its products company this shock me please the court with the court's permission i'd like to address three points this morning subject of course to the questions that the court wants me to address the first one that i would like to address is the effect of the very recent tega versus sandow and dow vs no decisions on the indefinite article next that was made in the briefs of the second one is to discuss the argument by double us that essentially the entire market value rule is that the fault rather than being an exception to the way in which damages are calculated and then the third point i'd like to turn to is the question of what the words of the district court in entering judgment were and what the effect of those words were in the case turning to the recent t indefiniteness now that we know from the supreme court in the bias a case that simply the ability to reach a construction of a claim term is not enough to guarantee that that claim term is in fact definite what if i pathetically that the intrinsic evidence of a patent resolves the question or the court comes the conclusion that resolves the question then what role if any does extensive evidence have to play your honor that really wasn't the case here because the phrase so no one hundred medical though you know maybe maybe i disagree with that please answer the hypothetical i think your honor is suggesting a situation where the the intrinsic evidence is so clear to the person of ordinary persons of ordinary skill couldn't disagree as to what the meaning of the phrase rose and in that kind of situation then it wouldn't make any sense to put on additional lebanon's from experts about what they believe th e claims mean i think that it's a situation where the intrinsic evidence isn't conclusive or helpful or illuminating enough to reach an understanding of the claim terms that then there must be a turn to extrinsic evidence so i guess the shorter answer your honor's question is i can imagine some cases where the intrinsic evidence is clear and there's no need to consider any extrinsic evidence of but that wasn't this case in this case the phrase support frame doesn't appear in the original application it was added during a broadening reissue and there is really nothing in the prosecution history of the reissue  application that illuminates support frame other than the statement that it is a broadening reissue and therefore we have to assume support for a means something broader than left frame of that's the only thing that the intrinsic eviden and the second was the testimony of the plaintiff's douglas's expert who said that he thought it was very bright he said it's not that i think it's nebulous but it could mean just about anything it could support just about anything and then he sort of jokingly referred to the fact that you could put it child seat on a frame and then it would be a support frame visit was supporting a child seat in the context of as a snow the money from those two individuals neither of them were within the context of the disclosure and the actual path right there those were more just questions about the phrase support frame in the abstract and what the exercise has to be is given the pattern is an integrated legal document you have to understand these claim terms within the context of the actual disclosure of the written description yes your honor but i mean extrinsic evidence by definition doesn't appear in the prosecution history and in this case it was clear that these individuals were being asked the question because the defendant had asserted its indefiniteness argument and the defendant was pursuing that very clearly in the deposition this well that would be a legal question i'm not even sure that would be appropriate to ask and i guess the way i would phrase it would be well what do you understand this to mean in in the context of your patent if that question and i believe that  the question such a night and not in those words but that was the nature of the question that was put to the inventor and clearly that was the question put to the expert because he was a pining on that very question  and so your honor we have a situation here where the only evidence that was before the court to help it make a decision about definiteness well were a point were statements by independent claim forty eight and said well since depending claim forty eight and the specific embodiment in the patent show headlamps on the support frame and since headlamps you don't want them to go up and down then it must be that support frame can only be something that maintains a fixed relationship to the to the remainder to the vehicle when it's catch up to be fair this record here to more of located in the context it's very comparable to the list french language and other claims like claim one and lift frame is described throughout the specification very particular w actually chan the district court didn't equate support frames and lift frames he said that in his view support frame was broader than the left brain and that's where the fundamental contradiction in the court's two definitions  frame comes because at one point the court says support frame is a broader category than includes with brains and then later on he says well support frames still have to maintain a certain relationship to to the vehicle when it's clear that list frames don't have to do that and the proof that lift frames don't have to do that is the blowout path which shows a lift frame that's lifting up the front of the plow but it actually moves up and down environment of the patent and that's exactly that's a seri i'm sorry what about the language necessary i understand what you're saying about desirable but what about the language necessary i think but that's following on in other words if if you were to of and in fact the patent ts expert recognise that there were many things that might be supported by the support frame that wouldn't necessarily go up and down but headlights don't exhaust the possible things that might be affixed to a support for rain and so the general language like signalling things that are in the specifications right i mean child more has to be done to figure out if we can with support from your honor if i can briefly move on to one of the other points because i see that my time is running down and i do want to reserve a little bit of time to respond  to the cross appeal if necessary and that is that i wanted to say in addition that the words of the district court were clear that the district court found only direct infringement and yet there was only a case of indirect damages indirect infringement damages put on there was a fundamental mismatch between the type of damages that were put on and the specific kind of infringement that the court found now the only way to resolve that is ignore the all limitations rule and yet it's clear that that isn't what this court did the court's opinion begins by saying that the parties make ploughs plow attachments to be attached to the goals and produce the language  itself that refers to the vehicle as being one of the limitations so it's clear that this court understood that in order to or word damages against buyers for say all of for the sale of the attachment it would have to be proof of indirect infringement and yet the district court found only direct infringement because of a lack of any proof in fact a lack of any proof in  face of the district court actually telling the plaintiff that it had not presented any evidence and giving them an opportunity in the republic case to put on some kind of evidence that would support indirect infringement and the plaintiff plaintiff choosing not and non infringement many many years ago right yes and an initially the district court found grant did not infringement due yet right but at that time that was the time for all parties to put all their cards on the table right and we're going to file any and all elements for why we're rationales for why you don't infringe and likewise for the other side the other team to explain all the reasons why yet at page nineteen in the yellow grief i have a section that discusses why there was no waiver and i would refer the court to that in detail but in the short form the answer is that in the papers responding to the we have this court having already announced that you know there weren't any other arguments raised and you therefore of you directly infringe claim forty five but the court didn't say that the court said that the used products infringe that was the actual words of the of the opinion that wasn't saying that we directly infringe were that we indirectly infringe it saying that the accused products infringed and the accused products in light in the context of the entire of the all impatiens rule the accused products it clearly refers to the plows when they're placed on a vehicle that that was the accused product plough placed on the vehicle because that's even what douglas described the choose products to be in recognizing that that their only claim against us here it would go to the actual sale of the product was an indirect infringement claim so since that was clear below it was it wasn't even disputed billowy came up to this court it wasn't really argued to this court but it was an obvious point that we don't sell cars we don't sell trucks the court did not specifically say that there was no there was direct infringement it just talked about whether the products when attached to the trucks recognition been already decided by this court the douglas run mandate already ruled that the whose products meet every limitation of claims forty five buyers arguments on the truck limitation on center and indirect infringement are incorrect their moot and their on time buyers they want to argue now an infringement of the truck limitation at any point in the first appeal or on summary judgment before that appeal and this court acknowledged that in the first douglas decision i quote i was not presented any other arguments against infringement of claim forty five accordingly this court finds that the accused products meet every limitation of claim forty five is properly construed therefore the script directs the district court to enter summary judgment of infringement in favor of douglas and this is seven seventeen f three d at thirteen fourteen there about indirect or direct infringement there is just the decision of this court found that the accused products meet every moment so that was decision not to release these arguments in the first appeal was consistent with and dictated by summary judgment judgment positions in that first trial douglas moved for summary judgment of infringement asserting that to the extent the entire assembly was used by an end user judgment but that doesn't save the day that was findings of fact say is that they don't contribute totally in french because they don't directly infringe and that i can refer the court to t a free pass unless buyers presented no evidence nor arguments and in indirect infringement at the time it was supposed to brief the responses to all of the findings on the seven hundred patent do not say anything about the center argument out here to the seven circuit aligned in c n n c n n corporation explains that big statements in a statement of fact do not preserve arguments and that's also at ten twenty six so the recent damages tryout infringement was a decided issue of the district court february thirteenth twenty fourteen order the infringement arguments are moot in light of this court's ruling on  infringement and that's why the entire trial was dedicated to damages and the fact that mr shank continues to read is that the district court reverted to the issue in the middle of trial and asked douglas if it wanted to expand the trial  s in fact if we look at the joint appendix and the discussion by the court on this issue that's ninety seven fifty one to fifty two and ninety seven fifty eight to sixty two the court really didn't even understand what virus was advocating at that point douglas explained to buyers that the standard it was advocating for in direct infringement and its hope to get this back into the case was actually because buyers knew about the seven hundred patent there's ample evidence that knowledge and also because there are no none of fringing uses for the product so intent may be inferred for contributory infringement if there are because the court was deciding what the claim language support frame me it was asked by buyers to to look at that claim language relative to prior art and in analyzing that language it looked at the specification to understand what the language support frame means and it understood as you well know to judge still that the summary of in the context of looking at the claim language relative to prior art it said well those this prior art include a support for it and and particularly in reference to the  explains that the types of assemblies of rot are certainly different than the type of tile being claimed in the patent and that's that column one lines forty forty four to fifty five o the cases to two recent cases it's douglas's position that those recent cases do not in any way after the nautilus standard i do not understand it is that for indefinite the claims must be read and whether the specification the prosecution history and that if they fail to inform with reasonable certainty the scope in the art above the scope of the invention them their envelop well what to the side as well that needs to is exactly what what it's claimed to be something that provides the same qualities of the left frame but also is capable of supporting additional features such well but i believe your honor that this court has consistently looked through the law of the circuits when they are ascertaining what pre judgement interest is most became an involuntary creditor to buyers that they weren't investing money in buyers they were had money taken away from them as a result of this infringement and because of this involuntary loan to buyers it shouldn't we shouldn't be looking at something like a t bill rate which is an investment type rate we should be looking at the prime rate which is something worded in lieu of an injunction for that technology in between the first trial and the decision on the first appeal which overturned our request for it which which we're not saying that there are most substantial evidence to support the jury verdict then i'm not sure what you're asking us to do i think what we're asking you to do on the i'm going to write to you so this is an issue methodology used by the court involved in the twenty five percent rule we then went back and reproof to the court and the court came back with a rate that was substantially similar to the rate that this court rejected what we're asking this court to do this reconsider the judge's decision to award the post verdict royalties on the five him or about the same thing and seizing on the apparent answer that that might be a good thing to agree to he agreed to it i would however direct the court to the read brief that page forty two where  explained that clean forty five is different from one because it defined support frame in contrast to a live frame so they made the statement in their brief and threw out the a broadening re issue that in fact support frame was broader than left frame that has always been their position and that's what creates the fundamental problem here addressing very quickly the issues on cross appeal i wanted to say first of all that there really market i'm sorry that you must always go to what you could get by what you would have to pay for a loan for the money but but the court can number if it does a refined analysis we made the argument that the refined analysis that was done by the court was adopting our experts analysis and there really is no response to why that isn't the refined analysis either than the argument that i heard from counsel that well somehow there's a difference between a loan and an investment and they should get the investment they should get the benefit of an investment were the benefit of a loan rather than an investment but in fact alone in an investment of the same thing right that's how savings and loans work if i loan you money you agree to pay additional money back to me and that's my investment i invest the money in you you give me the amount back and the court was basically saying that was the position douglas was in at the relevant time period it was cash flush it was investing money by essentially loaning it to its distributors and otherwise investing it as it as it might in the in the money market of the time because that's what its balance sheet search shows the court said it's only fair that that's the best that they get that because that's all they've been hurt to put them in the position that they would have been had there been no infringement simply required that they make back on their money the kind of interest that they would have made if they hadn't been able to invest that money in a risk free investment and that is the treasury rate that's why the treasury bill rate was appropriate it was appropriate to the specific we should look at the number of investing in their competitor rather than giving their alone to their competitor in this particular case yes that's that's true your honor but  the cases and judge starr was referring to of the federal circuit cases that adopt the treasury bill rate seem to see that kind of analysis as appropriate because of the requirement that the this is before it shouldn't be a punitive but we're going you're working pre judgment interest it should simply put you in the position that you would have been had there been no infringement and the position they would have been in had there been no infringement is that they would have had some additional the the fact is that there were no ongoing will to use to be awarded in this case because that all of the plows that were the subject of that award were actually manufactured if were the jury verdict and they were s before the entry of final judgment in the case and so they don't fit into that category of devices that would be made after judgment and in lieu of a creek in lieu of an injunction and an ongoing worldviews pa these these seals were of the same variety as the c olds that the jury awarded an amount for and so it's appropriate frankly the jury's eighty five dollar amount be applied to  those to those cops now judge connelly found two hundred dollars we didn't appeal and argue that it should have been only eighty five dollars frankly merely as an economic matter but two words a four hundred dollar rate instead of the two hundred dollar handsome that he and that enhancement statute would have permitted so judge conley was correct and you shouldn't be disturbed in his ongoing royalty analysis that was really just an award of money for plows that