one and that's what they're seeking and then there's doctrine of equivalence they have patent applications on these clean damply cons they call them surrogates that that and we have testimony about if you look at the cooper testimony that walks through the substantiality the nd thing that was argued was immobilisation it was very quick and i don't know if there's questions about that but basically if you look at the claim term the judge went through this multiple times the district court mean you have to the fact that it is immobilized you have to recognize because that's how the test works but if you leave it an indicator that ok it was immobilised it's enough that you could tell that it was immobilised that's all that the claim requirement say and then on the rd one about this order of staff why was that a superficial statement of the record we put in extensive scientific testimony from dr koop work that went through it reliable enough to be and they're saying that it somehow and then they used this common term no one seen it well come on i mean of course no one seen it no one's like you know in in one of these crazy scientific movies where they they've never brought any claim to say they're not inventors and we've demonstrated they are inventors and they admitted they're trying to become not inventors or denying their inventors ship because they want to avoid the asner stoppel doctrine they went and made homebrew to our patent and are competing with our platform directly and we're entitled to an injunction the other thing i would just say the last point i want to make is don't wish track to the supplemental damages issue it's kind of quirky the way it came up and additional court said she denied it  seems to really want to grant it let us do it henri mad there's a lot of money because it's been a few years and this is big sales and so we that's just make sure that we don't lose track of the supplemental  infringement if i may st of all mr ryan is very careful to say he thinks we are possessed because that's our amplification products but of course the claim and the claim construction are not satisfied simply by amplification products it needs to chain reaction that cannot happen to the reader to sense they do not have a universal prime insight they are not modified probes therefore their amplification cannot make them ample cons as he lumina chose to claim them in its own claims if they wanted to do something different they could have tried to do it make or seen if they could have gotten those claims issued but they didn't as a result were not challenging the claim construction were perfectly content with the claimed structure the point is they don't satisfy it and they what the way they're trying to convince this court that they do our that are harming version t does is by reading out the requirement of amplification products of each of the different modified prose that is a critical component of the claimed instruction and by trying to get rid of it they are trying to broaden the claim beyond what they actually recited  regarding the st two limitations and the the necessity of having the strands attach to the claims hatch before they are contacted by the procedures the opposite of what we do there's some kind of suggestion that we are required to appeal the daubert ruling in order to appeal a jame all denial i know of no law that says that the supreme court in brook rupe this court in and last has made very clear that if you are challenging the admissibility of expert testimony you appeal the daubert if you are challenging the sufficiency of the testimony to support a jury verdict you appeal substantial evidence in fact a denial of the daubert motion said the judge said leave i think this goes to weight rather than a disability we are appealing the weight and here the expert testimony as presented to the jury is not enough to allow a reasonable jury to find infringement he never explained why once you have the strands band down down to the array all close to each other all of a sudden even though it took two hours and not and none no