decoupling or independently controlling the magnitude frequency components of the tactile by variation sensations the specification actually defines tactile sensations and its definition is highly relevant to our position it sets the feeling perceived by a user when you're sensing body part experiences by gratian induced wired by rote tactile unit based on the evidence the undisputed evidence in this case the underlying vibrations in the cell any play station do not under that testimony there the play station  the feeling of the vibration the underlying vibration that are not that are couple yes your honor because the expert witness of some of immersion said that the user feels the playstation vibration says those places that the vibrations are within the hertz range ten to sixty that a human would feel that when it is said that those vibrations are not a couple they are not  and that was emergence witness that we emerge an expert witness and is there any contradictory of any testimony on the other side note that is testimony of yes ok can i ask a question about this one issue i'm sorry to rush you but i know we're limited in time you propose as i understand it to know both standard of review even though you acknowledge that there's no dispute over the claim construction in your great brief what you say is this is a legal argument that rests on proper client construction even though you're not challenging the claim construction and i don't i don't think you cited any cases for this notion i wonder if you have any the answer to that is and let me clarify our position our position is instruction is it proper to ignore the underlying vibrations to that extent it is a you know question of why and only to that extent but should one of the parties of call this dish matter to the attention of the trial court the trial court at the initial stage of the mark meant i mean isn't that therefore because and in your view one of the world it is really a matter of claim construction and why this issue wasn't resolved in the context of the market your it was not resolved there's another issue which is not resolved and that is the rotating issue the court declined to interpret the answer is this particular matter was not interpreted by the district court other than to say that the court agreed with  immersion in terms that looks to the dominant vibrations and in fact is there's no discussion with the coupling at all in the chords fifty b decision the answer is that this the damages the verdict of eighty two million just when the district court at the end of the day calculates that to be a one point three seven percent or whatever welty is that a number or a variation that was presented to the jury or was the district court just trying to figure out in hindsight how they could have come up with that number the lab the district court took the eighty two million dollars it's a total total lie in the sales of what it felt on with your your one of the things you say in your brief is if we were to reverse the klan claim to thirteen but affirm on three thirty three's we would still you are advocating that we would still have to send it back for a new trial yes what issue is are the i just want to be clear if there were indeed hypothetically a new trial would the only issues to be resolved then have to be a recalculation of damages based on the different dates of the patent or what other issues would be when you're not asking that the jury then would have to then go back and revisit the issues under the law were not there basically aside from the  as right separate issue in which case we would suggest if the court reversed what the district court did there should be an entire trial and that if they suddenly came into the case but aside from that we're only asking for a new trial on right maybe it's not we did two things or in the brief we said we think the injunction only enjoying systems and not components and we asked the court to clarify that because the district court you some language and immersion is suggesting in support of that language that injunction should apply its components and not against the system and it will twenty eight j statement would be filed to the court he basically said the language that the court used in entering the injunction was that the general rule is that injunction shall wish that's free each day statement and all we asked the court to do was if there is a remand and it's appropriate to look at the injunction to just instruct the court to revisit it we're not asking this court to revisit it we're asking the district courts revisit in the first instance but on the second point leaving aside the e p a question now would it be a matter that's right for us given that i mean at best there might the problem has to be perfectly clear and we said we're concerned we can't meet that standard and therefore it is right given the standard review that would take place in contempt proceedings now's the time to do it  on country are a testament of immersions own witnesses and given the definition of tactile sensations that the underlying vibrations must be considered it's clear they're not decoupled and therefore we don't satisfy this claim  is position immersion says you need to look at the series of impulse you really don't look at the underlying vibrations even though they are indisputably there we say that's not supported by the claim language frequency components of being a vibration generated by an eccentric math based by protecting that they say the same thing at the end of that same one paragraph in column sixteen they say nothing about may be changed independently of the amplitude by modulating the power to the vibe attack to unit or variable frequency that's totally consistent with considering underlying vibrations is totally consistent with considering what they argue series of vibrations doesn't really prove a thing so the basic the basic bottom line is that the claim language itself really governs here it says the control over the magnitude in frequen they say i disagree there is issue because and for two reasons and let me start with the second reason if you look at the origin of claim seven the clearest prosecution history establishes that we i submit are right the prosecution history shows that patent claims that an evolved from application claim ten an application claim one which worked which ultimately were combined and in combining them the applicant said i am a adopted merged claim one into current ten and said we're adopting all limitations of time one they were basically saying each unit has these limitations and in fact if you look at the language of crying seven the very last two words are said vibration and the only antecedent for that is vibrations up in the upper part of the coin and each one of those limitations talk about each of said actua performing the function you can't merge the two and in fact that if you look at if you look at one of the coins you see playing fourteen of the three trees that you actually see they use the word grati court of california which doesn't seem to which you don't include and my for the question about that is whether there is or there isn't and i can answer that whether or not you think that given the court's dismissal without prejudice for your claims of breach of contract i think an unjust enrichment if you're preclude it from going to state court if you're not up there so your artistic support actually was a result of the court's dismissal without prejudice she said he could refile contracts like if we could lead a legend specifically related to compulsory license or games as a separate record contract action we had an internal discussion about that decided that there was no federal subject matter front of the will is currently stayed pending the resolution of this appeal but if you were to pursue the s and state court is that your view that you're sort of prejudiced by some of the conclusions reached by the district court in this case with regard to the interpretation of license absolutely or are right because we believe that we are in fact an exclusive licensee of these patents who should have had hopefully their standing and a right to a share of the judgment as age restricted games what judge will can actually say we could create with something much narrower which is a claim only on the going forward compulsory license two games alone but you're not contending because there's a dispute back and forth in the briefs between you all and immersion and that you're the it seems to me those cases deal with when the exclusive licensee tries to bring a case on its own and in those cases our court says you could bring kate says you could bring a case is the post playing to my right about that part and to that i meant my problem is does that necessarily mean that they have a right to join as a copeland and an action brought by the patent because that seems to be in to me to be a sort of step missing in the cases i think the answer is yes for two reasons first there are two cases that i think make that clear one is intellectual property development versus the vision which is cited in our groups quote an exclusive licensee having fewer than all substantial rights of remaining action because that's what judge will instructed us to do with the with the without prejudice portion this goes for that's related i'm paid to eleven of your great grief you ask for a first of all of the dismissal of claims even if there's no standing interaction of software and hardware there's no way to have hacked it technology that is software that doesn't interact with hardware or vice versa the software has to actually move something physically in order for it to work acknowledged in letters to i l c that the two thirteen and a three three three patents were covered within the scope of the software license agreement we asked immersion what passed they go forward in force in our area of  and they said of the list of patents that included the two thirteen and three thirty three they did that this is not part of the record that's correct you are that letter is not part of the record because of the procedural posture on which this case arrives this case is governed by notice we did we pledge that we had exclusive rights into thirteen and three thirty three we didn't plead every piece of evidence in support of that conclusion that we think that it is is certainly supportive of that conclusion we think age restricted video games standing alone having made its money having gotten its rights by representing to the court that that your software those video games were part were a tribute to thirteen a three thirty three pats version should not now be hurt to turn around and say they're not software they're not in the loan are not part of that and therefore that their rights are here and indeed in the jury verdict form when there is a listing of all these games some of those games are the software that their software as part of their is a system that involves software we didn't have all substantial rights but the district court was wrong to think that we needed all substantial rights in a circumstance in which immersion the patsy was already part of the suit we think belongs to the  necessary party we think we're entitled to a share of the judgment and that's what we have but just on that point i think you covered it before you don't want my understanding is assuming the cases affirm the underlying infringement you want standing solely for damages you don't also want to with that you should have been able to present that that's correct we we we will accept the jury's verdict and the district courts work as long as we get to share the remedies  did not want to be doing what you are we were not informed of the suit by immersion and so after we found out about you from public sources very late in the game in april of two thousand and four a couple months before motion to place a couple of weeks before the jury trial we sent a letter to court say your are we think it's too late for us to effectively participate in that jury trial we think the best thing for you to do is just carve the age of sixty games out of the trial and go ahead with the trial of the rest of the game the decision for decided not to do that he held a trial the whole thing that i think it would not was not the ideal outcome from a procedural perspective at the time but given that it happened and given the procedural posture that describe what sony's argument is because there is a huge part of it with which we know you agree but we must agree that is the fall they are saying in essence that at least under some circumstances a user can feel someone under the law library we agree with that but let me explain the physics of what is involved in both patents are eccentric rotating manufacturer they are inexpensive motor they've been occurring a long time they have a share they have a mass attached to the end of the eccentric it's a lot sack so if i use my car to simulate that here is a motor with a low frequency it's making a low number of rotations per unit of tar and cause slow it down the magnitude increases increase the frequency one because the magnitude decrease frequency you decrease the magnitude those are the laws of physics that's existed for ever since northwestern university who specializes in this area of haptics the science of sensations so as well here you can never topple the underlying vibrations that's just the visit so if you look at the first fall where it's pointed collateral frequency you'll see that that frequency has a certain magnitude but what they do with your feelings is that first sensation and then the second sensation and you notice as we go left or right the magnitude of what's being felt by the user goes down the longer they get to the cl keeping in mind there we are green and dr colgate said yes if user attends to feeling things are back focuses on it then yes under certain circumstances he or she may galloping into the distance and you if you can use your is usually the magnitude decreases as the frequency of the click of the club remains the same now let's say even in the last scene ninety percent of the vibrations were cock mike that last scene still free and as long as the user gets desired tactile sensations from the user's point of view that are is exactly the following question sunny is arguing that you got a theory the frequency of each of the motor of a plurality of the motors two three four whatever the number is you've got to hear them all and if you don't producing what is considered to be a complex character house and sation that infringes so if you examine carefully the district court's discussion it provides the overall context now there's another argument mentioned by some this morning and mentioned in spree and has and do with prosecution history there was call application clay cam and indeed mobile site to be exact he number where you can see it in the record it's page eight one zero nine are claiming one in the application is a one unit claim and says here is one doesn't say anything beyond that so what are the limitations including what one unit and very differences and we agree that claim seven requires at least one unit with varying the frequency as one line of fifty two and i'm using the line numbers from the two one three factors prelim difference between the two packs it goes on to describe examples of complex tactile sensations and here's one of the preferred embodiments example five which is a life of calm three club vibrating two or more vibrant tactical units your four means you're not berating the frequency because in order to have a new four and a to profile as i explained the outset because of the physics you hold the frequency constant so it's the same  same you're holding the frequency to uniform frequency so not only this claim seven itself looking at the language contemplate that but the specification in describing one of its preferred  advantage of fester for my case and the third circuit in this decision says no you don't get that your two level should have a security now there is a factual difference here which is the certification was applied the e bay question with pending while this case was before the district court then it was at these talents were required to raise that with the district judge in order to preserve it is that i think i would say differently  the laboratories case dozens of psi precisely the question that is before this court as a practical matter i could see in a rule that would say if you didn't raise it gone whether or not what the proper scope with the injunction is is it your view that that issue that question is appropriate here and right for review here i don't think there's any need to the earlier discussion had to do with  i think it would end up being a virus or your opinion without knowing what the content proceedings about what the allegedly infringing devices we would be just rewriting instead their point is that any document including an injunction order can always be made more specific by adding another twenty five or fifty pages i don't know that that happens is this also the time to ask the ask you questions about the i f l l the well i mean i particular pacts and unless as an example someone with not exclusive rights could wear that clothing but but the damage it is correct is that not that the damages included but the substance of their argument is wrong those are adult content these are games that teenagers can buy put that aside for the moment the answer is yes damages included some software games for which they're claiming rights but they of the subject matter and precise appeal that's before this court mr langley described the state actually it was removed or that it's been stay there may be further action in connection what that action is i can hypothetically conjure up some breach of contract actions that might survive but many others if it's based on the issues that are before this court that's been disposed of that's been addressed by everything in order right regimes coattails for everything except the money at the very last but i can see why your other hypothetical decisions that ha is produces equilibration and each of the actuators actually produce the results and that is made absolutely clear by the prosecution history where a claim one applied the same terms the same called underlying vibrations those underlying vibrations are underlined every pulse and the citations i gave you before for the testimony immersions expert witness actually spell it out that you will feel these are gracious particularly at one zero nine five eight quote the measurements that i wish that i show the vibration are precisely indicative of what someone would feel what mr choose talking about is a simulated a simulated response not the actual response the actual response is what you get in every case and that's what a user would feel and the definition exactly what they did in the colony fifteen sixteen examples they fill up the century mass with the flow it to make it heavier they expand the radius of generation that mastic changing the physics we're not doing an art emergence development rules and other software used to provide active capabilities to websites web pages and any other forms of technology now reading those two in conjunction with each other i think the only way to understand the agreement is that we are entitled to exclusivity with respect to the software components of a system but not with respect to the hardware components of this that doesn't mean we have no right it doesn't mean we don't have all the right things but really we have some of