the conduct was objective lee reckless and i ask you just to be clear on what the play is here the just the court are you making a distinction between the several million lighters that were sold before the october analysis just as we have let so are you suggesting that you have a different or stronger case on willfulness with regard to the seventy five thousand credible lot than you do to the prior to the district court judge didn't my recollection  he didn't seem to draw distinctions between the two necessarily right he seemed to be talking really about the pre op tolbert two thousand and four well i mentioned i think the district court was focused solely on whether at the time the notice that there could be no finding of willful infringement i would have to concede that not that ok so we're talking about the sales after them that's correct right and with respect to those cells my fact because if that was true then they would be challenging the actual calculations of damages and what it was going on and this appeal they say you didn't prove that any sales took place after them as you say we did that's the issue correct you know that we what the dispute is about on the appeal as to whether you've shown that there were sales after the notice or whether you haven't shown the i think that that that may be an aspect of what the appeal is about but the but about the documents was why the president of the company who said i don't know what that document meets you know he did say that he knew what that document was he studied it was produced from their computers and it showed the sales and the only sale particular time there were no other utility lighters being sold how do i know that because there's no evidence what because the only thing that was ever discussed a trial and including their own expert discussing the covered the accused letters because there were no testimony by anybody who was familiar with the documents that documents show the sale of infring well then then we followed up and there's and there's to the way that we know that says infringing sales because they concede that they used to sell a different lighter and then after they got notice of the in french meant they then so went and bought a different lighter but the lighters that were in inventory at that particular time were the infringing lighters there was no there was no hearsay testimony that he said that these correct but it's reasonable that it was a reasonable inference because no one was suggesting at trial that they were not the america that gliders that there were any other lighters that were being sold at that particular time if they had been s other lighters at that particular time that would have been a huge issue but the but the only time they talk about when they were selling other lighters was years before in the early ninety's they said they use right right and the and the only utility lighters they were selling at that time were the american clients there was no testimony at all we know that did somebody say that that was the case with well we can infer that from the fact that this was  that they that they said that they bought the four other liars before and they bought other lighters after but they didn't buy any lighters anyone else's lighters during  there was never literally at trial no counsel never objected whatsoever to the fact that that of the total number of lighters went in the in the total damages calculation so i mean people make damages calculation on the hypothetical that you're correct but that doesn't excuse you from establishing the basic fact infringing lighters were sold after the notice  and the problem is you haven't been able to point us to any testimony that's the piece that supports the proposition that infringing lighters were sold after the notice but let me go back to my first point about what the willfulness goes to do you agree that assuming the verdict with respect to damages were upheld that since you're only alleging willfulness with respect to a small percentage of those lighters that were chose actively chose to put this off on to a chinese distributor that went bankrupt and so that's and that's that's really the heart of it because when you look at when you look ethically says with regard to the president mentioned being held by acme international international ameritech will provide a reason basis for its position that the product products purchased by acme international from the varitek do not in french any claim th either patents are good by calico so before he sold the additional lighters he knew that he needed the reason basis he knew that was the law and why did he not go and and get a basis on his done because he says ajay one thirty three that he's not required that this is not their policy but to that you don't do anything to find out whether you were infringing correct that would be correct and so that the problems you sold additional leaders not a problem with that and that would i have to concede that would be true your honor i just believe that of the record does stablished that when you read the entire record that no one was contending at trial that those were not the lighters that that were being sold that those were morning arsenic please the court the court has seized on the real issue on willfulness here and the district court got this one exactly right the reason we're having this debate over a lot tracking documents is that at trial the plaintiff's position was that all acme sale including pre no to sail we're the subject of a claim for willful infringement and that's what that's the way i read the district court's opinion where there wasn't a lot testing the plaintiff theory of willfulness against our client acme and saying i'm not seeing a whole lot of there there and what counsel for the plaintiff that is our position is that acme buried its hand head in the sand it was willful indifference the underwater device a standard that we moved away from a long time ago so their theory at trial did not distinguish between pre and post notice sales that issue was raised for the first time on appeal and as we noted in brief it was for the first time in the proceedings or for this court on appeal that the plaintiff started citing this one watt tracking document as evidence that there were some deliberate sales after acme was put on notice  randy he pointed to precisely to the page that i would have called the court's attention j a two forty six where when our client's representative was asked whether he could tell which lighters were second letter your honor i think is evidence and if you look at the you know we're really focused now on the subjective prong of the secret test which is you know my client now has notice and what is their response after realizing that there is an allegation or potential allegation of infringement they received a call from from plaintiff counsel in october two thousand and four they received a cease and desist letter in on october twenty second two thousand and four at some point between october twenty second and november second my client called ameritech the manufacturer and said we have this notice and the november second letter is confirming that phone call where we not only confirm that we're entitled to indemnity both under the u c c and under express  contractual agreement but my clients demanding that ameritech prove demonstrate to its satisfaction that the products don't infringe and my client said very clearly in that november sixth one nov second letter and in its following letter it if you can't prove that to me you're taking the stuff back and that's ultimately what happened so in the space of several weeks after being first put on notice that a patent existed and there was an allegation of infringement my client was in contact with its manufacturer demanding assurances of not infringement and w particular batch of letters from america and we the november twenty second letter which is a j one twenty two confirms what happened which is that america tech the manufacturer agreed to refund our our cost for all the lighters and inventory we agreed to hold them and ship them back to america at once and the matter was resolved but we immediately csail demanded assurances of non infringement and demanded a refund and return the inventory you assess the willfulness test under among other things reasonable standards of commerce the district court i think correctly held it's not reasonable to assume that an aggregate reseller of thousands of products is going to be doing freedom to operate unfortunately the magistrate judge i think wrongly submitted issues to the jury that should not have been submitted and then upon getting back from the jury the factual findings that they made did not undertake a poll test he was supposed to make or when you get into think that's that's exactly the issue your honor i think that the market share is enough to create a rebuttable presumption perhaps but under graeme processing and micro chemical versus electron it's only a rebuttable presumption and then the burden shifts  to my client acme to prove that the plaintiffs claim a thought for causation is nevertheless unreasonable and what the district court here did with the magistrate it is submitted to the jury for factual findings the various issues relating to los profits and on the game all ruling the district court the magistrate went through the pant before pan do it factors and found that the plaintiff had made it showing under each of those four can do it factors but then never took went to the second part of the test to address in any respect the rebuttal evidence that we had put on it true so what we but what's your best rebuttal evidence that your rebuttal evidence goes to then you agree that you had to show that the c of the purchases were for something other than the patented invention that the rebuttal evidence and actually the an earlier district court judge who had this case i think t v issue up perhaps the right way which is in the december two thousand  ruling finding the patent valid on summary judgment the district court also consider the parties across moves for summary adjudication of whether lost profits were available and what the district court said there was as to my client acme he concluded there was one specific factual issues that to his thinking was unresolved which is whether he agreed and it was undisputed that we had not infringing alternatives available immediately want to put on notice of infringement what he said he did not know if we had not infringing alternatives available throughout the period of sales of infringing products he said that was an open issue and that's why he let he was prepared to let it go to the jury when the magistrate judge took the case back after the trial he really didn't go back to that framework he just went back and applied the pan do it factors as to the second factor the absence of not infringing alternative he said well the plaintiffs have argued a market share theory and that can be sufficient to show the absence of not infringing alternate distinguish between the non fringing alternatives and the infringing problem correct your honor and i think i pod at the time quite got there yet but that's exactly right for the undisputed evidence that finally came back at trial is that since the year two thousand all utility lighters had child safety mechanisms by law that's a patented feature claimed in each of the asserted patents and soup the undisputed evidence is that consumers didn't know or care about the differences between and among the different features of lighters they were interchangeable they were interchangeable not only to the ultimate individual retail consumers but also to acme and to the retailers to whom it sold its products in aggregate and  throughout the period through and specifically going back to j h two forty six our president testified clearly that he was buying both ameritech lighters and non infringing letters from a company called n f l throughout the infringing period so the testimony at trial answered the question the one open question that the district court in two thousand and six had said precluded his deciding on a matter of some redo cation whether lost profits were available so once  that testimony came in at trial frankly i think it probably could have still been done and summary basis before trial because the evidence was on about it but once the evidence came back at trial again the magistrate judge walked through the plaintiff's case in chief and decided that they had met each of the elements but he never addressed at all the rebuttal evidence that we put in we were entitled to rebut the plaintiff's claim of of but for causation again under green processing and micro chemical and magistrate judge made no findings whatsoever as to whether that rebuttal evidence was sufficient to overcome the presumption and we believe on the record that was established that is the only reasonable conclusion that can be made there's another material problem i think with what the magistrate did which is he never distinguished in assessing the availability of last process between america and the manufacturer of lighters who at least arguably was the direct competitor with the plaintiff and my client acme my client acme as an aggregate seller of of goods we purchased lighters from a bunch of sources never purchased from calico before but we purchased from a bunch of sources and to our customers we sell our customers bulk shipments of products if you go into i guess not linens and things anymore but a bed bath and beyond and you see a whole shelf of eggbeaters and with six and timers we sell all that stuff involved including the utility lighters that's how our customers purchase from us and that's in the record there is no evidence calico presented no evidence that either acme would have purchased lighters from calico in the absence of the infringing ameritech lighters or that our customers who were used to buying from a futility lighters you know shift in the sold the infringing letters you would have substituted on it exactly your honor there's no reason why our customers but all of a sudden have gone to a different seller to buy utility lighters independently infringing letters versus i believe they were interchangeable your honor i'm surprised yes so there's there's no evidence that we would have done anything different in fact to get on to a two forty six we made clear we were buying not infringing lighters throughout when we got notice of there is no evidence whatsoever that they were any non infringing light or that they went they never introduced what the slider was why it wasn't wireless not infringing or anything like that so so at trial there they were just assuming that they they had this alternative product but the whole point was in the evidence about an alternative product so other than other things other than the conclusory statement that they had that that was available but there was never any any any anything other than that and so at the very least they needed to introduce evidence that showing yes this product is an acceptable substitute as far as showing that the people bought for other reasons this argument suddenly come up on appeal that people bought it saw all these products as being interchangeable mark that mr knapp who's vice president  mr knapp's the testimony is in the trial record with respect to that that particular issue we did not consider that a central issue in this particular reply understood from your briefs on appeal with you didn't dispute that there were not o alternatively or did you dispute that consumers didn't distinguish between naaman fringing alternatives and the with engine product with respect to not infringing alternatives yes there are not infringing alternatives that's why we use the market share analysis that that you're would be an acceptable to consumers was not in the record you know but the darn answer my question my question is did you not in your brief concede that the non infringing alternative that was available at that time was with respect to whether the seventy four thousand units sold going in and things that's contained in j two forty seven to two fifty one in which mr mil testified that that document containing the the infringing sale and there was no objection to that in the admission of that evidence and if there had been an objection on the basis of  tracking device shows infringing letters in our briefs it's on page eight just very briefly i don't think i have much to add other than what's already been done but first there was a question made as to whether i actually made really be the only point there was a question as to whether the plaintiffs admitted or conceded that the letters were interchangeable to consumers that testimony came from the plaintiffs representative of j one sixty nine to one seventy where he admitted that he was not aware of any basis on which consumers differentiated between his lighters and big lighters and scripted lighters and all of the other layers on the market and again the underbody testimony was that throughout the period of accused infringement my client purchased lighters not only from america taxes from a host of other suppliers including the one that got called out by name and s l which pla