i was reading the statute in that brief moment and i can see your point that that there production requirement to could be read into three so i don't want to i just not the way i've been thinking about it but i could see i could see how you could get that it's rational well i'm not sure it would because the goal is american jobs and so if the university is going to buy but if but if r and d and engineering can then american jobs count in the land in the university had licensing income wouldn't be sufficient i think if you can draw a distinction and think it's rational when you put yourself in the shoes of stanford university or someone like me stanford university has a patent and it needs to show i just have one never narrow question but i think we can get rid of an issue and that is or possibly get rid of an issue is i understand your pattern exhaustion argument as it relates to the samsung patent you're you're relying entirely on the fact that the license itself refers to a worldwide license yes but then we say that is there any evidence that that in fact that there was any product that was sold in the united states under that license  idea is to promote them to make an invention and that's settled law that you get paid for your invention once you get paid for invention what you don't get paid multiple times for the same invention from the same person i don't  country that if you destroy documents in bad faith the burden of shifts to you now as the bad faith the structure of documents to show that that did not prejudice the other side and we are to review the bad faith determinations that were made in this case on a substantial evidence absolutely on it just as we were talking about earth unlike in my crime where we remanded yes the district court to say whether or not she really intended to save their fate we have a very specific fin it's pages and pages of spoliation in bad faith and then there's a paraphrase he said reluctantly i can't hold for video here because i'm going to place the burden on invidia and that is just clearly wrong and so assuming that that was wrong yes so that we're not sure i mean it certainly seems to me that the outcome there is going to be that they can't satisfy that burden so in that sense the court i think is free to do that on the other hand it's a little unusual for the court to as doctors knew and as i mentioned to do it on question is are you going to put us through the the you know pay the bills put us through the exercise i mean it's i can't believe that we could obviously show concrete suggestions the burns as it is this budget enough of a concrete suggestion for you to simply say the prosecution files were destroyed and  the parent application was pending at the time is that enough or do you need something more we have a lot more i focused on this this conceptual tree missing documents but i find that very accessible mr barth as inventor here outside of his office he had a filing cabinet he testified that he kept notes are both at their pending apple pending applications and the way the industry was evolving so he could figure out which particular claims to prioritize prosecuting it was a on this issue is the consideration of what would be their property sanction different in the i d c given that the weight of the government behind the injunction that it would be in a district court i'm glad you brought that up your honor because i mean i think it would we are operating under a very extraordinary exclusion order in this court to recognize that a solution order is very damaging the day went into place we started having to spend significant volunteer rambis and we really feel that that exclusion order is unique and it really should be vacated promptly because what we have here is a party that has destroyed documents in bad faith and is getting paid now because of that and that's a daily thing that we have to have to suffer through i'm not sure i quite got that the question is the public interest component come into play yeah i should which is a party acting even worse when they destroy documents as part of an eye to see proceeding and they are a district court proceeding i think i think there is that there is a federal statute that makes it i think a crime to destroy documents for a federal investigation  textron an extreme and internationally provocative remedy you have to have enforceable or so you're saying that we would in fact have to prejudge what the appropriate sanction you know you are because if at the end of the day first let's start with hynix then because we were talking about migrant this court and hynix i think made clear that right if you are a member of a standard setting organisation that requires you to disclose absolutely but the point of that requirement is reliance's to show that you know when i remember the standard setting body and my behavior will change whether or not i'm told that one of the parties is highly pathogenic have to be a member at the to we the industry and therefore us would have gone in a different direction so you go on jay's specific reliance on the finding that they weren't members of the organization is was any are in error in a legal sense you industry standard setting organizations we're being sued for industry compliant products we would have made the industry we would have made different products if the industry had known of these pants and gone a different direction so the fact that against these industry standard who are you going to tell me about no because that person is under duty to disclose their patent applications rambis signed up to be a member of this industry sans any organization second that the argument didn't quite work in hynix because this court emphasized that ram was had disclosed the formal patent and disclosed other plans but one hand had been disclosed to the industry so the industry knew room description they didn't know the plan but they knew the written description and that this court held that was enough but here there was no similar there's no different barthe patent that was disclosed to the industry the whole worth application all these plans always pants and never innovation if people invest in industry standard compliant products thinking that it's the way it's clear and somebody was part of that industry stands that in group them bring suit years later investments later and then of the basic point is they file the patent application which is what's allowing them to sue us now while they were a member of an organization that required them to tell the public tell the industry about that application and they just didn't do that try to simplify it for it but for us all but there are there is a patent the formal go three seven and the bar three five three would use as examples it's common ground that there's only one point of difference between those two plans and if that point difference is the same then the pants invalid because the formal patent comes before we can have another patent on the same invention the only point of difference is is this strobe signal and the extra clock whether the stro car operates as a strobe sick so i set that up so the elder in this case said what a strobe signal does it starts the data transfer in hynix members persuaded the district court particularly unusual for a party to have two interpretations of the same claim and there was no response to that in the breeze ok let's hear conten threshold question of domestic industry if we were to say for instance that the plans running for similar that they were invalid great reason do we need to address the domestic and we do not section thirteen thirty seven is not a knacks and paraphernalia we also have from then until many was making them where someone was making it but it wasn't being made in the united states and that's what i interpreted judge clevenger is question to be we also know from that legislative history that congress was looking out express at non practicing entities universities hospitals and so forth so it's never been the commission's position that section eighty three alone or in connection with a two requires a malley talked about a couple of arguments ago with my colleague and if you'll just indulge me for a moment in the instant investigation we have a technology license for the very narrow discreet field to be used for purposes of the birth patents there are a number of c i t the licenses in that in the record one of them setting forth the narrow field abuse is a page a four one four two six and when we  there's no testimony in this record at all from from a license she's saying i give you my money because i love this patent i want to be able to use this there is a great large sum of money that is identified in the record wanted to pay for that particular band that's in the well i wouldn't characterize the record here that way i would characterize the record as we have a narrow field of use we have a showing that in order to practice that narrow field of use and again the field of view since it's a page long of  of detail in order to practice that field of use you have to practice this where well for each for the where perhaps there was one field to be use with the the xti are controllers and for the part patents if i'm not that's package licensing provides the parties a way of ensuring that a single licensing fee will cover all the patents needed to practice a particular technology and protecting against the unpleasant surprise for licensee who learns after making a that would be wrong we believe that the commissions in interpretation of the statute that a substantial investment and its exploitation can remain that with respect to a technology license that very different patent license and we've done the best we can to provide as unredacted an opinion as we can it was it involved sixteen hundred patents across a very very wide field of use that in some industries would have just been across license for an entire it would've been a license to see an entire on the entire patent holdings of a firm and under those circumstances where  a broad patent licenses covering substantially unrelated technologies substantial value cannot be presumed from anyone happen and the commission looks elsewhere under those circumstances it's a very broad license the commission's going to look to see for example later one it cited it cited this decision favorably several times and the commission was aware of its of the decision here when it decided that i'm to the extent that the difficulties are because you know the commission does not operate with public trials and the records of the other investigation are not fully public that's a struggle the commission deals well with this the license is deals with them trying  to advocate to the court but the licenses were very different in any event that the record is what it is here and although we're mindful of the fact that the court can and should look at other material including for the public to get its hands on because these redacted opinions take out all the jews and we really don't know how many dollars who are now in the laboratory or whatever and you have some sort of data points it would seem to me who is a managerial employee for the board and the commission does not engage in substantive role making like the end all or be the commission chooses to proceed on a case by case basis the facts here the  decision making that is always taken into account by the by the commission and there's a there's a list of factors that relate to the public interest that the commission is charged by congress with considering whether this type of issue with  clean hands is fits within that or i don't know and i don't know how the commission would address this would be question of first impression ok commission's perspective that the commission does not dispute that a finding of bad faith was made here it's the commission's position that notwithstanding the fact that the burden was a stance oblique placed on the wrong party that as a matter of a good morning miss you james may please the court lot been said about domestic industry but i'd like to make just a couple points and they really concern ramesses business rambis is in the research and development business they do develop technology and that's the point of the technology licenses are two different types of technology licenses and their patent licenses the administrative law judge in this case relied on the technology places and what those do is they give the manufacturers a design they say here's how to do it here's the information the know how the actual design put that in your products and when you do that you get a license under our patents those are the manufactured outside the us but the licensing industry is here and this is in california they develop the technology here and they license it around the world and you're saying this basic technology that couldn't be practice without reading on these plans without using the bar patents and we established that through these claim charges that were introduced and not challenge that's undisputed we showed how a claim of each of the patents reads on rambus is technology that's the link now there may be other patents that are used as well so the question is as are substantial investment in this licensing attributable to more than one patent it is but we should be punished for having more than one patent if we were just a sole industry with a single patent i suppose it would be easier to show but i think trying to divide it up among all the patents that might be used is unnecessary that investment should be accredited to all the past three years and it's a substantial amount so you're saying that even if even if you have a patent portfolio to trade two hundred to three hundred patents and and really what everybody wants the first time or the first trial that you would happen you'd be able to satisfy the substantial investment requirements with respect to that two hundred forty ninth even if people just own the patent at don't really care much about it well now you're shifting over to the patent licenses the technology licenses you get the design it is what it is you use it in a product and it may use use twenty pounds it's in the manufacture isn't getting a license because it wants the patents he wants the design and with that it gets a license of the pounds just like a manufacturer they're interested in selling a product that's covered by the patent but it's not primarily motivated i was on my correct that the technology licenses were entered into at least before the bar of her hands were issued for the most part yes that's true the applications were on file and for example developed out of that and they were filed for that and you see you get a license under all pending patents patent applications that are needed to practice that and if you look at the revenues under our dram the rambus technology the ramp of the revenues up through two thousand eight you can see the quarterly revenues that people were paying under to use this technology now the patent licenses can present a different problem because you have a large portfolio maybe they're motivated to just take a license under one of the patents but they get all of them that's not really the issue we have to confront and that's more of what was in the garment case where you that sixteen hundred patents most of them outside the u s and as a as counsel pointed out in that decision f i suppose i should talk about spoliation our basic point is we produce the doc there has to be relevant documents that were destroyed there are specific findings by the way on saying that you have no record of what was produced and that i mean what was destroyed and that you did not know what was destroyed it's you do not know what was destroyed and that included patent files or when these applications were pending how can you say that you produced everything and i prove a negative will no evidence i understand your honor there isn't some burden on the other side to go forward first with plausible concrete suggestions you don't think that my current says that once you find bad faith that that  completely bad faith with respect to what it does say you need plausible concrete suggestions before that burden show us before we have to come in and chill in the absence of pressures and that's because if septa where you have bad  faith with respect to what if you have the bad faith findings in this case are about as strong and and they could possibly be i understand your honor and they come out of the deal in cases which are different cases on different products and what say we understand that rambus had a duty to preserve documents for those cases based on this evidence now we have patents that issued much later but the application for this patent was pending when those may wonder well if we had destroyed those with germans would have made because they're not relevant evidence in the case anyway there's no excuse me there's no argument there that they should have received those documents we are spoliation to me that says we destroyed relevant documents and there hasn't been any showing of that there has to be a plausible concrete suggestion as to what was destroyed if come up with these two examples and we've shown that we produced them but when you admit that documents were destroyed yes you admit you have no idea on what was destroyed you can't know record of what was destroyed and you didn't let people know what was destroying right how do you expect the other side to prove that something that was destroyed is something that they would have like there are ways to do that here are documents often referred to other documents there's testimony that they can take through discovery it's not simply a matter of imagining what documents might be out there they have to come up with a least something that indicates there were relevant documents eject issue which i can get to should be an open and shut case so we were only a member there for two months after the patent application was filed the standard that was being talked about didn't come up until a year after we were member at the same time it did refer to the infineon case which does discuss those things in particular but the d d r standard that is implicated here was not discussed until late one thousand nine hundred six that we were no longer a member by that time when we have a universe of relevant documents it does rebut the suggestion that there are others that would be somehow more harmful or different think the conceptual tree this is something that came up late in the proceedings if you look at the conceptual tre it doesn't lead to any issue in this case there's no way this could possibly be relevant to something that is a has to do with claim construction or infringement or invalidity that's how we show the absence of prejudice and as far as i'm concerned we've already done that make a finding that the relevant doc if there was no evidence of the old documents had been destroyed and that is supported by substantial evidence whether or not he found ramesses motivation in destroying documents related to the dram cases different cases different parties different patterns whether or not that was true it doesn't carry over to this case and that's also why we have challenged the finding on the anticipation of litigation has to be reasonably foreseeable and if you look at some of the indicators in the micron case such as whether the patents are issued such as whether there were particular manufacturers who are known to be infringing not the case and videos product that's being accused in this  investigation didn't come out till two thousand and three it's not really a surprise that there's not showing that relevant documents were destroyed because this was back at the time it really has nothing to do this case i do want to talk about domestic issues just a little bit more but let me start with mr jakes ended the idea that this record has an l j saying that no relevant documents were destroyed it just doesn't hold up when you actually look at what the l j said if you go to for example are done one seventy all of the witnesses relevant to this topic admit destruction of material relevant to this case was done and then the one seventy again evidence was destroyed by rameses is likely to have applied to any or all of his path it's all over the the l j decision here and that that is clear so all of the rams like to suggest they produced everything that's been asked for they've clearly destroyed lots of documents some of which we don't even know what it is and so on that reason alone under my country would has to be remanded but i don't want to lose the forest for the trees we were discussing before that we're operating under a licensing and exclusion order that is causing this company significant fines every single day and it's premised on the idea of an enforceable panel even though we have a family in my country they spoil any documents of finding here even though in this case and exhaust the opinion that that this document struction was in bad faith and i do is to court as soon as possible to vacate the exclusion order you know and i was talking about the public interest factor and how that weighs and i think it does make clear that neither the statute nor the legislative history suggests that congress intended for the commission to credit what foley investment to a particular plan and that's a page thirteen and they're just reading the statute consistent with