testing that would be required to satisfy the critical limitation and victoria had all the materials required to test the actual product accused of infringement but it did not and it offered no evidence of dispersion for the purposes of demonstrating the improved both sides kind of dodged actually testing the product i recognize that the other side has the burden of proof on infringement but neither side it seems like  quickly st the dispersion limitation and the dispersion limitations this is then i will turn quickly if i have time to two issues on damages one that repeated attempts to minimize the damage only asserted claim they had two critical limitations one is composite active particles but there was an additional limitation separate limitation with separate requirements which is critical and that is that that composite of active particle become positive effects of particles pardon me promotes the dispersion of composite active particles the dispersion limitation district court construed that claim limitation specifically neither victoria nor g s k disputes that claim construction and that claim construction required proof of increased dispersion of the active material as compared to the composition the question therefore and this is where the bridge to some extent will like ships passing in the night the question was not whether coating a particle with magnesium stary can promote dispersion in the abstract and ninety one patent as to think it has the composite active particles but it has the additional limitation the incremental innovation that requires that that coating have a functional effect and that functional effect is to increase dispersion beyond that achieved by coating lactose magnesium citrate so that is why when i said earlier that there are two limitations composite active particles and improve dispersion those who limitations have to be considered separately they each required construction separately and critically important each report proved separately and they did in part because all of the technical folks on both sides agreed that this dry inhalation of powders for use in treating humans and patients were known to be complex and unpredictable factors inventor did provide samples of the commercial products to victoria it's clear that victoria had the equipment necessary to do that testing and the record is clear that the district court  sure is the sole active ingredient in the increase product and one of the two active ingredients in the normal product despite the need for testing under the court's claim construction there is no dispersion data at all from the study to anything else i composite active particles containing human x and again this is a place where i think the record is relatively clear the different compounds with a different chemical structure with a different formula with different properties and different if we look at them closely they really fall into three categories the st is a set of back in to talk about the formation of composite active particles without any suggestion that they increase dispersi react differently with glasgow than the other active ingredients secondly it's just i'm sorry to interrupt again no no no no problem i i wanted to make sure i understood where in your set of of different categories of documents i'm focused really on the documents other than the study to document does would you put plaintiff's exhibit thirty five and i direct your attention in product no testing of you mac there are problems which we've described in detail with the study to testing and stated simply in part because i'm close to the end of my time the comparison of blend five to blend six just doesn't satisfy the district court's admonition that you have to control for all variables that could could contribute to dispersion and five had the plant so the single piece of evidence that's relied upon says in black and white that the comparisons that are being drawn are not ones that could be drawn because import content uniformity and when you combine that with the fact that blend five and blend six were made with different equipment in a different way in different formulations been choose products there is no substantial evidence for argument for a new trial assume my understanding is i mean the number came in your side didn't object to the domestic number and it was used in the context of the comparable license which at least the jury called out on several occasions his concern about this pennies on the dollar so assuming that's true and that's what we're left with it's hard for me to see why that's enough or  the contention here is that there is a comparable license and for that comparable license apportionment is built into the comparable license in that context the you can use it the ten references that we have cited to your honor we're not and i'm quoting the district court we're not focused on proving the value of the patent vention but rather on advancing the pennies on the dollar argument that picture so i think if you take this court's decisions on comparable licenses built in apportionment yes the total revenues are going to go in but they go in for that purpose they don't go in as the  st line of the opening they don't go in in cross examining every witness who testifies and then they certainly don't go in to make it just court said depending on the dollar argument this is one of those rare circumstances where we don't have to guess at what the purpose was because it's a nine hundred and sixty one counsel said when victoria with admonished me a question i'm sorry to interrupt but the question isn't what the purpose was the question is that just a court judgment that these statements were not prejudicial to require a new trial and your honor i can't for it this way i hope precisely the district court made findings and revenue bases form comparable licenses the total revenues are going to come in in many cases it can be we suggest that that justifies the type  contain magnesium steer a coded lactose and magnesium stearate coated active nothing more and the jury heard undisputed evidence about the properties of magnesium syrup rather except t k s expert conceded that magnesium citrate prevents particles from sticking to one another and that yeah you hear me this is george wallace yes yes your honor yes your honor i apologize i wasn't sure correct on that is correct that what we understood the judge your honor in this instance to be asking for is not to address the one billion dollars in revenue the one billion dollars in sales what we were addressing distinguishing between the two requests so our view was that it was the sales figures themselves the one billion dollar sales figures themselves that were prohibited the district court's warning during that sidebar was at least the  nd time victor was warned not to make similar arguments right right and we understood that again to mean that i didn't want to hear the one billion dollar dillion dollar sales figures anymore not that it was in fact to discussing what the actual percentage of because we did need to address profitability of j f k s products and a comparison of what the proposed royalty rates were an impact on that quoting sales should not be in any way emphasized beyond what strictly required by the law and and also about appealing to the jury's emotions through pennies on the  you're correct your honor in terms of what that what the judge said there again our our understanding the reason why we did not seek clarification is our understanding is that at various points what had been discussed was the  one billion dollars in in sales and not a comparison of what each proposed royalty rate was being suggested by the experts themselves and how they were impacted or not by profitability so went to an undersea our understanding being that the judge's instructions were directed towards the billions issue on page forty two dollars of the read brief i'm quoting from your s case still needed to make objections let me drill down on that the district court inform the parties that the court would make its own objection to arguments that emphasize sales beyond what is strictly required by law and those that appeal to the penny on the dollar emotions but the district court's instruction the g s case don't need to make objections as i see  ended with the pennies on the dollar in the billions it cetera so those two clarifications to j f k s counsel said you still need to you still need to argue you silly to object and if things can be corrected for example if ask you and we will we will make sure you have a few minutes to respond to mr lee's argument with regard to intrenchments and judge price and question in that regard let me ask you one more question about the damages i'm looking at appendix two thousand six hundred and twenty three i'm sorry with the district court we solve this issue and i think mr lee was correct what he all i hear him saying is that he didn't find the introduction of the total revenue figure to be so prejudicial and then he has a footnote and i don't purport to understand it but he says from the the record that any error involving the damages case would have infected the remainder of the trial such as infringement  so i'm not looking at whether infected infringement invalidity were dealing with the question of a new trial on damages so he never what i'm missing is he never deals with an issue that he thought was really relevant throughout the trial conclusion at appendix twenty three you know it's not mentioned there but it's mentioned in his a know i don't think there's that much difference between saying it's three percent of sales and there's forty five million or one million five hundred thousand and three percent of that is forty five million but i think that key thing is what mr black did say which clearly is not waived at all which is you can't appeal to life it's just pennies on the dollar so what's the big deal and i certainly don't think the sale should be in any way emphasized beyond what's strictly required by law so if i hear that happening i will make my own objection and i will sustain it because that shouldn't be an argument and then you say in an intervening paragraph in terms of not infringing infringing alternatives st i've heard about that or i think that was mentioned by mr black this morning and again i think that's best at this point dealt with in cross examination one of the things mr black something you understand already i know but if there's some particular point that comes up you need to make an m j action but on this sort of general thing i'm not going to clear the damages expert based on essentially arguments back and forth that should have been made a long time ago how to rely on the one billion dollars in sales so there was back and forth about that aspect as well in terms of whether or not you know the one billion dollars in sales ought to come in or not and what the court had said w that you know you had a similar argument in your motion in limine a and it was pretty close to what we had here and you know i i think it was waived and in fact he said that he thought it had been waived twice so our understanding of this context about also the damages expert here arguments back and forth that could have been made a long time ago was inclusive of the arguments that j f k was raising about the one billion dollar sales that that they argued midway ok in terms of infringement turning back to to that aspect you know so again the desert her undisputed evidence about the properties that just expert conceded that magnesium skeery prevents particles from sticking to one another and that the ability of magnesium sciri to increase dispersion in an inhalers was known and this document at appendix five thousand and one dollars it's a g s k two thousand and fourteen formal technical document about magnesium siri and it's expressly intended to be used where j f k s a lip the products are approved and it says that magnesium citrate was included to stabilize the size of the actives that is to keep them small so it's not about the lactose it's about stabilizing the size of the active and that makes sense because fourteen document says that the motive action of magnesium siri is understood to cope particles and produce in a particle interactions and then victoria's expert testified that when used as a coating magnesium reduces inner particle interactions and will improve dispersion sort of course that to make sense because by preventing the sticky active from interacting they stay small permitting them to reach the deep lung which increases dispersion so all of the foregoing applies to bo dispersion test because there what the court had stated specifically in it is footnote nine as appendix sixty four that if opposed to wanted to determine whether composite active particle c two increase jand compared to active particle see one in a composition also containing particles and b she was not there e a and b during testing so it went to the composition and the composition should not be varied and again here to to is flu ticket sewn in the breo product so these don't come in contact with an n one another inside the inhalers themselves further in terms of blend one and five and the content  uniformity to measure content uniformity you take a small sample from a blend and compare how much drug is in each one of those small samples and ideally you want consistency and when you have just active in lactose in a blend so blend one the active sticks to days opening brief that small particles are sticky so instead of sticking to the lactose they stick to each other and the result is what just a fact witness called snowballs throughout the blend so in terms of content uniformity one small sample may have snowball and another may not so the dispersion there was not stable whereas blend six dispersion was stable with no drop was shown in that same figure i did want to focus on plane construction if i still have you know time in and it goes to  k s waiver i want to clarify what they are requesting here on appeal versus what it argued below is their proposed construction is simply meaningfully different their actual proposed construction down below is at appendix fifty one term three and it was particulate entities formed by milling a uniform blend of only additive particles and active particles using sufficient energy in duration to ensure sufficient breakup of agglomerate to both constituents dispersal and even  additive over active of the particle what's important there is a just a argued that the energy should be sufficient energy and duration to achieve a particular purpose which is articulated by j f k for example to sufficiently break up the used in the commercial formulations must qualify as a high energy mill regardless of what the end result actually i did want to circle back to to the the allegation of prejudice for a moment and you know that ultimately the reference to j f k s sales and profits was proper in that we needed to address through the georgia pacific factors consideration of the profitability in evaluating the regional royalty in particular with respect to the jury instructions which just gave us an alleged were improper we needed to establish the profitability of the infringing products their commercial success and we needed to address the amount that a prudent licensee would have been willing to pay as a royalty and yet be able to make a reasonable profit so we didn't need to be able to compare what the request was a reasonable a drug particle that isn't enough to bridge the gap between study two even if are some conclusions reached about reached about stability and you might say to yourself how can that be it's because your honor stability is within a particular sample not comparing across samples dispersion is comparing then the improved dispersion limitation which was construed specifically by the court would have no meaning it would just be the natural consequence and that's not what the court said and that's not the patent says last point on this ge when it was asked to do this anymore quote i probably mentioned it enough today already that i think that they'll remember it well the answer is they did and it goes not just the validity and infringement which is what the footnote at a twenty three is discussing but also to justify a damages claim that is outsized and is the pennies on the dollars argument that accomplishes that