wonderful thinkers and researchers and conversation partners writers and chambers companions for each my personal experience i will attest to their qualifications to be something the front gate litigation was several people are actually selling the products into the united states why is that not exactly the common sense situation that many and says is is one for which the court should be available to figure out whether if they start doing it again tomorrow what they were doing yesterday they were at risk well because they made no meaningful effort to start doing tomorrow what they were doing yesterday your honor in this course held customer suits alone are not enough that was the case  allied the customer had been sued but no actions have been taken to sound like the light at the mexican patent it is your honor of that's different but let's assume that's different well it is different your honor but it's it's current it's the same in one meaningful respect which is that that the mexican patton there was the same as the u s patton the supplier in that case was making about the willingness to go into one systems courts as opposed to another might in fact be be quite different but your balsam was quite willing to go into the u to make those contracts that's not my memory of the case your honor but but the point here is that there they've been no concrete steps at the time that they filed a complaint and of osman showed no interest in suing them  i don't see any foundation for oh well i believe the other side attached it to one of their complaints in this declaratory judgment action but i didn't do not believe it shows any action by bossom to suggest an actual intent to point is that the subject of the declaration was not facts at the time of the filing those facts are certainly not alleged to be facts at the time of the original filing in the declaration and again it's their burden to show that time they filed their complaint and their complaint w assume that's all after the poem it's certainly not alleged in the original complaint and does not state in here judge clevenger that it was the truth and a fact as of the time of the original complaint i think two points about that one is you can't have after rising facts for article three jurisdiction the supreme court says this court has said that but the quite the question is whether what's described there without being too you know too picky about what's inferences from what's not said that when you have a preexisting long course of conduct of selling the product and as always it's a few months later a few weeks later or something he says we're searching for a whereas the inference is they want to continue they even wanted at the day that they filed the complaint to they filed it when they had no u s dollars and no meaningful plans and it is a technicality and maybe they would have had to do much more to create your stiction but they need to take some concrete steps to showing action they're essentially asking for an advisory opinion from this court actually litigated inside that case that that we argued that arizona be california met that only claim preclusion would follow from the settlement and the judgment in there is a result of this and i am not sure how you know if that principle is i think as strong as you need it to be which is that even and actually litigated issue in case number one the resolution does not get issued because of affecting case number two simply because case number one was  settled which is not the facts of arizona it's not the facts of the tax case that arizona relies on back i don't see how that broad proposition could be sustained except on the proposition that you did not argue which is that if a issue resolution is not necessary to the judgment then it doesn't count toward that that's why i guess i thought it was important what judge clevenger was asking the judge here says you did not argue essential to the judgment or necessarily decided which seems to give away that issue my memory is that the judge didn't my memory is that the the problem one is not there was no decision here on the merits but the problem even if you just look at the problem that this report doesn't there is no ruling on liability there was a decision on the merits in that it was a dismissal without with presence there was and there was and a judgment entered with that would be have claim and what they say is that they are up a partial summary judgment had been injured on a legal question in the prior case and then the settlement intervened that's been successes but settlement intervened so we don't find that sufficiently final fo and even the restatement comment all are talking about situations in which the issue has resolution is now asserted to be precluded was in fact merely consented the last time no not in adjudicated issue in a case that was ultimately resolved by settlement those but the principal stepping back from it the principle is the same which is that a settlement that doesn't resolve the issues finally on the merits so here the climate action or it was never applied it never was put to the test it's an interlocutory order that would have been subject to revision by the district court at any time had the case continued it's in essence just like a preview of the claim construction and that's not the case here this this court also has had two other cases barden and interconnect planning where parties have voluntarily dismissed cases in this court has after claims struction after partial summary judgment even in here in in this case and it was later clarified to mean something we didn't understand it to me at summary judgment which is one of the reasons this court doesn't take things on interlocutory review we never had a chance to appeal it environ and interconnect planning this port pressed to think of the work pivot pivot point as something that applies when there isn't two fold connection which i think basically judge or cat in mind when he stressed from which turns on together that there is a physical connection between the object that is pivoting and the pivot point and that connector is moving at the point is in motion at the point which is not the product here here you have this kind of idealized point on the tongue of the of the device that fits in between the two things nothing is moving at that point it's just a piece on the metal defect that metal piece could actually have a hole there and nothing nothing would change but every pivot i think of which is either a lever on a folk or more anything else has some physical thing that  point is turning right there and that's true in figure eighteen it's true in every body mint but it's not true in the cues product and it would seem to be captured by judge or exclude a claim construction that emphasizes it's a negative limitation that judge work has read into the claims and there's certainly no requirement that it be connected on and i don't think it's initial claim construction actually required to be connected on because he interpreted rotating to be comparable to  write it seems to me quite a lot of your preferred sounds like it's saying it i think is actually kind of meant to say that if you haven't a object moving in a circular path then whatever is in the center of the circle is a pivot and that seems to me troublesome because it seems to me that focuses on the path of the movement and not the mechanism of the movement and the pivot point is about a specific mechanism you can have a lot of mechanisms you know if i'm running around a track i'm not pivoting on the you know the the center  the fifty yard line i'm kind of running around it and it's at the center of my motion but this the shape of the path is not enough to make the mechanism a pivot and so what i've been concentrating on is it seems to me that the mechanism that makes a pivot and i think it may be slightly different from you're connected to but but i think it's actually slightly more than that that there is a physical connection that physical connection is determining the motion or at least part of the motion and that c ector is moving at the point i don't think it matters whether it's actually a fixed point or not but it's moving at the pivot so i'm not sure that was a long explanation but if i can just tell you how i understand the whole thing it's both pivot and our experts animation shows right if you give if you're willing to assume for me with me for a minute that a pivot joint is a joint that has a pivot in it and so now we're talking about whether there is a pi pivot has to have a pivot point maybe if it can even move move around but it seems to me it has to have a physical connector where that connector is moving at the pivot point so it's not just enough that there is you know you're you're a doesn't describe a pivot joint is having the pivot like you're saying the pivot joint is something that allows a function which is the nd chop to pivot around the st drop and the only connection is that the pivot joint somehow connects those two things the prior case statement is that in the record i don't know the prior case statement the front gates yes it would be in the record attached to our  opposition to the motion to dismiss the st amended complaint that on page nine of the read review say that at the outset of the front gate case balsam filed a motion for a t r o seeking to remove you c p s trees another court where boston might see to of they the claim construction order what's your factual basis in the record for that i think it's in the coup declaration that's attached to  opposition to the motion to dismiss the fact be addressed i guess the case your pants reversi question for st of all looking backwards to the time before the settlement does the record tell us for roughly how many trees gate relationship for this particular tree i can't give you an exact time period but was about maybe two years nobody seemed to know i mean like fuzzy right so i would like to address where you were in the records that hundreds of thousands of trees and on the market right it just you need to have meaningful preparation and that so that you can look at the product and she was claimed you know what it is that you're being accused of infringing were well beyond meaningful preparations here we've made the trees we've designed exactly and so you see peter was still potentially liable for six years of past damages is is it seems to me that what you're saying is that you see pm and and frank eight are the same states to front gate it is subject to personal jurisdiction here and can be sued here so you say it and when you cite to that to that statement that while some told the court that it might that i apologize if it's that that strong in our brave that the point was the argument was whether or not front gate or whether or not bossom had ever made an actual statement to use c p and our point well they made exactly so on that point the timing of the d j action balsam says well you see p could dictate the timing of it you see p out of the blue finds that its customer has settled it didn't get a release it was legitimately had a reasonable apprehension that it was about to get sued it been told it had jurisdiction and its trees had been accused claimed charts had been drawn it was our product the issue in the front gate case there was no doubt that they key was our product the only issue is whether or not the settlement mooted the legal dispute because that's what d j jurisdiction required to write a legal dispute between the parties and it clearly did not because we could still be sued both for the trees that were being sold for past damages and even for the offers of sale that the crew declaration says that we were we were in the process the only way this case would case where our products were actually litigated and they were still on sale and we couldn't get a covenant not to sue if this doesn't meet this would be a sea change i think in this court we scrambled we scrambled mike you c p honestly thought sincerely thought you were about ready to get hit with it in a frenchwoman suit someplace in a court when the claims construction would be redone maybe not as favorable to principle applies here and makes the claim construction a ruling in the front gate case not a legitimate subject or issue so your honor one principle from arizona three applies it's just not the one that possums relying on and let me explain arizona three actually had multiple preclusion issues involved part a of the opinion talks about issue  part of the opinion talks about settlement preclusion and the problem in arizona three was that the settlement between the party president let me to see i mean i think we're on the same page and tell me if i'm wrong so arizona did not need to state the broad principle drawn from comment the restatement nd of judgment section twenty seven or state the principal as broadly as it states because it had a situation in which the issue that was being discussed was actually itself consented to the resolution was consented to it hadn't been litigated so that's a different fact and it also was opaque so what arizona said is broader than what it needed to say so i'm going to talking here about the principle it articulates why does that not it is the case is easily distinguishable and it's facts but we don't you know ordinarily get to do that the supreme court i think is right so why is the principle in applicable judge st paul fire was also his primary argument below and the district court judge looked at it in detail and said look it's alaska law it's rarely been cited it's in a different context i think i think this man had cited a couple of different issue preclusion decisions going on but the st one was about a fact finding in a prior case where there are not so in arizona one the supreme court decided what land were going to get water rights in arizona to the parties argued oh we forgot to include some lands there are some omitted plants and so in arizona three when there were disputed lands the party said hey you already decided back in arizona wine what the land for and so that's issue preclusion and what the supreme court said on the issue that was decided on the thing that it had actually been decided which is what the on the nd part of the court's order it's dealing with a settlements and the court says no the settlement is an issue preclusion because the parties had advanced to where the plaintiff in that case had advance two contradictory theories either the contract was valid and we were owed money or the contract was void no court ever decided that issue there wasn't an opinion it was nothing to resolve those facts and the parties settled and the court said a settlement itself doesn't give you issue preclusion that's not what we're talking about some issue had to be decided we have to be able to look to see what the court did an seems to assert a fact that it's plainly false right it says in any consent judgment there is no issue actually decided that it's plainly for us well as a play for is no issue decided in the final judgment that's that would be true exactly the fact in fact in the d j action we have to go through summary judgment to get a finding of not an infringement because there wasn't a close as a fact it's a different argument and what the court found is the settlements are relevan because you think he is not asking for precludes the effect of a settlement we never did what we were asking for was precludes the fact of a court order but it doesn't the distinction you are rightly making between the claim construction adopted in front gate and the infringement question which was not decided in front gate help one seemed why essentially the arizona principle broadly conceived  makes sense here which is that the resolution of the claim construction question was only one step on the way to the final judgment in the final judgment was ultimately by consent that is often the case and bates vs union oil now bates had gone through its through a final decision but settled thereafter and it was immaterial to the court's decision that the that the case so this is why issue preclusion applied in this case and why it applies and in the context of a marking hearing is because as you preclusion is simply a principle of whether or not a court has put in enough work has done all of the work that's necessary to come to a sufficiently final decision the fact that that decision is in the process of a case and the case could go all the way through it could what the th circuit and what darden and in this court and that the set of the restatement says is that an appeal ability and is one of the factors that you look at for issue preclusion because in the th circuit a settlement is sufficient judgment or issue preclusion and so you're looking at a different thing we're not talking about a settlement we're not talking about building somebody collaterally a stop for a claim we're talking about an issue that was briefed and decided by the court and here this court was the same judge that had done the claims construction and he knew he was going to claim to change his claim for construction and and some admitted that it was final when it told that after the judicial recusal wrote to us and told the court that judge oric made clear he wouldn't be changing his claims construction so everybody knew this because i think it's an important point  he applied the facts it's an abuse of discretion standard and on the finality which was the only issue on finale he found his own construction finished sufficiently final and i don't think he's abuse of discretion see if there was a court order or some sort of court finding on the issue and whether or not it was necessary in that case or some collateral issue that didn't that didn't really address the claims that wasn't our case because we weren't applying collateral estoppel to a judgments we are applying collateral stop to an issue and then we took through summary judgment to get to thing right this is an issue of well now because the issues in this case were in political and non infringement right and so so what markman tells us is in that step much like in contract interpretation the court has to tell us what the claims mean that's a function of law that's never going to get appealed the jury is never going to hear a dispute over markman car terms and so if this case had settled on some procedural grounds and  know and we were trying to apply issue pollution to the settlements then there would be an argument about whether or not a mark when an order might have been relevant to whatever the grounds was for the salomon but but we're talking we're talking about a market in order that we're  plying collateral estoppel to that issue and as i understand balsams argument the argument is was you should never have issue preclusion to mark minute orders and what i would say to that is issue preclusion applies in litigation generally to all parties and there is nothing about a mark of an order that merits special treatment so i don't think that is their argument at some point i think they would ins at some point in the proceedings when the judgment is about literal entrenchment ok not accurate ones is played by this articulation that there has to be a connection all by itself in part because it seems to me when i look at this i did device on the accused product there's plainly a connection it just goes up and around in the out like that so they're connected so what i get i am not quite sure  why why it matters whether one says for literal infringement how one can say there as i think judge or did say there is no connection i took the real point to be that there is no turning so what happened at the around the take it out and bit when it's turned on and the turn of follows from which which strikes me as meaning that there is a physical conviction causing  the the rotation and at that point that connector is moving at the point that's a point i'm just going to keep saying it over and over because i've spent days and days trying to find the words to capture what a pivot is and i guess that's that's argument about about the claim right right now what had happened is we had a originally proposed a construction that was in a circle around a fixed point and that's because if you're moving in a circle around a fixed point the movement has to be on a fixed point so it doesn't well if you're running around busy a circular track it absolutely does not ok that was that was the claims construction that was probably just or it did something helpful to you lazy oh that's too broad he said no that's too broad he said also he was dealing with this figure eighteen and the videos and how the the ends of the spec and trunk move and what judge you are upset at the claims construction hearing what look i don't care about how things how the trunks move i don't care about in a circle what is claimed here is a structure and we're going to have a mark we're going to have a claims construction that defines the structure and so he said we're taking out in a circle and i said to him at this at this point i said ok well forget take out in a circle then we need to make sure that that we say it's on a fixed point because there's a problem having a construction where something is moving around a fixed point that's not physically  council he says oh i judge york i think you're mistaking when you say apparent joint or as requiring pivoting to occur on that point we all knew that that was what the claims construction was nor was there any dispute over what a pivot means during during the claims construction process balsam never offered an ordinary meaning of pivot not one time it didn't dispute our dictionary definition of pivot or that pivot joint had to important here because also says we failed to prove this we failed to prove that in opposing our summary judgment motion there is no claim analysis no limitation by limitation analysis there is nothing to show infringement even question was whether he was going to adopt it just import it into the record in a way such that we could appeal it to this court which is what we said you know we still object your claim constructions but at least less appeal it or whether their view is going to prevail and we're going to be precluded we did so we didn't argue a new the claim or sections that we did we knew originally quests and he did allow us to import all that into this record i assume so in case you disagreed with his argument that it was precluded we could appeal it and i think it is important that we didn't determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in the earlier action absent clearly express intent otherwise settlement agreements in the resulting case dismissals and judgment don't give rise to issue because in the language you quoted me before we gave me the district court language the very next sentence says nobody disputes this is the very same claim protection issue but it that that we don't dispute is the same issue the question is whether it was necessary to any judgment on the merits and that may have contested all along point around which something is rotating can move it does not need to be the point of connection to toronto and i quote you to the examiner when he when he distinguished mit he call that pivoting this is the screw in prior art past of the same is still a circle and that seems to me to be just insufficient on its face because it doesn't address the mechanism by which the calf it's up being the say so this is looking at  where he's put the blue to over there over there will trump and shown how a green pivot if it were attached to that would move and their thing is moving in exactly the same way  figure eighteen it looks just like figure eight hundred they conclude it is covered by the by the climbs and did anybody make anything in this case of the fact that the track is not actually circular straightaways like running track so it in fact would not be just like at the end of a radius i didn't see anybody make it so they arguing that's kind of they argue that they are thing moves only translation really somehow but translational movement doesn't change the angle of something as our expert testified and so it's physically impossible to not rotate and still invert which their cleat treat clearly does and this is a disputed fact even if you reject all of our other arguments which i wish you would not but that this is a dispute a fact and the judge wrongly g i appreciate your indulgence of the court has any further questions i'd be happy to thank you we repress that reverse