no corporate parent routers this morning there's no doubt there's no evidence no substantial evidence whatsoever upon which the jury's verdict of this court's denial of r j mold moshe's her will fifty motions  can can be affirmed and i'd like to just pop right into it there are two issues on infringement and one on damages that i'd like to discuss the first issue is that georgetown could not present any evidence mu substantial evidence of an actual act of infringement because very frankly you agreed that that hall and i've used the plate counting system on you he's tracking omaha and then demonstration which is a big part in this case but they collected six miles data for six miles of track no i assume you meant was in there is long yes it is and so that's why the omaha track that's referred to  i want to be sure that the reporter said that it's a different alleged use by georgetown than what the court found to be an actual act of infringement in this case in connection with the human demonstration but it was before the jury what was your honor the omaha testing the ninety one miles west of all the six miles of tested it yes you know that exhibit was before the jury and it was also before the jury that there was no evidence whatsoever that that data was process and the claim here requires lights and cameras which was the data collection part of it that holland had on its trucks and ran outside of omaha for six miles but there was no data colored no data processing done whether it's in connection with the test in omaha or yuma or anywhere else was it sent to  the data from all my heart that test data was sent to real vision for data validation purposes there is no evidence whatsoever that suggests that real vision actually processed it and even if there was some other words which i don't believe would be in any way correct to me that there was processing there was no evidence that it was processed for plate caught or plate misalignment which is exactly what the claim requires because there there is nothing that ever came back the farthest that that example goes is hollande collecting data and sending it off so if you look at the claim structure where there are elements a b and c how we did a and b we don't know processor that has a particular algorithm for processing that data to determine something about a railroad track and that particular something is the plate cut which was never the argument how do you avoid some tune in data and  know was a back and billing system for a telecommunications company and in order to get your billing information you either subscribe to the system and you did it through your computer you don't get my law for maybe a  subscriber of that of that service for instance and you subscribe by hitting enter on your computer and as soon as you did that that system operated continuously and automatically electrons were  flowing information was flowing there were no intervening acts there were no intervening actors who took control of the system all you had to do is put it in motion by hitting enter the same thing  we don't require that every step in the system be used but i don't i don't believe that you see every practice every step of the system every element of the system every you mean by a single party yes my pardner you know i'm asking because you're saying that you sent the data that you don't know if it was ever tested or not right and basis for the definition of abuse in these kinds of cases the user hit enter on his or her computer to get the billing system the billing information and then n t p a blackberry case  you know somebody type out a message and hit send and as soon as they did that the system itself operated as if it was supposed to as it was intended to there was nothing that could stop it there was we have data collection contracts contracts that refer to us holland collecting data not processing data if you're referring to the change order of the september twelfth change  the change order very specifically says that we are only collecting data at georgetown made a big point to try you agree that it constituted a binding sale of the infringing system absolutely not throw them in the change order we actually sold them nothing what that change order was as testified by mr matter was literally a placeholder much bigger contract that georgetown had with union pacific for all sorts of testing services not just anything related to a plate cutter plate misalignment they measured rail geometry and they measured railhead profile all sorts of different things so this was an addendum to that contract and it allowed union pacific to order certain additional services again not limited to real vision if it ever wanted it to run for up to six point nine million dollars worth of those services as it turned out during the entire time of that change or that union pacific never ordered a single one of those services so there was not when you said what did we sell them we give them the right to order or request holland to collect data and they were still is the evidence also shows real visions system was nowhere close to being operational which is why there is no data coming back which is why they never there were no reports that were ever put in and have it at trial showing any process data if there were reports showing process data it surely would have been in front of the jersey what was the anything to do with this technology they had contractors or contracts that had to do with this you know this technology being holland would collect data rail vision of it while you're looking if i may your honors just a little bit of explanation for all of this is a document from march twelfth of two thousand and thirteen why is that relevant that's relevant because it's almost a year after the human demonstration had helped install some data collection equipment on there so that you could on their own maybe run this on their track without having to use hollands trucks to do it the holland track star shows that they had some of necessary to deliver information to you people real vision is processing real vision is developing this and real vision is the one who's going to be providing information back home excuse me to you pick i pod i don't see how this hel again i'm sorry your honor is evidence that it can do certain things yes yes my response to that your honor would be it only did us that the evaluation process was incomplete i think correctly evaluations most important part of it all we were doing was collecting data like why are you sending data to a company who you claim doesn't even h data they evaluate it we build you you pay us halakhah all of those things who pays to contracts between parties none of those things have ever been used for control controls basically it here or there were so many things in that same exhibit the same exhibit ten seven five four it talks about how when real vision got the data there was nothing automatic there was nothing and media there was nothing that you  something and i was in holland it was rail vision and for a hundred miles of track at this point i do year after the alleged acts of infringement here year after they still had to spend forty two man hours manually working on th morning they please the court i'd like to emphasize two points during my time this morning the first is on the issue of infringement the second is on the issue of damages and central to each of these two points is that the substantial evidence standard the standard of review of the flies here  this is a case involving a jury verdict in this court as well familiar fifth circuit law which applies here is especially deferential to juries infringement findings in fact it's so deferential to juries findings that to prevail on this appeal all it needs to demonstrate that the evidence so during that particular portion which i can't read in open court mr mataram holland representative specifically testified testifies that holland collected data for customers that are named in their sent the data to the rail vision company for processing to see the results of that processing back and gave that information to customers there's a more complete explanation of all the other acts of infringement and mr matter in testimony and pages eleven thirty two through eleven forty five you have a bargain number that's what you human demonstration is a court correctly held was also an infringing use the problem that poland has is that is the only use that it refers to in its briefing it completely ignores all the other evidence of homes infringing uses which we've summarized on pages thirty six and thirty seven of our brief turning to your question your honor about the omaha demonstration i will point out that the argument this morning that was simply collected for data validation purposes of believe is what i heard as a brand new argument that we've never heard that today that was never briefed that certainly wasn't brought to the attention of the trial court and just like the human demonstration arguments that holland is making and that george tenet allegedly did prove that that data was processed that's a brand new argument as well these are the types of arguments that should have been brought to the court's attention before the case was submitted to a jury because holland waive them otherwise that i've given georgetown an opportunity to the extent that there were any deficiencies in the evidence and we don't believe there were to cure any of those defects but by not bringing these arguments to the attention the trial court we had no such opportunity so we submit that the arguments about the human processing and this new argument this morning about the processing the way john are in addition to the testimony from mr matter and there is substantial evidence beyond beyond out of the record to show holland's infringing uses you'll find articles in the record showing that holland was advertising its infringing technology specifically its real vision plate cutting technology those can be found at pages one zero nine two zero three two three of the appendix and it's volume ten there was also an not infringe because aging process are they being practiced the last element in that process the data yes your honor and i would direct the court's attention to this until you in case we believe that the portion of sent two million dealing with the customer or the subscriber i should say is directly on point in that case just like the subscriber in that case who put the infringing system into use by signing up for monthly billing from the telecommunications company it didn't matter that the backend processing in that case was performed offsider on another computer using different servers the same is true in this case it doesn't matter that the processing is taking place in the u k it doesn't matter that the data has to be shipped there that it takes a certain amount of time for that data to get there the point is is that george tempers that it's substantial evidence that holland was benefiting controlling what existed on the story given that process she never took well i would again refer the court to the section of testimony that we cited there on page eleven thirty of three on volume two in that particular portion of testimony mr madison owens representative testifies that simply collecting data by itself or customers is not helpful he testified that you quote can't do anything with that data until it's process so there's more than sufficient evidence for a jury to infer that all of the data for that hole and collected from all these demonstrations and uses was processed by the rail vision company that's the entire point of the arrangement the one had with every other company on the issue of damages your honor that district court also got it right in determining that georgetown presented sufficient evidence and substantial evidence on each of the four panda factors only two of those factors are in dispute in this case the first factor on consumer demand  factor on the calculation of lost profits respectfully i don't think that there's any dispute here about demand for the patented invention georgetown elicited substantial testimony which will think the evidence of lost profits in the actual  time tracked that hole and ended up getting the union pacific and dr hugo own specifically talked about the evidence that he considered and in relation to the human demonstration of the change order and said that he did not limit his opinions to those particular ac relevant industry the market he analyzed georgetown's contracts that already had with four out of the seven class one railroad companies and the analyze the terms of those he had allies the terms of the proposals that georgetown sent to union pacific shortly before union pacific awarded the wor  was for work on trucks and did not have the plate cutting off i don't think there's any record support for that your honor and the other point that i want to make sure is as holland spends considerable time arguing that georgetown is entitled to loss profits simply because holland allegedly didn't make any revenue under exchange or contract if you knew this if the problem with that is we've explained in our briefing is that the focus is the inquiry entire entirely away from georgetown the patent o profits the georgetown's expert testified about it i realize that many cases not your agreement is they had more so because of the preliminary injunction that went into effect yes your honor that is true that there were no sales after the preliminary injunction went into effect and what the preliminary injunction did for georgetown is that it ensure that your child wouldn't suffer any economic harm that was impossible to calculate and ensure that georgetown for example was protected from holland using its infringing technology to strengthen its business relationship with speculative we don't believe it speculate at all your honor in fact we would go back to pan to it and point out that because georgetown satisfied each of those factors including the calculation of lost profits that georgetown met its prima facia burden of satisfying to it and that then shifted the burden to holland to demonstrate that calculation was was not reasonable and the problem holland has on the calculation is that it presented no alternative evidence or an alternative calculation to the jury instead what it did is it simply challenge the sufficiency of georgetown's evidence of cause ation it again just to finish up my point on the first panda it factor on consumer demand again there is substantial evidence in the record that consumers were demanding georgetown's patented technology its war technology in holland stipulated the trials of that technology practices claim it union pacific and it talks about testing six miles of track talk about the problems they were having with the lasers and the likes they were just trying to get the document reach for itself really use this claim requires three elements and the third one is really important it's the process and to say only that mr madam testified to this which isn't linked to a single particular project a single or particular customer these were prophetic statements that mr matter implied but well yes in a relationship with real vision we would like to have them process the data and send it back to our customers that's what we're trying to do but there if there was really processed data if there was really reports showing what pis were graded in what way it would have been in front of the jury they don't have union pacific the one customer here that the aligned on everything for with respect to their their damages claim and the infringement case we don't see any data processed by real vision that is fatal absolutely fatal to them they could blocks the talk about the specific evidence of infringement it can't it in that case or there were in ways to infringe ways not to infringe in the court very clearly said you have to have express evidence of direct infringement it can't be these kind of pie in the sky statement that somebody may have have done it for georgetown in that change order at that moment union pacific still would have ordered zero and your owners right it was an obvious loser contract and what do we know about this whole process there is not if you notice if it wanted to they could have walked over to georgetown who they also had a preexisting relationship with a set forth in the record with a some other parts of their business so we want to provide this whether before or after the preliminary injunction and it simply didn't happen  that's that's all i have your thank you very much he very much