abuse one's discretion is to misapply the law and that's what the judge did he had a misunderstanding about how the law lies to the enhanced damages and and here's what happened when this case was based on evidence showing that the defendants and specifically the defendant courts knew about spector what expands for years before suit was filed and they knew about the risk associated with that  but they took no steps to investigate that risk and no steps to mitigate that risk until well after being sued now the district court didn't quarrel with that in fact the district court in its  made his own expressed finding that the defendants did not carefully investigate the patent until well after they were sued but here's where the legal are heard he expressively discounted back back because he believed that after this court's decision such failure to investigate a known risk was no longer relevant to willfulness and therefore was no longer relevant to  now that's what we were there for two reasons one is since it is subsequent to that to the district court's ruling to this court made clear that the change in law in the seagate case did not change the one about the balancing of the well without necessarily deciding you know which are more important some are dispositive or not if there is one issue that is most important it's that investigation relative size of the parties should definitely come into play here we've got a very large defendant in a very small plaintiff here you know at the end of the day we're not willing with the fact that the judge gets t run down the figures i deliver copy you know the judge said there was no evidence of deliberate copying he wasn't willing to find it himself but he i think of affectively view that as a neutral factor because it wasn't strong evidence one way or the other he didn't recognise there on balance it's more fair to say that the judge viewed them as most neutral but then again we have the discounting of the effect of the willfulness put in for willful infringement finding itself and i why i guess what our position is is that it's harmless error the judge is driving factor and his analysis was the closeness of the cases personal view that if he were the decision maker would be obvious and you know plainly based upon that the district court thought it was entirely fair game think that if there were personal for consideration he would take a look actually at a two one zero two which is a letter from mr clegg to the other side explaining johnson and johnson's views on this case prior to litigation element of reckless disregard whatever adversely held patents there might be and you proceeding with that we should think there was no reckless disregard because i think when you look at the which is strange case response upon being given notice plainly sets forth how change i investigated and precede it and change a plainly identified not prior art but real world devices there was aware of such as the l p l machine which was proved to be prior art at trial it plainly again a fight that there was significant art not presented to the patent office which is the swiss art which we proved to trial and i think that there just isn't going to be a this is something of a side show but i respectfully think the jury heard it and willfulness should have been set aside the district judge concluded wrongly in our view that we had waved a moral on that by not in hot verb the patent office issued the patent not being aware of the swiss prior art in which can a lever design be used for well over a century this was touted in the patent as the great advantage of the invention the p t o issued the patent not being aware of the l p l stent cutting machine which had already taken the ideas of swiss art and moved into laser cutting and the so that you can cut good parts is just a truism this is no more complicated than if you wanted to cut a piece of wood with a saw you would take a c clamp and catch piece of wood somewhere solid so you could get a relationship with each other the patent does not require minimizing vibrations the patent does not require delicate cuts the patent does not require even cutting stance now to prove their infringement case against us they did not have to prove that our machine minimalized by vibrations they didn't have to prove them a delicate cuts they didn't have to prove that could  workpiece fixture originally carried on the cutting tool and it fixed spatial arrangement yes right so it's more than simply saying some i want to separate the undisputed proof from the truck the side issues that are out there the undisputed proof it was that you need to fix it to something to make a good cut and that every single person in the article testified considered the laser and appropriate thing to fix a fixture to let me just review that very quickly because this is the key to our case  every one of them agreed that the laser could support the workpiece fixture was known to those of skill in the art that was true jeff miller from no norman noble at a one thousand talks about putting  attack attach fixtures to the lasers build up in is it a and ninety two who designed the modified come tell machine also talks about using rubber tape rubber band magnets to attach fixtures to la ruler of the last sock of the laser manufacturer who tried to interest companies in using lasers to make cutting tools testified that a ten a sixty two the experimenter very quickly with attaching fixtures to lasers and and that a ten sixty three disclose that to his customers richard press of l p l who may become tell machine at a of eleven eight testify that he made such a design in ninety four or ninety five john dunbar or i mess who designed the l p l machine testified at eight ten twelve the laser cutting tool was strong enough to support the push towards maccarone of the change a engineer after looking at a design with a where piece on the laser said as well as the connection is rigid it doesn't matter where you make it it's a matter of convenience that a nine for six enough place is good enough you have a limited number of routine choices you get attach it to the table here you can attach it to the frame there you can attach it to the ways we're there that's our universe we have the universe of three choices that are based upon requirements that are not in the patent these ideas about minimising vibrations their expert conceded that it was obvious except for inventors goole of minimizing the inventors purpose is irrelevant what matters is the objective reach of the claim the objective breach of this claim does not include minimizing vibrations you can make embodiments  unrelated to the problem that we're dealing with today the swiss art was like looking at horse and buggies and trying to learn something about making it as lean engines after the p s lean engine had been invented we had already moved behind beyond these giant bulky machines into the l p l laser cutting machine there was no evidence whatsoever that the l p l machine and not posed any uncertainty whatsoever about using what the laser our view on the inventors purpose not reflected in the claim of minimizing vibration the defendant's argument on obviousness is fundamentally based on hindsight they start with a claim language that claims as one of the features churning the workpiece fixture on the laser head in a fix patient relationship of the facial r and they then take that that part of that solution to fix spatial arrangement and they create a problem off they said it was a there's a problem you need to figure out how to how to have fixed base will arrangement and so let's look around and see what the options but it trial there was no evidence that the earth considered it to be a problem in terms of how you created a fake spatial relationship the evidence was that the prior art was completely satisfied playing with which is he's to that he's attaching it to the laser with a laser is a big piece of equipment and there's a difference between saying i'm going to attach it to the laser and saying i'm attached to the laser head so when you stop talk about reasonable number of options there are a lot of different places you could go and in fact there was evidence at trial for example that one of the things that lp on r r m s try when they decided they didn't want it down the table they went to what's called the  axis which again is part of the laser frank so it isn't one of just a number of known options there are a small number known options but again it's the most fundamental point is that nobody was looking for another place to put it there was no recognition that where they had started or there was anything wrong with that and then ties in to some extent the teaching away  that you tried to dampen it tried to get rid of it found the heaviest thing in the room and it cranked everything down to that happy face and again the undisputed evidence even if it were not disputed you'd have to give it to us because the jury ruled that way but the undisputed evidence a family correct correct so all the prior art and also in the in the loser art simply had the workpiece fixture on the table but in any and so we have this difference now i want to talk about the vibration issue and i have difficulty to some extent understanding mr diskin its argument that we should ignore vibration but i'm going to try to address what i know what i think it is first of all there's a there's a there's a legal problem and a factual problem with it the legal problem is that is enough to render an invention obvious well the same is true for teaching away if there is any reason in the art why you wouldn't combine two teachings together that ought to render the invention obvious doesn't matter whether the inventor recognised it or not if there was a reason why those skilled in the art weren't doing it that's relevant evidence relevant non obviousness now there's also the factual response to that which is the claim of it but that's certainly one of the things that they accused this court of doing was only looking to the one reason and they said no you've got to look to any reason but the same is true of teaching a way you need to look at any reason there is not to do something is relevant to the issue of non obviousness but is it as a factual matter if you read this patent the claim limitation put the claim is required to claim it's function it's a good thing and what it claims as an element of the structure it is a work piece fixture carried on the laser cutting tool in a fix p h o r arrangement and if you go to the specification and you find where talks about that it identifies the specific advantage of that structure it is to keep those two elements lined up and so that there's no problem if there is for example bumping enjoy right now they say well pumping in john that's not that's not by gracious will s gracious and of course there was testimony from mr madsen and others that that was a reference to vibration and as i believe he pointed out judge clevenger in a few of the jury's verdict we have to accept those fact findings as true the jury was instructed on obvious to try they were instructed on the ground factors and this is one of those cases where all of the underlying factual issues were heavily disputed at trial so this is this is a case where i guess the last point i'll make is if you go to pages thirty five forty seven of our response brief we have laid out in bullet point form the facts that need to be accepted as true under the correct view of the evidence based on the jury's work the defendants have not directly attacked that bullet point list at all instead they just keep insisting on their version of facts so that you're on is it if you  pages forty five of forty seven are brief and take that list of facts as truth you will agreed with the jury and with the district court judge that the defendants did not prove the in any of this  too is the laser cutting tool to is the entirety of this massive piece of equipment the it's not just the nozzle where they've shown the piece attached is the entire piece of equipment a laser cutting tool is illustrated generally as to the claim is about attaching the workpiece fixture to the laser cutting tool you could attach it anywhere in a fixed spatial relationship that's one of the reasons that this patent is not about minimizing vibrations but just about getting a fixed spatial relationship and indeed if you wrote a six one eight one but getting a fixed stable relationship between parts now what that the prior art teach what they did those of skill in the art no i direct your attention to a five three nine four which is a design drawing ninety ninety four two years before the priority date and this design drawing unequivocally demonstrates the pushing rigidly connected by the work manufactured or not but the drawing is in evidence and clearly was a drawing when you talk about motivation we've heard a lot about what people thinking about swiss heavy cutting machines would or wouldn't do here is real