limitations part me too narrowly by reading and requirements that are not there that restricted kellems invalidity defenses by narrowing the scope of the prior art that was relevant the court  with that information before the jury and if so how would the minute in the directed yeah it was before the jury and i will confess that i don't believe we objected to it probably should have but didn't which is why we didn't raise acknowledged that the term is defined in the specifications and the challenge proposed construction what was first bait i think is the word the court used taken from the specification that allowed only a game and its expert to spend out an infringement theory that really turned the claims upside down and turned what should have been clear evidence of not infringement into an entirely new theory the claim constructions at a minimum require a new trial and we actually believe omega failed to prove infringement even major that's the l m you that's our product the and the way vehicle device just fine in the specifications is it is the device that is to be controlled or have the status there of ret and if the controller is what is doing the controlling so if he can get to you can't be both the controller and the thing the controller is controlling the other places it enters into is what i think three of the particular use of device covers device codes was construed by the district court to mean signals from a vehicle device and and what are made goods infringement theory infringement expert c refer to what signals from the l m you which is the controller as being these device cause when they can't be given that construction unless you improperly say the elegy was a vehicle device which had that term been construed as it was  fined in the past could not be the case so it seems to me that this were vehicle device comes up and there are three ways vehicle device comes up in different points and some claims it's used with vehicle to place code yet in other claims its use without vehicle device go correct correct and it seems to me that you have pretty good argument that were and with respect to the vehicle device code claims that their primary reliance was on the signal code limitation as well the duct that doesn't affect claims and i think i'm i think this is where you're going it doesn't the fact that there are a couple of claims in the seven states and the claims in the seven to seven that don't require the use of device codes so even though vehicle device appears in those patents it then i don't think you have the same infringement related problem as to those so your your argument is only with respect to the claims that have vehicle device  isn't doesn't seem to be in the record well it was in the market and it was in the market and where the judge laid out caroline proposes its construction it comes directly from the specifications and therefore i don't need it doesn't seem that the parties include the discussion with the district court about vehicle device yeah apparently we must not have cited that passage in the briefs bite but it seemed it was is it in the record an indication that one of the many claims of the us and friend that the boil to rate the damages would hold assuming that they hold up for other reasons but that the damage is all or nothing kind of thing that was one expert only one expert he testified to that seems to be clear right well he testified that there was a single world they would apply across the board we believe that if any of the underlying infringement findings or stir damages need to be reconsidered because it was basically a general verdict as to while i think it's important to focus on it's what he said was the omegas position in the go shooting licenses is to ask for a single royalty across the board he didn't say as a matter of economic analysis this is where i came out this would be the is refuted by their own license agreements which are in the record which provide different royalty rates for different pay i just don't get it and there's a jury charge transcript sixteen for nine seven of the j and didn't the court themselves actually provide different world rates for different products and different patterns so the jury didn't have to agree with that presupposition is what you're saying yes correct that we don't know we can't be sure that the jury reached the result for comparable wanting to do a doppler shift i mean unit so you didn't the licenses were n and then why is it not i mean even if i did might find your arguments to the lack of of not comparability is really compelling because it could be you're dealing with there if with their two main licenses one of them covered forty seven patents the other one covered i think eighty six patents disparate technologies with different royalty rates for things like remote start capability which we don't have alarm systems which we don't have and so we've made all those arguments to the jury we made those arguments but i'm on this record we think the evidence is clearly insufficient because these are not comparable it is that  e did they have something more than those licenses they had a basket of other of other things too short they preferred generally to some other licenses but they have the same problems there are dozens of patents all of them are litigation settlements and they and they also show the different world the rates apply to different kinds of patents and different products so that they were not a focus at trial but all the same arguments apply to them so what you're saying is the only damages disturbed but he even apart from that there are serious problems here is that the facts are they can have did exactly what a responsible company should do when it's considering introducing a new product that identified the relevant field of art did its own internal through those ok in order of what you think is the worst part ok so we've got oral opinions before we introduce the products now this was the trial was before halo but obviously in the wake of halo what we knew at that at the time of working on the products is crucial we got oral opinions beforehand chen was allowed to describe you know we hired college so we looked at all these opinions can engineer he has an edge and he was a senior engineer at cal and we got all these these you know we looked at all these pens he gave us opinions about the ultimate conclusion he needs but not the guts of the basis for that conclusion was that the same deal he reached with chad you know he was wasn't letting chen even talk about what the conclusion which i couldn't even talk about what the conclusion was and with respect to bailey i think it's it's kind of debatable exactly what bailey was allowed to say he was he did say an opinion as to invalidity of an opinion as i know but that but the judge had instructed that he was not to testify about the substance of his opinions that the jury heard that so you know it's questionable what the jury may have even understood bailey was telling and that was about the written opinions not the oral opinions and it's clear that that was excluded because first of all the judge appendix page seventeen advice of counsel was not allowed into evidence at appendix page forty six no fourteen he says the court is unaware of the substance of the moral opinions allegedly provided prior to the introduction of the products well that confirms that those bottom lines were not presented there did the jury heard the jury didn't hear anything the judge didn't hear so often judge was unaware of it for sure the jury was unaware of it ok so what's a judge to do in these circumstances because it does seem to me that if he allows extensive opinions about the inability to be in a deuced in the guise of an advice that they received about whether they could go forward with their product launch or whatever it was that there's a risk of prejudice so does surely the district court has some control over the amount of testimony that's given about these oral or written opinions that occur before the event sure absolutely are are but a complete exclusion is not i don't understand i'm looking at some of the testimony that's excerpted from this i thought that dr bailey did test mr bailey did testify when he was talking about the conclusion reached by the letter but the written opinion that that was reflected what his prior oral opinions were so that's testimony got it right well if he was allowed to say that much but excluded on hearsay grounds but they were there were a lot of shit we should say were allowed to show him the written opinions and he was able to say yes this is an opinion reflect for this is a document reflecting my opinion which are also had previously given  analysis from from chen or from bailey so given this context and just like your question certainly the district court can exercise some control and you don't want them to trial devolving into just reading pages and pages of attorney opinions but to saying they knew about the parents they looked at them but you didn't hear any analysis and they forge ahead anyway and then had at seven twenty i think of seven twenty two again so then they pretend this is a line fifteen so then they brought in mr bailey their attorney because mr bailey came in and said yeah i've been working with mr chan i've been working on this big stack little spec and i agree i agree with my partner referring to trial counsel who was from the same firm that all these things must be either invalid or in french so they dismissed this precisely because the judge didn't allow any explanation can i ask you with it was there a distinction between what was the route and i apologize if you've already said this the difference between what he allowed to interpret chen and what he had for bailey chen was channel law out to do was at least as much as a lead did which is to say what the results of the opinion that no chen was cut off completely on that subject both as to bally's opinions and as for his own conclusions based on his review  disagree really how could that be appropriate reason for what was what the cork and then it goes down to the details of alsace i think what the court said was he agreed it could be offered for the state of mind sixteen  where is this question is in sixteen israel or sixty three hundred three hundred one well  and this is what this is chance testimony yes me what he says did you have an understanding whether counsel believed right and other words what did he understand of counsel's belief was correct and i believe that's an appropriate fiercely objecting  to the question was objected to on the basis of hearsay and that we were well if you've been objected to on lack of foundation then they could have laid the foundation for what they would have the opportunity to do that because you never made such an objection mind would be relevant to the willful this board but that objection wasn't made why the stand then but i have can you come here and say well maybe the judge was wrong to exclude hearsay but there was another basis for excluding at that judge didn't rely on it and that you didn't argue well again i don't think it was i don't think the question was appropriate as you say what did what did mr bailey say  that they had not raised it in that their initial brief they did not contend at the time that chen was offered that he had been identified as a rule twenty six expert there was no for that purpose he didn't put it danger time frame where where does it say well for what purpose he was offered there was no explanation on behalf of the defendant why he was offered there was an objection made that wasn't offered as an expert i believe it was i think that was what if they did say he was being offered as an expert he wasn't being offered as an expert when the objection as to the expert was raised that he was being offered as an expert they didn't come back and say no he's not being offered as an expert where do we find that if you look at page fifty seven of the blue plate because they say the court never explained where did the court explain i'm not asking you for giving you an opportunity i'm not sure i have a don't agree this hundred dollars for a patent but i have no record citation but the point that i would make is that if mr bailey had conducted that analysis that money was ordered suck it takes very little additional time we'll give you a couple minutes right away i have one question just based on what the discussion is here on mr chen so the argument seems to be that since he wasn't identified as the decision maker for the  you didn't hear a record cite here if you look in their brief where they make that argument you're not going to find a record cite because it's not true there was not nothing with the record cite that he where he describes what he does and suggests that he has decision making authority with respect to what the  for the court to page twenty eight of the gray brief and i'm not going to read all the record cites but he was the senior engineer testified that he was directly from the decision making process he testified that he's the one the company dispatched to look at this  to find out what the company thought about it so this notion that somehow this evidence could be excluded because he was you know he's just some form of this process of just completely made up he was in trouble to the process and to suggest that a you know a corporation and not engineers are going to be making the decision completely independent of the advice the engineers are giving them and it doesn't it's completely illogical besides being unsupported by the record a couple of other points george wallace you asked about i think it was reference at page fifty four of the red brief up among other problems all of that stuff refers to actions in two thousand and nine involving different patents and different products that had to do with this unrelated sky patrol matter what's with what was a challenge customers i shouldn't say completely unrelated but different products the l a news that issue here weren't even introduced until two thousand and eleven bailey didn't even look at these patents and told twenty ten and one of them didn't even issue until after that so not only are there other problems with that but it's completely irrelevant to this case the there was a question about whether caliber explained the purpose for which chair and was being offered i prefer the court to appendix pages sixteen to eleven to two thirteen work up trial counsel explained we're not presenting him as an expert it's not it's offered to show state of mind it's not offered to show that the patents are in fact invalid or are not infringed we didn't identify him as an expert would i go on to we did identify him as a witness and so this notion that we didn't do it we didn't give the judge a clue of what what we were doing that's just again made up if the court has no other question