by i am extraordinarily privileged to move the admission got an article who is a member of the current good standing in the highest court of illinois and i have extensive knowledge of his credentials after he graduated from with honors from georgetown law school he did me the favor of cooking for me for two years in the northern district of ohio and then after practicing law for several years in chicago i lured him back to be with me for my here on the court and i am really glad i did but i am sorry to have to lose them and i can tell you that i am more than satisfied that he possesses all the necessary qualifications to become a member of th may please the court the district court erred when it stripped bodum of its ability to present a defense at trial by improperly excluding testimony and evidence that had been properly disclosed or the federals of civil voting not being permitted to use any witnesses factual or expert to testify about the prior art or obviousness these errors included excluding the primary prior art evidence a boat in free cup french press during the middle of trial after he had previously ruled during the pretrial process that we could we would be able to use that i'd be precluded bowden's president from testifying about factual issues relating to the bottom three clubs and other prior art despite the fact that that testimony had been identified in iraq a very responsive during discovery specifically identifying the art in the testimony that he was going to give let me ask you documents that were produced that's correct they were also submitted as part of of the pretrial order and authenticated without objection from point a let me understand something so are you my thought was that you were relying on the  for example to corroborate the witness testimony that was excluded but not an independent pieces of prior art which you believe on their face renders the claims as valid is that right that's correct because you recognize i would assume an agree that failure to have disclosed them in might be a problem to using them as prior argument that were your purpose then maybe the judge would have a job and the judge have only were ruled that we could only use two pieces of prior art the the catalogs in the drawings of the container showing the two to one side dimension we were not offering as prior art mr bowden was going to testify he had thirty six years of experience with the company he had been selling this product for since the eighty's so he knew all of the stuff and that in the catalogs would demonstrate it was on sale catalogs also demonstrated what the structure looked like the the drawings of the continuation his testimony was going to establish the prior art status in the drawings were used to corroborate testimony that's correct and it's part of the record we provided an offer of proof and laid out his testimony for this report and is also also part of the record here and that testimony was directed sole to simply laying out this was prior art this existed it had this feature and it's the same as the exemplar that we were using that we wanted to introduce to the jury and you can see that the catalogs were not actually excluded additional that was that was identified in iraq or what i'm getting at is what's the scope of that exclusion how many pieces of crime are excluded on that base ten we  brewers i think those were probably two others in the in the reference to the reissued it didn't happen that prior are included another reference i mean within that within the either the prior that we identified there was another motion eliminates was directed to a laundry list of items that we had added and didn't identify to it in the interactive tory response i'm not sure what he says me the tell you the free box patent he said you're now i'm excluding your expert but you're limited to those two pieces of prior art that your expert used despite the fact that we had separately identified this prior art and identified it in the in the inner arteries and indicated that's what we were going to rely on for four additional now with respect to the anderson report if we were to look at the report in its entirety rather than in pieces as the trial judge did there are report to your interacting tori's to see if everything that he mentioned was disclosed i believe they all match up if his report was what the judge did you're right he sort of dissected his report and said first of all it was a bound volume it was a it was a single document and and that report indicated in one section under a title that was frothing prior art apparatuses mr enders identified and said it's well known in the many make the argument that it's well known in the art to have a a device a container that has a plunger and everybody in the prior art all and everyone of ordinary skill in the art understands that if you have a plunger in a container that device that what brady did was copy an old apparatus container with a plunger which was known to be capable frothing milk that was clearly set forth in his opinion when he identified those three pieces of prior art and then combined it with see that container it's obvious to combine it with a method that uses a point that was his opinion that there was nothing else to say in order to show why this invention was obvious if your opposing counsel argued to the judge below that he should take  each of the experts from four and force them to be self contained in other words that you couldn't look at the report as a whole which is what the objection to me that i didn't see the ark and they did make that argument they said and we said it's a single single report and the judge said well you didn't incorporate part b in the parte but that seems a little bit of a stretch because the judge also relied on the list of items that mr anderson in part of his report of the rule twenty inducted it is with respect to experts is to put a party on notice as to what the experts opinion is so they can prepare in advance of trial to cross examine a question went to then it made it and we were the plaintiffs opposed the admission and then we got into discussion about the testimony of mr anders and whether we were trying to do an end run around the judge's decision with trial did you ask him for a separate bench trial for that as part of the brief i think i believe the party said that this we could get an advisory opinion from the jury or it could go to the bench and i think the plaintiffs actually asked for said the evidence isn't sufficient for me to allow this to go in seven circuit law which is controlled on evidence that you cannot issue a motion in limine the on the basis of the sufficiency of the other i mean it was sort of blindsided we were essentially left with a summary judgment on no knuckleball conduct without any briefing or any opportunity to really breach that decision and then you raised that issue with him and your motion for reconsider it says you know when you see can handle damages for willful infringement based soley on post with a geisha conduct the patentee must make an effort to stop the allegedly willful infringement or forego the right to accrue damage in this case for the first year and and the plaintiff made the argument to trial that the use of the version to froth of the continued use of the delay in changing over to version three was what the willful friendship was the case was ongoing at that time the court had jurisdiction and i think what's it really says is you can't sit around when you have the jurisdiction when the court has jurisdiction over a case to just allow damages to accrue what if we disagreed that that was a cattle call rule seeking then what is your argument court makes very clear in its decision that it recognizes that in some decisions in some instances you can get a preliminary injunction you may show like a lot of of success on the merits but you can't get it because of the other factors that you have to use in order to get  you do in addition on the willfulness we think that even if you get away from seagate the federal circuit has indicated that when you design around a product during report report and a further narrowing that's what the experts going to testify on that's nothing about what else might be introduced as evidence you know and then you find cases there are actually no experts at all i'm ok technologies and so a rule that says it's not also in the expert repor based on personal knowledge of the company i don't see how that could be excluded but i don't that was not there so to be excluded except i think the judge exercises discretion in saying that that that coming in without expert testimony so i understand that the technology itself is not complicated here but the nature of their claim on august of this was such that it was not something that could or should be left to the devices of the jury to speculate about if you did you can argue that th at wasn't the basis for your argument to exclude delay testimony your basis for the argument was that that thing that made testimony just could never appropriate for purposes of this damaging invalidity without crime gratian person had cooperation here  terms of length testimony retire argument rested on the farm where doctrine which he was confused about and never heard about and you you convinced him that that that required him to exclude the late testimony we looked at the whole transcript there was no other bas but i don't need to get there because what i ruled originally on the discovery motions what i intended to say was that i have excluded this for all purposes related to prior art not i'm not detail so is there some legal or factual link which is entirely missing here respectfully the claim charge a fig begs the question so that the coin short identifies the pieces of prior art upon which he's relying to say that it's obvious that they don't dispute that but there's nothing in the claim chart that answers the question of why i want to kill me or combine that which is the fundamental problem combination would have been obvious why isn't that saying look the level of skill here is low which we all recognise i mean the french president and you know it would have been obvious because the ordinary the larsen would know that these are the various ways you can arring defense free come french press frost nova if that's what it is designed to do but frankly would probably anticipate but it would certainly be a very different case but it's not designed for that purpose it's designed for different purposes so it wouldn't be obvious for one of skill in art to look at something that's designed for an entirely different purpose and said i should use that structure right because there's no reason to believe there's no reason to look at a french press and the motivation would have been to do them based on that evidence because there is no reason that you would look at a friend's press and look at the structure and say i should do that on a profit or for whatever reason and the best example i have that i can get is saw the invention and almost immediately after that develop the exact same product so you know it wasn't obvious to bono and i respectfully i don't think it was obvious at all  provided by a third person so i took it off the shelf i'm getting access to it i'm making it available so that we're going to have a discussion about this the user clearly is doing it and there's also lots of inferential evidence piece we're talking about so but yes but ultimately in response to a couple sentences we've said yeah the user is clearly doing it but if we don't do that as we didn't think they are doing the issue so i'm not sure that the burden with the testing results but again if we are pushing in that direction a i think it's very clear that there's nothing in the claim that says it has to be a third party providing is is just availability or access it is mor yes that's true i mean there were no counsel at that time to let consider depositions that you never put in the record and for that matter the judge didn't have them in front of them in summary judgment and they didn't respond to enough additions because they weren't part of what you put forth you know our people are all abroad yeah we tested it but we tested abroad but they weren't given that opportunity because they weren't on notice at all about your evidence as the basis for your claim for some of the judgment but i know quite ever they actually never denied