and design two different versions of a monopoly game the canceling can use your time however you want your fifteen minutes of fame but given the shotgun nature of your appeal i'd suggest you had an issue sure thank you your honor the reason i was i was mentioning this is in fact there were the new designs included among things the many things in the monopoly board changes to such things as the transfers of money and the the tokens and the ga itself and the properties and everything was changed and the reason i want to bring that to your attention of course is because one of the measures of damages that mr bowling must have obtained from the jury was based on the entire market value before i get there i do want to address a claim construction because that's the heart and soul of almost any patent case and every single claim of the boeing patent actually requires that certain facets  identically shaped and have these set the equal surface area these claim terms are used in the specification in the claims without any kind of modification they don't say  substantially equal surface area they don't say about equal surface it's area they say equal surface area and what we're asking this court to do is in fact find that the proper claim construction is is what the spec says and what the claim say and that is that certain facets have equal surface area why isn't the trial judge allowed to use common sense exclude the difference in surface area in the minute difference in surface area because the the numeral two takes up less space than the numeral eight the reason is that in fact throughout the spec caught the specification some of the words of th tell us anything about whether the incursion into the surface to inscribe the numeral should be excluded from the calculation of the specification goes on when describing the drawings it describes the drawings as having edition they're wrong that is it's on the facet a facet of course is a straight flat surface and it's on the facet now now here's a bit of a nuanced point but i think it's very important and that is  they actually found the continuation of this case which was a design kit and in the design case they have absolutely nothing on the surface as they're perfectly flat and what that tells me is that if there is no new matter it means that those had to have been flat in the previous case because what this this what the court has said in the uk in re daniel's case is that you can remove surface ornamentation and it not be a new matter but you can't take a change in geometry can't take purposeful in the case of as bro purposeful gouge is and and contours and make those flat and it not be a matter so if you take a look at the file history as a whole including that design case you would say that these services had to be flat and i will also say that one of the frameworks that the district court used was was incorrect and i think that it's what led to an incorrect decision what the lower court did is it said i'm not going to interpret these claims in any way that doesn't cover the commercial environment for example that commercial body mint didn't even exist at the time that the case was was filed he also says that he's not going to enter with claims to cover what he perceived to be in the drawings but but the specification itself says nothing about the possibility of using indentations in a dive and one of the things that we did argue in the market is in fact not to court can actually take additional murders various laws in atlantic city for example you can't use a doctor as pip they have to have flat surfaces and so when he talks about a fair play die and he talks about the fact that  i don't disagree with that specification doesn't discuss indentation on the district court said he looked at the figures and clearly there are carved out or indented numerals i guess he took from the shading that that's the case i question this is not a fact finding my him how do we treat that because ultimately this is part of claim construction and that's a legal question runny seems to me there could be underlying facts i mean so what do i treat not as a fact finding or a legal determination his determination of what the figures disclosed in the past that's a great question i think claim construction is a question of law as you know i think it does seem to be a question of fact as to whether and even though i understand your argument that she's not want to scale in the yard or it hasn't been established that she is i didn't look for her testimony then i'm just curious what was the purpose of offering her testimony i had i don't are and it's it's actually contrary to the words of the specification which talk about fair playing guy talks about same surface area and were were when i when we talk about wh where numbers are printed upon the dye because the printing would certainly affect minutes in a minuscule fashion but nonetheless other that the weight especially you know a number one versus a number ten you've got a whole nother numeral on that printing under your what you're asking us to accept as the fair playing di discussion especially cation seems to me would exclude printing as well which then leaves me with no way at all to reconcile the every single figure and embodiment here in which has numbers on no i  wouldn't exclude printing and i wouldn't exclude minute miniscule differences and i wouldn't require somebody to take out of a spy electron scanning microscope and fractal geometry to figure out whether the two sides are  same surface area in fact printing and using the kinds of tolerances that people used to make dye are perfectly acceptable for example we're not contending that that each  essentially it would take the pain that service and those pips particular in the different dream one and six are actually quite significant and so just say that for the judge to interpret that claim by not interring the claim but actually what essentially reading out a limitation is improper what the judge said is that identical in shape and having equal surface area is and stead of defining says without shape and equal service area and the reason we raise them together we're not disputing what identical shape is it's you know using tolerances the dye people make is that and then it will shape or is that but what we're we're raising that with the court just to let you know these aren't the same limitation they have to have the identical shape basically the outside surface but they must must also have the same surface area they can't have these purpose built indentations that a dye would have and again that this is a dye that wouldn't even be legal in gambling for example but unless there's any other questions i do want to quickly address a to  few other issues that are that we've raised if i could turn to the marking issue quickly a sensually what we're asking for is a statutory construction and instead of laying out in  the dye that could have put the dye and packaging which came went to a consumer they could have done what hasbro did in its product hasbro had a little plastic bag around its dye they could put a plastic bag and and put a patent number on that but what contending at is as a matter of law as a matter of law there seem of having these in billions in retail stores is not packaging even if you trust that every one of least you can put some packaging on it beyond being in a bin in the store and on the issue of whether substantial problems will also say that the cork the proper did hear from  one retailer who in fact stated that the way they supply the way they put their dining is they put them in a case in the front of the in front of the store and the most expensive darren pot the cheaper dire on the bottom and they were organized by number of sides and had nothing to do with the manufacture so if you wanted a cheap succeeded di you go to this big yarn expensive twenty sided die and you go to a completely different  rebuttal let me just say one other things and i was that the but it was a little bit in there but the issue of damage is very important and the issue of damages is important because in the toy industry unlike any other industry companies actually do license in they they take licensing and scream very seriously and there was testimony well i will say there's there's two ways they could have come up with the number they came up with the jury but c'mon show or understand your position you're saying that this patent is required to grander luncheons even though it wants to be in the business and make the product itself  issue yes there was no evidence that they were trying to get any kind of last profit and so that refused to once and so that we know they said no buy from us not i'm not sure that's actually correct i think that they actually negotiation which which turned out to be a failed negotiation but i'm not sure that they were saying they absolutely wouldn't like this under any circumstance but the reason damage is so it is so important is that in order to show the damage that they got they would have had to show that the dye was the basis for customer demand and there's actually no evidence that it was the basic astri mad in fact in the in the cheaper version of the product there was displayed on the very front cover regular six sided die and so say that somebody look at that and i'm going to buy that because i'm going to bind that there's a fancy dye in there it's just not credible time has expired contacts expire if there's no other questions why waste time on telling you what we already know simply what you should do is respond to what he just said at and that's exactly what i'm going to do think your honor at the district court level the claim construction of equal surface area that has  asked the district court to adapt was quote each extension member asset has the same or substantially the same surface area measured as the surface of a three dimensional object now that's a different construction and when they're asking this court to adapt when they're asking a judicially a stop do or we should ignore it or what are you saying i'm simply saying that having not asked for a different construction at the district court level they should not be permitted to ask for one on appeal but in any event the district  if if their argument is there's only one correct instruction and this court of obligated to issue the correct construction why shouldn't they be allowed to request t correct construction even if it's different from what they said below well this course president has said that arguments not raised at the district court level should not be permitted on appeal however even if you're if you ignore what they asked were it not an american rule we generally don't let people see and bag the prowl formed by presenting a significantly different approach on appeals it's not an iron rule and lots of times we allow people to make new arguments on wheel and if that's the case here the district court correctly construed the term equal surface area to be equal without regard to the negligible variances caused by indented and the specification of the one nine patent  indentations is not a fact finding or part of the legal analysis incident to claim construction then i think that it is for the district court to determine what the patent disclose to one of ordinary skill in the art i think that in any case that a judge is attempting to to determine what the patent specification discloses to one of skill in the art there are probably some factual issues inherent in that that's why judges are permitted district determination of whether this picture depicts indentation rather than printing is that a fact finding i think it is a finding that is a part of the legal claim construction process but that raised quires the judge to look at the art in this case i think you don't have to be skilled in the art to look at these figures and see that they show three dimensional indented and disha in fact if you look at the dye in figure one and you look at that first number that spacing directly upward is the number three there is no shading on that number because you're looking directly down at it and so you're not seeing the walls the side wall but if you look at the two numbers that are on the side it's where the sides of the dice are are moving away from you in those numbers you can see the sidewalls as you're looking at it because if you were looking at those from you would look down and see the side was the only reason that those drawings would be made that way with no side walls on the numbers that are facing directly up toward the viewer and side walls to show the depth of the numbers that are on the other parts of the dice would be to show that these in these indices are indented so it sounds like what you're saying translated a little bit is that the district court made what i think you agree with judge moore could be fairly characterized as a fact finding about what the rowing shows and rather than i guess because of cyberwar arguing for some sort of deference to that fact finding you're asking us to make a fact finding and look at the picture and interpret it the way you interpret it the same flight there's a serious issue in this case as to what respect or deference  or fact findings or close analogs made by a district court should be afforded by this court but i think that this court's precedent is clear that the district court hears all of the subsumed in the overall legal issue of what the claim term means and now most people have interpreted that to mean there are no fact issues in claim construction because there are some soon so they don't exist but more ask is there a fact issue here i thought you said well you know well not exactly and what i think the issue is here the reason that they keep this court cases on this issue discuss whether it's a fact or law issue is because of the standard of review which in claim construction is de novo because it is determined to be a matter of a lot of a lot more diligent engine of home of the construction depends on the facts on i think either way that you review the decision in this case it's clear that the district court construe this claim term under the only he's saying it should be taken literally the words have no qualification therefore the surface area should have to be exactly precisely equal your honor i think respectfully this current president has said that when interpreted in the cl in the claim phrase as a modifier but because of my understanding of the context i can interpret the claim as if it did read approximately equal circus here and i don't think that's the way that the district judge did would say i don't care what the witness says the figure shows i can look at the figure even an appellate judge and i can see whether it shows in them patient or not exactly and i think in this case that to anyone it and the specification describes those units the suing the question of issue we know it's a difficult thing you are walking in assuming that these figures have to universal be accepted by everyone as indicating indentation and then you're saying well once you assume that th that's the very fact they're disputing well then when you make that consistent with the equal surface area you win on playing construction i don't think they would dispute that i don't think that maybe i'm wrong maybe they still would but their real dispute is these figures don't necessarily translate into indentations in fact they argue it's printed on and not indented and so i think that is the crux of the problem and in your avoiding it by kind of stepping over it and so i what i need to know is why how in the world i come to a conclusion that shading necessarily implies indentation and i don't see anything in the spec that indicates that and so i was kind of hoping maybe i missed something or your honor at i can only give you what is in there and what is in there is i don't think that shading first of all i think if you look at the figures closely you'll see that the die the numerals that are facing directly toward the you are actually don't have any indication of depth because you're looking straight down at it you would not see the sidewall if you look at the other into show that are on the those dice are fair playing dice the specification defines those dice depicted in those figures as having equal surface area as being fair play dice so to say that it can be of equal service area and be fair play dice without hear you say that i would have thought you'd say even under their construction printing it was on the surface and printing by itself would also have an effect on the notion of this being a fair play dies so i would think that your argument would be under any set of rules fair playing di was not meant to be absolute because even if we construe this was printing rather than in addition it's still not purely absolutely fair playing well and i would agree with that i think that as i said before you have to the claim terms of the pattern in the context of the technology here and here we're talking about dice for game playing not semiconductor wafer is the level of precision required in dice for game playing is obviously different and in this case there is testimony that was made of record indentations caused by the pips or numbers on the sides of the die i don't affect the playing of the di in any substantial way obviously hasbro or any other game maker wouldn't include dice in their games if they didn't function and they do all not corrected by what's your response of the put camilla the facts of the entire market value rule well i don't think that there's any legal entire market rule application here the evidence of record in this case show that the industry standard in the game industry was to calculate the royalty based on the net sales price of the game minus allowances and hasbro senior vice president of research and development testified that the industry standard in the game industry is a five percent royalty he calculated out the five percent royalty on the on the infringing games to be five hundred fifty thousand dollars proximately you could games done for instance the time frame yes but the evidence in the record which was decided by the jury as a matter of fact is that the method of calculating a royalty in the game industry is to base it on a percentage of the net wholesale price of the game and mr hurtle hasbro's expert testified that he was not aware of a situation in which has  component royalty on the price of the game however that as the district court noted in the motions for judgment as a matter of law after a trial a document was actually produced by hasbro showing that it had in fact based a royalty for a di on me into on the entire value of the game and the fact matter is that the authorities have source and licensing in the game industry which has pros own expert referred to said that in the game industry the industry standard is to calculate the road based on the percentage of the price of the game issue mr hurtle didn't fact testify that there is a standard in the industry and my point is correct the standard is industry is three to five percent for games as i said as growth licenses and a lot of games but he also testified that for a component it wouldn't be entire market value and in fact in this particular case the there there is zero evidence that that game was sold because of this particular d or in any way raise this issue below at the district core i believe the jury instructions had a standard instruction relating to determine what a reasonable royalty was and on the facts mr hurtle actually did a calculation where he  one point four cents per dive for the expensive version and about one cent per died for the smaller version now he did it to be fair i did testify that that would be my starting point that would be my standard starting point fo licensing a component like this and there are certain things that my way heavier and lighter and so had the jury come back with with one and a half cents a die i'm not sure we can be up here here arguing