the this court and so i believe that the issues here today are of leonardo and i would like to address a couple of those and first i'd like to address the issue that adversary takes the position in this case as to way that a reversal of that determination would have to be in abuse of discretion in adopting gross revenue as the basis for the royalty in this case as runners know from the prior hearing the argument before the court  remand determined that two hundred sixteen thousand dollars was an appropriate award based upon eighty percent of two point seven million dollars in gross revenue or gross sales really the same thing our position is that the burden with respect to royalty fell upon the plaintiff or a pettily in this case and that what the trial court was faced with in this case was really a dart b questioning the percentage range that was determined by the district hard i see it as questioning what the basis i understand in base that is supported by the actual negotiations i the devices themselves and i'm right you're right except that we are that gross profit instead of net profit is the appropriate base here and here's why but the record here is th the other sign has drawn exhibit c c which shows that the parties at one point was planning on using sales revenue as a basis for a pop possible royalty what evidence do you have on your side that would show that the hypothetical negotiators really would be using profit as judged all just alluded to the email that was made part of the evidence at trial before judge stewart which talks about a discussion between the principals of the two companies where yes but think the numbers that we're talking about are they profit from six hundred thousand dollars the gross revenue being two point seven million dollars to respond to your question judge chen we believe that by judge stewart keeping the world rate at eight percent and not changing that where he had no expert testimony where he had  profits is the base is not stated in there indeed something to the it seems to me to the contrary because this is talking about the license fee and it says  and the reason we advance gross profit as as an appropriate measure and i recognize fully that most courts use rosales i recognize that and i have knowledge it but we think based on the fact that they were using and negotiating in real time a lower royalty percentage the fact the judge steward kept eight percent henri manned and used unchanged i want to be clear about it's more healing that the that the fact that judge stewart on the revenge did not change the percentage at eight percent and the fact that a page five zero six there is a reference to a much lower percentage that he erred when he used a higher number of gross sales and that based upon the fact we were dealing with a dart board at trial no expert no testimony on it that what to designate as the base and then one side had an exhibit to point to that showed you know there's some evidence in dishes that the negotiators would use sales price and he said there was no evidence on the other side of a lighter that would suggest why the two parties would use profits why isn't there why is it clearly erroneous for the judge to use the one piece of evidence  pointed in one direction or the percentages not before this court on appeal so that's absolutely correct that eight percent was adopted it wasn't challenge what we're saying is that the eight percent of along with the documentation that is in exhibit sixty six which is at page five zero six supports an approach that would come up with gross sales to gross profit as a basis a middle ground you got two point seven million dollars against a percent of the case was remanded based  upon eighty percent of the gross profit net profit we think that gross profit at six hundred thousand dollars is the appropriate remedy and we think that it in the world of damages there's usually a range of what can be appropriate and he decided this question is not whether yours would have been just as good but whether his that if there's there's going to be a determination that my client should not be penalize as a result of that and that's why we believe the judge jury erred in determining that gross sales would be appropriate based to go can start just just going back to another point you are making i think you are saying that down the percentage rate of a five hundred six is very different than eight percent and  i guess some of their percentage rates are like five point five percent which is less than one percent what about the fact that when you are in the exercise of a hypothetical negotiation at that point you're presuming that out in two th and infringed and it's under that contract that you're determining the appropriate royalty rate to be applied to or the previous case in this case center not challenging rate i mean isn't that something that the would be proper to be taken into account the fact that this is the evidence that a five or six is before anybody has presumed that the patent is valid and infringed i think your question if i understand it is that the rate might be a little less where there is not any determination or any resolution that issue until eight percent is not far off because that's it i mean one one i would be you know under the hypothetical construct you're not just looking at what the parties actually negotiated and just got of that drop there of hundreds standing hey now it is uncontested that patent is valid and infringed in in most cases that would be the case in this case as i say judge stuart had nothing to work from and so we believe that is determination with he went through the georgia pacific test with respect to the rape that's not before the court and that's not disputed came up with a glitch that we think in addition that kept the rate the same is is is is it impacts on the base and to your point the negotiation at five percent you could argue yeah that once the palace the plan is to turn to be valid it may be higher maybe lower has it's not our position is that what judge stewart did on the rebound was arbitrary capricious and unclear error on the basis that  on the basis that he should have used gross profit as a reasonable middle ground here he still had nothing else to work with you used half of the time that you  i want to begin with the premise that judge two are found you don't exactly know why i made that finding one of his findings was this was not a close case now the reason he said it was not close i still don't understand and i think it's legal  in his in his findings but he's determined this was not a close case and why was it not a close case this is a case in which it was not only exceptional but extraordinary and stands out from others this is a case in which the defendants had approximately eight years to show some type of defense and they never did and i just want to return to the history of this case just a little bit in two thousand one hundred that market we have trial testimony which we cite in the brief that the defendants were following our actions they were looking at our website they were looking at our product materials and they were looking at us at trade shows so here it is in the in the market from two thousand and one to two thousand and five with its unique patented device enter defendants into the market two thousand and five what do they come with they don't come with some other device that doesn't infringe they come with a nearly dead on the knock off for years after we come into the market copying can be shown not by some smoking gun but by the circumstance circumstance in this case we have the admission of the parties they were watching us and so what we have we have them copying us coming into the market then what happens is watching  from the get go there's no issue that we didn't have it marked from the get go they knew or should have known but worse in two thousand and five we send a cease and desist letter and what happens we get totally snubbed nothing instead they choose to litigate and and from two thousand and five until the briefs in this case they argue this denial of the preliminary injunction before the united states district court in new york it didn't go to those issues it went to an issue of personal jurisdiction and a lack of something actual information that was yet so what we have in two thousand and five we have to cease and desist now they are for sure the notice of our allegations and they do nothing do they present no evidence of nine infringement and no evidence of invalid to the united states district court in district of new york that case languishes three years in hague convention service people have the date it's in the it's in the cases it's even in the courts previous decision but the point it's we bring a motion for summary judgment on that infringement and what do they put forth with fringed meant defense with respect to claims one through fourteen and single piece of prior art anticipating each and every element of a single claim what do they present nothing zero this is now two thousand and twelve or two thousand the two thousand and twelve so now we have them in the market from two through your argument here is all about i guess really one paragraph in judge stewart's opinion in which he walked through the read against porto factors and i think your argument more or less by definition is that he abused his discretion by making a series of clearly erroneous findings or otherwise you know misread way so can take these one of the time it would be happy to do that first because he did find that they will was making similar products prior to the issuance of the patent ok perfect that's iranians because when it came to to their summary judgment motion on nonvolatile invalidity they had an opportunity to put that evidence and not only didn't didn't they they couldn't because the very things they put in the court rejected they put in some vague screenshots they put in some schematics that had nothing to do with it and so when it when they had the opportunity to found that they haven't put forth any evidence other what's this what is this basis what is the statement based on it's based upon a uncorroborated statement made by a lay person at the trial that we were making them but there was no evidence of that they didn't bring a single shred of evidence to show that they had made the product like it or ever saw that in europe or in the united states there is no evidence of iraq there was no  if they had made the product or sold it six months before i don't before you applied for the patents that wouldn't have been validating it wouldn't i think i think at that point in time well grounded that there is testimony yes and when we ask them to corroborate it they were unable to and when they have the opportunity to corroborate it i think they they produce nothing so on that point we believe that was that was is the next thing the judge stewart says is there is evidence they suck the advice of counsel we don't know what and i guess and were informed that they could continue to sell their products everybody can then everybody can be informed that they can continue to sell the question is is there a did not produce anything for us in discovery or at the trial so all the court found in its earlier findings there was no written opinion there was a finding of that number twenty in the court's first fin was competent in these matters but i can't really go there because i don't know who it was so what we have if it's oral there can only be a couple of things that happened first that world opinion could have said well based upon the denial of the injunction in new infringed and they were reckless and they went forward knowing the in french if that world opinion was moral opinion was they didn't infringe and never told anybody what that basis what's they have opportunities in the seven summary judgment proceeding and they we still don't know what it was because they never presented it to us and apparently they didn't follow it ok so if there oral opinion was a case the patent was invalid again for they never presented it to us  or to the court so that doesn't make sense and if they're good if they're if the oral opinion was that it was valid and they went forward then they were dubiously reckless and so but there's no evidence in the opportunity to present new evidence not was that i mean did the judge say we're not going to do that i'm just going to rule you're going to do you have an oral argument in front of the judge you're with your new didn't accept it and you didn't ask when he said didn't accept every day i mean did you ask him he said no i don't think in the i don't recall of either party asking to supplement with additional information but the point here is if he says they relied on counsel what was but he recognized that because it was a legally insufficient basis to rely upon the denial of the preliminary injunction in the new york case that they had never presented for at any time but i guess i'm trying to figure out what the nothing to come forth with that defense even even up to the time of the summary judgment so i don't read it as being up there was only willful infringement after his decision and  i'd like to go into a couple of the just because other posts it just so you know you have about a minute left right and if you want to stand up a second time after mr coffey stands up you'd better save the time now but you don't have to  discretion but then he goes through in his brief at page twenty nine and he cites to judge stewart's decision and he cherry picks each of the individual factual determination that judge stewart looked that in denying enhanced damages for it but he said he's perfectly entitled to do that it's an abuse of discretion among other things if you rely on too much i'm using a shorthand on clearly erroneous findings so he's entitled to walk through that paragraph with the seven or eight lead against fourteen timings and say this was clearly a clear air this one is a clear error and you know why i won five our last five to three on the finding so i can show that for the five were wrong and so you got to do it again the question is does he have the goods to back up the argument that you know a bunch of those adverse findings were clearly erroneous i agree with you and our position is he doesn't have the goods and that reliance in octane and the case is decided consistent with that keep in mind that i know your honour's are familiar with that line of cases where this our supreme court determined that they eliminated clear convincing evidence on appeal and they posed on the trial judge the determination of whether enhanced damages were appropriate based upon the totality of the circumstances so my position with respect to abuse of discretion like agree with you completely wrong that he can go through an ally is that that's that's his prerogative but the issue is that my suggestion to the court is that it's not a when there was no written opinion and you know there was nothing in the record so how could you say that this was somehow an off and legitimate union of counsel that protect you because there was testimony of mr spock as a trial in your mind your side if it didn't present any evidence or argument for non infringement in the summary judgment of the attorney who represented poulan spot how coffin new york when the case was dismissed in the world was the attorney who was a patent attorney provided the opinion ok it was not in writing but it was provided to that then at that time we have concerns also with the elements that judge stewart went through your honor for instance what needs to be i think brought out is that the case in the eastern district of new york was dismissed on jurisdictional grounds in two thousand and six at which she'll didn't file complaint in utah until three years later two thousand and nine how can my client and that sort until it was the case transferred today it was transferred but then they filed a complaint and that's what activated the case and got it started so our position is they sat on their rights for three years they complained without dispute was filed in utah in two thousand and nine the dismissal in the eastern district of new york was in two thousand and six and so that case didn't even get started  our view your honour's that judge stuart abused his discretion because there is clearly evidence of copying when he says there was none there was evidence of harm there was evidence of concealment and his factors as we set forth in our briefs are either clearly erroneous or in your in judgment and with respect to the requests for damages from instant the fronts in place case clearly says the judge can based damages on