substantial at the outset with respect to instances of direct infringement which are required to sustain the verdict in this case there's a very basic failure of proof at the outset which is that neither of the witnesses who claimed to have used the e b u in infringing similarly could not testify as to when he used the even you the most that you see in the a tell his advocacy on page twenty four of the read brief and on page eleven of the reply in support across the field is that dr cronus performed angioplasties after two thousand that of course does not permit an inference that you use one of the accused products in any of those operations that by itself suffices to reverse because of the failure of proof of specific instances of direct infringement and of course there's more they were also not able to testify that they practiced the specific claim requirement of contacting the aortic wall for one point five centimeters or more opposite the ask you dr cronus admits on page seven thousand and seven that he couldn't recall seeing the length of the e b u catheter on the opposite wall in any of this procedures and dr voter likewise admitted he couldn't remember any context assumed that contact happened but that at most is consistent with contact at an apex which as the evening news designer mr horrigan testified was the purpose and intention of the d evidence to support the jury's verdict certainly judge newman for the first point is there is no evidence whatsoever of the use after the patent itself issue that was the first point i made and the second was no evidence of a specific instance of direct in which one can infer from illustrations in a manufacturer's document that the specific instance of direct infringement happened is at least in the first place when we're talking about documents that were actually given to the third party that was in a position to perform the claim here this case i would submit is much like akko where the patentee tried to rely on a manufacturer's hang card which instructed to be infringing method but this court held that that was not enough because there was no evidence that the hanged card was ever actually given to the end users who might have performed the clean method likewise here none of the documents the doctor voter relies on were proven to have been given to any doctor who then went to perform an angioplasty using and edu it in the manner of is one that says on it that it's not to be shared outside medtronic and there is no evidence that anybody actually saw that so for purposes of inferring a specific instance of direct infringement i think that's just like akhil where there was a document that supposedly instructed the not opposite the osteo so the most we can say injury now is a leak is that may tronic printed some materials none of which was proven to have been shown to a doctor certainly not as to want to scale so they do not give a fair depiction of what happens d curve and seems to me that that those pictures clearly illustrate the cats that are leaning against say or the wall opposite of the off field well it's one first of all during i point out on the side of this personnel only do not copy or distribute so once again there is no evidence whatsoever that this ever left the walls of the tronic and could be used to infer that there was an actual in use of the product in the infringing way also when one looks at it the contact is higher up on the wall than where the actual ornary austen it's now whether or not it was higher or lower than the x v as depicted in this particular image does not show that medtronic was inducing anybody to use the e b u in a way that is specifically claimed in the very narrow claim of the patent notably dr voda conceded on the stand that there are many factors that affect where contact where and for how actually cover the e b u catheter that the contact with the aortic wall is an apex number fifteen as depicted in the brain act so most assertively know drudgery and it was not designed to have more than one point five centimeters of contact that is why dr vote was not able to find a single doctor who would come in and say i saw some of these materials i chose not the non infringing depictions which there conceivably are in the materials that dr vote relies on but instead chose and infringing route even though nobody at medtronic ever told me to do that and then i went and performed the method in an infringing way there is no testimony like that whatsoever the only thing they have is dr cronus is testimony as to feel in which he did a demonstration in explanted heart that had been taken from a dead body it was placed in a lukewarm water bath and he put a catheter into it and said this feels like a live angioplasty but of course he could not say that he could measure one point five centimeters of contact merely by feel he certainly did not say that an infringing contact would feel any differently from a non infringing contact and that makes sense because doctors do not care about links or location of contact on the aortic wall they are focused on the distorted and getting it into the austrian getting the surgical equipment through to unbolt the artery that is the point of the operation the only reason to focus on contact with the contra lateral wall is if you're involved with a patent case where those limitations happen to matter and there  within the heart itself that it pushes out the aorta excuse that pushes out the catheter once it's inserted into the osteo so the whole point of these gathers and there's a bunch of different shapes and everything it's to provide some sort of support against that pressure yes that's absolutely right surgery no we don't deny that that the there certainly is support but the point is not all support not all extra backup is infringing it has to be specifically support by one point five centimeters or more opposite the austrian doctor voted minutes on page sixty eight sixty four that he used the prior art amp last catheter quote for extra backup support in difficult case the m plats provides extra backup but he also conce on sixty eight fifty nine and sixty eight sixty that the m plats technique does not infringe it's possible to get support it is possible to get extra backup without infringing dr vote a specific patent he needed to include the one point five centimeter limitation in order to get over the prior art precisely because this is a crowded field and there are a lot of patents out there what about the experimentally of the of the heartache of that there are there are i mean he cut he cut away and that he could compare and infringing use to or not infringing use and tell them apart by feel but then what he did was remove the catheter he took the heart out of the water valve put it on a table dried it off cut it open as your honor says which makes it collapse like a wet noodle  well he was cross examined on that basis but that that doesn't is that same experiment once the district judge let the evidence in we did the best we could with it yes your honor that was a matter of trial strategy we couldn't say nothing about it but that does not mean that we used the time before present any evidence other than that do we present evidence that it that shows a depiction of an apex which dr voted sixty eight ninety three conceded does not infringe we provided that evidence but most importantly judge right now it's not the defendant's burden to show non infringement in this type of situation where you have no specific no witness standing up and saying i use this in a way that performs the infringing method and all that we have is an effort by an expert to tell by feel in a circumstance that no one could say is comparable to alive and you plaster when you have warm blood pumping shrew expanding the aorta softening the catheter he did not testify that that that which is when he took the measurement was in any way representative of what one would see in a live angioplasty we would submit that that is not enough to find any actual instance of direct infringement if it was so easy then this then the courts comments in each pass repeated again in your world i would submit are correct which is that they could have found one doctor to come in and say angioplasties both dr botha and dr cronus admitted that those images were available to them dr vota had them in his hospital but he failed to preserve them dr chronos have a miniscule five but he simply didn't bring to trial the preferred to rely on the speculative nonscientific demonstration contributory infringement even if the court concludes that there was sufficient evidence to find an act of direct infringement that doesn't get them all the way there they also have to find that medtronic acted with specific intent to induce or contribute to those acts of direct inference and  i don't want to go too far over my time but the arguments there i think are equally strong if not stronger in the district court's language on inducement is i think quite telling that district court relies on what it perceives to be evidence of promotion of the e b u for contra lateral support once again contra lateral support does not infringe the m plats as contra lateral support the judkins gives contra lateral support what you need is support within the claim location for the claims length of one point five centimeters or more there is no suggestion that including ten to ninety eight specifically say that the current permits judkins amphlett style engagement which do not infringe medtronic he was asked to make its curve more like the vote up it refused to do so that's on twelve to twenty seven the memo memorial zing that recommendation and also unlike courtis which blatantly copying a vote is herve medtronic developed its own curve separately and got its own patent over the vote a six to five as prior art which at the very least gave them a can you can have support and greater levels of support based on factors in addition to the length of of contact with the contra lateral wall you can have support based on the materials that is there used to make the catheter and in this case what we did is we created a catheter with a smooth curve that doesn't have the bends that the boat in the angles of the boat a catheter has and it is designed just like it's depicted on page eleven of our brief to touch at a point and that is how we designed to do it and we get extra backup and support stockwell for dr with my partner play holloway i want to just march through and respond to some of the points but first i want to start off with exactly what the doctors testified about because i don't think that's very clear from and i'm referring to a sixty nine seventy seven through eighty which is dr cronin has experience a sixty seven fifty three fifty one in a sixty seven seventy four through seventy nine which is dr voters experience in what the doctors testified to was not simply feel in the sense of a feeling it was not simply feel in the sense of a tactile feel that they testified to was that there would be a diagnostic procedure you go in they would just scan your hearts the anatomy selection they would know which they would know what the landscape as they would then pick a month different shape catheters in the second procedure which was the guiding catheter procedure where they actually would fix the problem they would know and they would but the long link up against the wall now while they were doing this they were observing the angiogram to make sure the tip went into the osteo and a doctor voted case he swung the camera over so look at that line along the wall and you can't tell from the engine graham exactly whether the line is against the wall because it's a two it's a two dimensional image and what dr botha testified  the reason feel tells him he's getting a more than one point boss in a meter support and this is in the record he put the extra diane you can feel the into the catheter the pressure pushing back here and you can feel it tightening and he's watching the angiogram and seeing that longleat up against the wall dr kronos he testifies almost in one point two five the testifies that what he what he testified to is i can't tell you the specific measurements but i know the dimensions of the aorta i know that aortic root there is up three to have centimeters and relative dimensions tells me this is always this is three point two to three point five centimeters up against the kronos explain the same thing and then he took the jury through his cadaver demonstration which is circumstantial evidence of one point two excuse me your honor i would say that's direct the physicians testified they use also walked through with the jury how giving the giving them the cadaver study how you could visualize this when you're inserting the catheter in and you're feeling it so that was that was the testimony that's the feeling testimony that it's not just based on training it's based on the visual image of putting the work in to pin in the field at the end now counsel says well you must disregard all that testimony because of a tiny issue a seven zero seven zero zero five medtronic witness testified the e b u shape never changed from the time of its introduction in the united states even assuming their point about the timing there are certainly circumstantial evidence that if the physicians had done it before the no evidence are talking about was was not what what was struck was dr botha during the time of the court of the case in two thousand and five when he used the use he also did a cadaver demonstration with the e b using a heart but by the time the medtronic case was tried in two thousand and eleven he could not remember the details of that demonstration in the trial court said well since you can't remember the details of that demonstration i'm not going let you testify about it so that was the portion of the testimony that was struck so with respect to documents i heard counsel say well there were never any documents including the a thirteen zero sixty nine document that judge rana asked about that were shown to positions in the record it a sixty four clip with that picture that is in the briefs so as also i will be sending the e mail a video clip of the expwy engage in a glass arch versus the e b u you can use these clips to illustrate to your customers the contra lateral support mentioned earlier correct answer right the next page he goes on to say of course the sales reps use those materials in trying to sell to customers so the notion that document was not presented to customers is incorrect however the engineering diagram that council says well doctor vote us at this doesn't and friends that is a sixty five seventy seven a sixty five seventy seven was not a document that went to customers and that is a story that a temporary twenty nine in the engineering diagram the testimony that that diagram did not go to the customers was mr horgan testified at a six five seven seven this document was only to test shaped retention when you put the catheter in a glass archie put warm water in there does the warm water cause the catheter to lose to lose its shape it was not designed to show t physicians what configuration the catheter would say even so council suggestion a doctor vote of said that that configuration did not infringe is simply wrong if you check counseled by a sixty eight ninety one voter testified it was borderline so i think the notion that there's there is no evidence here is incorrect i think with respect to the testimony concerning necessary infringement we elaborate in our briefs the details of how this design was along the contra lateral law that first articulate portion was shown to be the orange portion in our brief that at the figure that was approximately two centimeters  that was the testimony from mr work furthermore we had testimony from dr botha correlating the design of the e b u to his design and showing why that design would necessarily result inference now than i i want to pause here just a moment the v m mix case and the other cases unnecessary infringement make clear that we had to show that the certain circumstances o where given that radio uses did not infringe that the evidence showed when you used it in those circumstances there would be infringement and we did that we show that this catheter was designed for farmer use and we showed that when it catheter set higher up opposite the wall from the osteo versus the accused e b u which sat lower than it was more directly opposite indeed mr horton testified that his apex would have to be directly across from the steel so all of this necessarily showed infringement we met our record there i do want to refer a little bit to the valve or tissue in this case could dabur demonstration here was as much about showing the jury was trained physicians could using the visualization that they did have of this three dimensional aorta plus the feel said if if if we had showed what we showed in chorus they would not have a point we did the only thing dr voted did not have he had his recollection of injecting the dye and seeing more than measurement which is why we did the cadaver demonstration so we can show a specific measurement i do want to address the cross appeal that we have that the cross appeal in this case really provides the court the first opportunity to address the jury's role when the jury finds facts related seagate's objective prong versus the proper role under under infringement defenses were objective leon reasonable the trial court gave no deference to those determinations and instead simply said well medtronic put on defenses of contributory induce of infringement now in the first instance those defenses hard on issues of knowledge and intent that appear to fall more within the subject of problems than the objective problem but even assuming they fall under not that leaves only the issue of validity and here i think the trop fort misunderstood this court stand or the character of the defense that the infringer have to present is not one that just have to pass the prior decisions and prior authority if there were prior decisions apart already that was a good grant of concluding there was no objective we reasonable grounds for percy we have that here the art on which sense was art that had been considered by the patent office in original prosecution the jury in the court of case or this court in the course appeal so we have a situation where the judge said well metron it put up in this sense the jury has a certain portion of the record right the jury saw the infringement case all the whole infringement case that portion of the record the trial court in deciding the alternation of infringement that the trial court has to respect that there will be portions such as in the cohesive case of the record the jury does not see it such as claim construction battles over eight he claimed construction term that only the trial judge sees and bart is really getting to that notion that look part of the entire record of proceedings the jury may not see but the trial court will see notably in this case there is there is no claim construction issue that medtronic says was dispositive there so there was no legal issue outside the jur blue defenses either turn on our already considered by this court or glittery defenses related to new art that they had come up with that by stipulation they said if it was sufficiently similar to what was put in the reexamination objective lee absolve you of in frederick especially here where we relied on that patent to show more than one point five centimeters of engagements so it's not like the patent went to some feature that they said oh well this is says that he used the e u after two thousand beginning on seven seven thousand five question you began your clinical fellowship in june or july of ninety three i think you said answer yes and no that was in the united states i previously trained in britain and on a fellowship in britain in ninety one i understand you started doing procedures here in one nine hundred ninety three procedures middle of ninety three ok and during those procedures that you did in the early ninety's and here in the united states you were not able to see the opposite wall of the aorta in a typical procedure because there wasn't enough contrast answer correct question and the same was true in the mid one nine hundred ninety s you might be able to see a shadow but you couldn't define the aortic wall because there wasn't enough contrast answer yes and you don't recall the specific cases that you did five years ago much less the e cases that you did fifteen to twenty years ago specific cases no and you don't recall the last time that you use an e p you answer i don't question i think you said the number of times that you would use the e b u was either the tens or the hundreds you just don't remember answer i think probably a couple of hundred if you think about it if i was doing when i was doing a lot of angioplasties i was doing two or three hundred patients then it would have gone down so if i was doing n g a classy for fifteen years i would say i probably used extra backup for some form of thirty percent forty percent of the patients so clearly it's several hundred patients no testimony about the accused product the medtronic e b u he never said because he could not remember the last time he used and you that's the first point the about seeing and i believe mr stockwell's words were seeing a long length against the wall in actuality what he talked about was seeing a segment leaning against the wall and that's on sixty seven fifty one at line five he's talking about what he perceives to be a segment of the e b u that was fixed because it is because quote it is leaning against the wall of the aorta now of course something can lean against something else without touching it over its entire length dr vote over its entire length and the story can testified to that with respect to the voicemail i will note that mr software was very careful to talk about contra lateral support and then to say that the voice mail was a huge used but not shown  any outside doctors so the notion that any of this material actually went to outside doctors is speculative and not based on anything in the record on the diagram that i keep referring to on ten three twenty nine  brief mr stockwell contended that dr voted testify that that was borderline that is not true the page that i at least meant to cite and which i thought i did cite in my opening argument but sixty eight ninety three and on sixty eight ninety three but the point is that he admits it is correct that that drawing does not depict an infringement with respect to the willfulness issue i just said i think art is clear the issue of objective lee's nobleness is an issue for the judge to be decided as a matter of law the judge is in a position to evaluate the reasonableness of the arguments de novo and i think in a case where there is no allegation of direct infringement by medtronic obviously the only accusation is of indirect infringement inducement and contributory and i think in a case where you have a company that develops its own device independently with the goal of contacting the aortic wall at an apex not on the links deliberately refuses to make its product more like voda even though a doctor asked it to and undisputedly has a product with non infringing uses then the judge is well within his rights to determine as a matter of law that there are reasonable defenses to induced infringement unless the court has any further questions and happy the rest of