guilty but i am and with my partner lauren fleck trial record now i'd like to focus our argument time today on three errors can i be sure you get into that so i won't have to interrupt you i'm assuming you after the appeal we just rather there's still we're confirming we're getting rid of one of the patents here that the subject of damages but i'm assuming that everybody has assumed they all rise and fall together and so even though if one patent is nother real exam that's being briefed to the court right now where that path for the pipeline that will come to the court so it's on its way but to answer your question precisely no one is contesting the that well great across the patent it would probably have to be a remained for determination of the number of units to which it applied because there are different products at different periods of time that might have infringed the different claims and so i think that's i'm trying to be as precise as they can get to sort of distinguish between rate to which no one can test across the fence and the question of the units to which they apply because they will differ by time period but i don't understand that i don't understand and you didn't make that or your priest in your it's clearly  rematch we did not address the question i don't think any of us did of what happens if you take the collection of these three appeals that you've heard today and there's a friday of different possible results if the first two no what we said is that if the damage is around correct they would have to be remanded for determination the question of how these work together remember at the time of the briefing some of these we do know we're all going to be here on the same day ok and  second mr weinstein second fast that damages and the question of whether he has apportioned them or whatever you call what he's done whether he's given you a reliable and  robust damages theory that it should have been admissible and third the question of this admissibility of a one point three billion dollar number which is supposedly it's a design around number but a number that was not used in the damages computation and really was used to in his georgia pacific analysis was deborah made a basis for his opinion the only thing he did is put it out there because it was a check or a uniloc tacked on his three hundred million dollar number the second as he's not the person another one point three billion dollar number so it came in through einstein it came into weinstein just saying it and then on cross saying it comes from mr jones and then i think the most important thing here i had to go to your question about the instruction and what was done with it it's opened on the number for next asked every technical expert about the design around it closed on it this jury was allowed to ask questions the witnesses there was only one question asked  entire trial and that question was to our technical expert and it was why did apple design around if the court looks at the pages that follow the answer is a technical one and then for next fits often does a cross examination that goes to in printer yet but let's assume so let's assume though that the judge issued a period of instruction and there are plenty of cases where even if weeks except we think are saying we can say yeah and those things happen and it was clear instruction going to the infringement what confuses me is that instruction says it's not for infringement it's for damages and now burnett it's just telling us that they didn't use it for damages so i mean the jury hearing that instruction and the judge is telling me it's not from frenchmen different damages how is anybody arguing that would have been used for damages i thought the argument was that it was it means for the arguments but you're correct i mean we have we said a number purpose his analysis which is the six licenses and so that he said and that's that it's not us he's not using it and so at the end of the day the argument that if you come in was that it was relevant to damages it was not relevant to out which we did to try to keep it limited which we did but if you think about the fact that it's used as an opening i don't infringement it's use in the evidence with every technical just calculation because it happens to be precisely the number of three hundred two million eccentric cetra true dr weinstein was giving for the use of the licenses so whatever you say there's certainly sufficient record evidence to support the tweeter the jury got that number which include anything about the one point three billion so even if we're troubled about the one point three billion can't we be pretty secure where the jury came up with that's number it has nothing to do with the answer your honor is there to answer your question the first is you can be secure as to where they got their number you cannot be secure that the one point three billion had no basis has nothing to do with their accepting that number were nothing to do something for what purpose you argue i think unless i'm mistaken that you were worried they used that number to conclude that you conceded infringement right isn't that what you've argued i mean we said two things we said that that was used in front remember this is so you so so one of the aspects of why you think this number being introduced to the jury is prejudicial is you think it will impact their infringements germination correct ok so the judge gave a curative instruction plea even if it were just means for damages of still improper yes and yes and that's what i was trying to answer to your question where did you make that it's cross i can't but i don't have off the top of my head i can get for you but we made the argument that for your rebuttal now it's now it's in our opening brief and our opening brief we said this is one point three billion dollars it was curious to me to go to the second half of my answer because first question if i could finish the thought our number was ten cents a unit to microsoft license their number our number would have come to about thirty million dollars or so i think that's the microsoft i guess judge purposefully his the jury came up with exactly the number that followed the damages  dynamics that availability of not infringing alternatives in the cost thereof is relevant to a dam it's absolutely one hundred percent your honor it's the right held that this kind of number is relevant the district court issued a curative instruction saying jury don't use it for infringement we have a jury determination of damages which maps identically to an expert's articulation of how did she come to which didn't even use this number i'm at a loss i mean you're not prejudice earlier today  one of your earlier cases i'm at a loss for how you can convince me that there is an abuse of discretion here that's what you have to convince me of but that is your honor respectfully the place i would disagree with the  you anytime anything is introduced it turns out not to be utilized by the expert in assessing the georgia pacific factors it's absolutely off the table it should come into evidence it should not come into evidence and under  damage number which the court said was on a portion we go back down with very express instructions from this court in the opinion of what should be done to apportion and instead we just talked basically for the six and licenses t and comparability prices and it seems to me you're some moving to damages and away from it seems to me most of your arguments and maybe they're very good if i had been on the jury maybe i would have walked them which is these licenses were not comparable enough to be using the numbers in those licenses for this case but the jury but isn't that a question for the jury and the jury had that question and obviously  there was without a doubt some of the issues that go to conference already have licenses and some of the issues that go to the question of whether invoke force and overlap not so much because they always overlap but because given the specific methodology  licenses are the same type of licenses you addressed and for next one they are running royalty rates on the full price of the product everything microsoft has the only lump sum everything else is different i understand how does this go to my question which maybe i'm just not understanding is your objection to the individual licenses having is your portion i want to know what your question meant if the answer is if your honor is this which is involve different products different periods of time but most importantly how we look at not a comparability issue i'm still trying to get to the heart of your board it's actually a separate issue so there are three issues where you think about the license and the question of whether there admissible you rule then for next one but they are admissible that doesn't make them reliable for any damage analysis and the best proof of that is you found a new be admissible infor the licenses have to be comparable for the reason you know comparable enough for the reasons you're using them and then you have to use them for a reason that is just plain and reliable what we have here is we have a set of licenses that are not comparable their settlement agreements they are small amount that you can see since you're not saying though that they should have been excluded you're just saying as the jury should have given them less weight because of those arguments not so on that to where i started in which is isn't that up to the jury no your honor i threw the first half of what you said is we're saying that these licenses don't they're not sufficiently comparable to be comparable but they're also not sufficient to support the analysis variation between the largest license the ones closest to apple which is microsoft and the number the he came up with is a magnitude the variation between the lowest to the highest is to  honor if that were true for next one would have come out differently i mean you took the same issues the same not a benefit for the six licenses are the same you took the same licenses the panel decided that they were admissible one when you get to the bulk of the opinion that's where you're talking about the bespoke licenses but their mere fact licenses were admissible didn't make any of the theories sufficiently reliable to go to the jury so that's where i'm trying to answer your question as you know doubt bear in weight overlap obviously and where the precise line is a matter of judgement but in the first case it was decided that it was not a matter of weight it was an issue of the reliability of the analysis the same is true here i mean if i could the panel said mr weinstein you didn't a fortune but we want you to apportion we get back committed the licenses yes yeah because the lies and the licenses are in it it's done the question is to tell us how you you apportion based upon these licenses and the answer is i can't tell you this wasn't the first if you've got somebody whose license let's assume for medics here had license sampson for sixty seconds you can use that as a comparable thing it doesn't matter whether or not we don't we're not going to do an analysis about the printed exam licenses were it possible but they had not been used in any of the three theories to value the contribution to patent products so the answer to your question is the licenses  n and the first case in this case for the next two say licenses are admitted but they're admissible for the purpose of valuing the pet now ok so i want basis as i said that just brings me back to where i started my sorry i really have listen to everything you've said but it's just it's really your argument this is what the trial is about face a these are comparable licenses and we're going to use them you get to make a whole case saying making the arguments you've made here look at these numbers there's expert who's asked the question how did you portray the can't say that in this as page twenty one is the analysis the question to this court is and if you go back to the kind of aside how we characterize it i use a portion in part because that's the focus of her next one look at this chart on page twenty one and the question is and it's case where you're claiming hundreds of millions of dollars of damages is it reliable to take licenses that have some similarities some differences and merely divide the royalties paid by the total units and taken on a weighted average that is not reliable you  forever to find a peer reviewed journal and find something else that said that's a reliable way to compute damages and in for next one at the end of the opinion the panel's opinion said here's what you have to do five zero four and two eleven patents cisco didn't challenge a number of the claims that support the face time project and those claims were specifically one to five and twenty seven to five a four pound so if the court were to hold that apple  that way it's quite clear that it's time projects that we're doing this and i think the parties agreed and under cadillac leena lighting it just doesn't matter how many patents are infringed what matters is that there is infringement and so i think the answer that question is i'm sure the answer the question is even if the court were to uphold cisco's challenge there is or that goes back to the board and the patent claims are canceled that this is not going to have an effect on the verdict so long as we reach final judgment without anything else happening and that's why i want to talk about interest so i want to talk about whether anything else should happen and i thought i should start with apportionment or actually maybe her perhaps with the cost of the design around the cost of the not infringing alternative i think it's important that it was used for the specific and limited and entirely proper purpose and that was to show that there really wasn't an this is the trial testimony of mr weinstein correct that's exactly what he said and it's so he did concede that he didn't use in his calculation in a mathematical sense didn't take a percentage of the one point three billion but he used it to inform the nature of the  cost of this design around using face time through relays would only be thirty seven million dollars and they say to him and says and you testified yesterday that the cost of a not infringing alternative in certain circumstances can provide a cap or limit to damages correct sure that's what you testified yesterday right i did so this isn't entirely relevant and proper and the jury instructions themselves identify non infringing alternative as relevant to damages the jury was entitled to know that it just was not only kind rejection and reject the notion that apple could just easily design around and rely on relays and that's actually very important because in and what you turn to page thirty one of our brief we have a diagram that shows how this works but one of the things that is when you have face time is that they have sort of a backup system so if you can't set out that direct connection which is the red line in the middle of the diagram figure five it will go to a really server anon infringing system because it's not a direct connection and the jury knew that five to ten percent the time the direct connection going to fail and you're going to go to the relay server and so the jury already knows that this really server anon infringing mechanism is a potential non infringing alternative and so we need to tell the jury you can't do that and design around the patent one hundred percent of the time because it's going to be worse quality and we emphasize the dropped calls and the like yes we have the answer and because it costs a lot and that was the way it was used repeatedly the design around the idea of  would cost a lot and i think to emphasize that we've never asked never asked for a course in the one point three billion it was brought up only in that context and in fact it wasn't even used in closing if you look at the close in the closing mention if so then for an eighteen month piercing at twenty one of the period it was fifty one million dollars but it didn't work very well even at fifty one million dollars that eighteen month period and i think if you're going to design a phone system that stable and robust and works you design for cost fifty one mean or yes that number was before the jury as well that's correct and this isn't there's an objection to one point three billion dollar number it's based on the fact that it was relied on a ten thousand calls per second peak capacity estimate  wasn't our estimate that came from the testimony of an apple engineer he testified ten thousand calls per second and it's not a unreasonable number if you think about there's eighty million apple users if and back in two thousand and nine it could well be that apple's face time was going to replace this court actually previously upheld the admission of four of the six licenses issued there and apple never identifies anything about the two additional licenses that are different i don't think there's any bits of help and  presented to the jury which is precisely point you're making now allowing the jury to fully about it the relevance the license is no more is required in the circumstances what they are the same and no different licenses here as there but even setting outside the licenses were actually  what you what you're asking for is related to the value added to the device by the patents exactly and i think and then the expert did this because each of the devices he looked up excluded anything that was for example a server really equally as relevant as maybe microsoft that at least have the same economies of scale that apple might so microsoft as a litigator settlement well every one of the licenses in the prior case and vernetta one was a litigation settlement and this of discretion these are all arguments that go to way and the jury heard them all and frankly i don't think that they would basically what microsoft's argument is here is look we having multifunction device and our multifunction device and values this secure set up technique less than our users value it less than for example a two hundred fifty dollars white phone that's a fair argument to make to a jury but it's not something that excludes all of the other licenses for the same technology that uses it in the would really the question of the jury is what is the value added by the kids devices and apple's problem not exactly very little to do with all of this other stuff well it has a lot to do with it because those products those voi phones use the same product in that the same technique the same patented technology in the same way they use it to a static easily establish a secure communications link and that so if your communications link is the same thing that apple is using on its files and in fact if there's an argument of the jury about who values this easy way of setting up secure communication links more apple's phones or a flip phone on the table it's going to be apple's phones because the apple phone is moving from network to network from nat to nat from place to place and it's going to have to constantly go through and set up the secure communications links and it's on the on the run for the white phone may not have to do that this is the size of the type of argument microsoft could make and did make to the jury but the licenses are the district did not use its discretion when they're comparable and he didn't abuse of discretion allowing mr weinstein to use them and the jury was simply persuaded that these were comparable licens and that this was an appropriate role so i turned for a moment to issue of one thing i should point out that is i know that the work the results of the first case and the results in this case in terms of the world you are actually quite different because you have to take the number of units into account the first case was three hundred sixty eight million dollars on approximately one hundred seventy five million units this case was three hundred two million dollars about twenty percent less on two hundred fifty two million units about fifty percent more units so if the court has a new question about whether or not it decisions on how the world is or calculate in methodology is what's the difference they make a difference to me to think difference here if i can turn very quickly if you turn to something he didn't cover you allow him to talk about it if you sit down you don't so i think that the court is explicit asking me if there's the if then if the court doesn't have any other questions we'd be happy to see the remaining time for the fourth thank you very reexamined covers the same claims of the two eleven patent that were an issue with the court so there actually are the same answer one would have an effect on the other and then the question of after that of what i'm sorry i don't understand he stood up here and said in a cisco reads am there were a number of claims that are not included that are in the district court litigation that are not included in this is scary yeah i understand what you said correctly just yet and i guess you know please today which was or question was limited as i understood it to if we kick the ball really exams and this is going to be exams remaining how does that affect the damages i thought that i quote litigation you're saying it doesn't affect it at of your opinion which you say is in the end for next to it half and then you tell vernet x what it should do to sustain a damage claim of this magnitude they didn't do that if they analysis it to page twenty if it were reliable methodology why would the results vary by tonight the answer your honor is to your question which is there is this place where comparability and his analysis overlap and the fact that only one of them is even ar on the one point three billion in some sense you can't have it you shouldn't have it both ways if you really can do this math and come up with a dollar twenty unit on the un weighted average and say to do your best to deal with it in front of the jury but it doesn't mean that you to waive your right to demonstrate that should have been excluded in the first instance we're coming back but a judge cross question to the first  question here really is if you have this one point three billion dollar number it's not used by mr weinstein to compute three hundred million dollars number which is used during the evidence to basically  so if it not only crept over it basically basically just put out a wave a tsunami over the infringing question second is the cut the discussion is having with judge moore putting that big number out that this not opening thank you we think