did so with respect to both willful infringement and the mental state required for induced infringement we believe the court erred in both regards and i'd like to talk about each in turn  willfulness in the original case the district court found that defendants willfully infringed by selling bus converters to sisko between the december jury verdict and the january twenty fourth entry of the injunction that was the co shouldn't have couldn't possibly be have been affected by the stay that went into place now that of course you recognize doesn't preclude the lower court from saying ok fine they're finding willfulness but no one point seven five times damages because judge ward said at the outset even though it was dicta that i wasn't going to award willfulness or additional damages after during the say period and this judge replicated that statement do you realize that if you get what you want it seems to me you potentially get a case in remand on that wilfulness question but that doesn't guarantee you by any means the one point seven five times damages because circumstances could be viewed as different in light that's a matter of law that there could not be the the willfulness finding it so it didn't even get to that second part the enhancement part so and that was that was the error and we we think that needs to be vacated and the case needs to be remanded to determine the degree of enhancement now we have we don't think it should be less than one point seven five but but you're certainly correct as a theoretical matter the court could in assessing all of the circumstances including the stay and everything else decide that it should be something other than one point seven five maybe more maybe less now that be the rule that the just record upon wilfulness really has a perverse result when you think about it because of sin court would have been better off if it had never even bother to try to get a permanent injunction so we prove we're entitled to a permanent injunction irreparable harm money damages are inadequate if we hadn't had not even sought a permanent injunction and  just sat back and let the defendants continue to rack up sales that we know were willfully infringing sink or would have would have been getting the one point seven five would have been better off and if than if it had not even bothered to prove that it was entitled to the injunction that doesn't make any sense now the district court thought that result was compelled by the a motto decision and that's that's just incorrect marotta i'm sorry a motto address the proper calculation of actual damages for post verdict sales made while an injunction was stayed with all one was the amount of damages has it been briefed in this appeal i'm sorry or not has it been briefed in this appeal be the amount of damage was no the the amount the amount of actual damages that's not before right at that that has not been disputed the amount of actual damages that the court awarded for those infringing sales correct up but that was the issue in a model and no one argue convenience to review the papers it might be different i i i think i agree with you your honor and let me say let me say a couple of things one is i think that as a threshold matter the fact that a state had been entered i thought that part of your answer to judge larry might include the following that may be another understanding the facts right the defendant actually didn't argue any of these three factors for creating a stay except for public interest tar below  certainly when they came to this court seeking the temporary stay they did argue bullet a bullet they argued likelihood of success on validity correct now to get back to your question judge laurie vick the kind of stay entered here was was surely a temporary stay to give this court a chance to consider whether it should enter a stay pending appeal the court had even heard from singapore at the time it granted a temporary stay so to suggest that somehow the fact that i think it was  entered the order was somehow making some sort of a determination about likelihood of success on the merits does it make any sense in light of the posh during the case then later when you get to april eleventh when the court fully had fully considered the stay and denied the stay as to sales to most of the defendant's customers which are which also i think suggests that this was not a determination that they were likely to prevail on the merits because then you would think the state would you know be across the board which isn't what happened either but in any event that didn't happen until april eleventh the sales we're talking about now that were found to infringe but not willfully and were in that interim period when it was only a temporary stay now i want to turn to the inducement question and this has to do with the the bin see re dot labelled sales now that we think that inclining no inducement liability for those sales to district court simply misapplied or misunderstood what it what the willful blindness standard means for inducement liability and we i say that because really the material underlying facts are not in dispute the defendants told this court that cisco needed to buy their boss converters and it needed to buy them through september in order to meet  economy would come crashing down on they testified that they believe that when they said it they believed it afterwards and they never changed their belief and what cisco needed now based on this and the fact that they were indemnified for infringing sales and  continue to make those sales the district court found inducement liability for them for what i'll call them the on label us converters but it viewed this red dot system this vincy system as a completely new fact that changed everything well and the offensive fair point your honor they are facts and of course intent is normally of a fact laden inquiry and there was a factual determination by the district court here but just to go back to what i started with the underlying facts that there were the real facts are not in dispute it's really this conclusion that the court drew from that so i think it's more a maybe the right way to characterize it as a mixed question of fact and law where the court was a mob we know about those you know  the red dot system didn't change anything is because first of all it was just go ahead develop that well in advance of the injunction being entered the defendants knew about it when they were telling this court that cisco has to buy our boss converters or it's going to go crashing down two of the defendants aspect and power one rar using the system at the time they were telling this court cisco have to buy from us through september so basically their statements to this court which they said they continued to believe assumes that red stickers are going to be put on these us converters at some point cisco never told them it needs it's need to changed and they never asked now whether they didn't ask because they didn't want to know the answer because it would confirm what they strongly suspected or because they didn't care because they were being everything including enhanced damages either way it doesn't matter because what it means is that the read this red dot system was just a smokescreen something that could give them plausible deniability it was not really designed to prevent continued infringement told this court your businessman your biggest cost you thought your biggest customer absolutely had to have your bus converters for this period of time for its u s sales and then suddenly it seems well they don't th don't need your bus conversed you don't even ask well what happened was how come you don't need me anymore that's what that's what i think points to the willful blindness here your honor the red dots were not direct evidence of intent when you when you view them in the context of everything else that was going on which are the representations the understanding's and the continued sales and for several of these defendants substantially increased sales during the same period when they said that cisco which is which brings half of it fifty percent of its products into the u because the defense each of the defendants told you that these things are not fungible because they have to be qualified for a particular cisco and products so even if they look the same they have to go through a rigorous testing process and their briefs are full of how  seventy harper the public at cisco were precluded from a painting the parts it needs from aspect well at the time of the injunction at and they testified that they continued to believe that throughout the relevant period all the way to to september so that didn't change so it's not  process and the other actors direct evidence of their of activity that they took to avoid inference well the only activity that they even point to as as to avoid infringement is putting these red stickers on there at a time when they're their stated intent was we not notwithstanding these red stickers we know that just we know that cisco still needs our parts through september so i think the direct evidence of an intent is actually the other way and that what you have here is direct evidence of as i said a smokescreen designed to manufacture deniability which is the definition of willful blindness is to throw up as you see you've consumed your time will give you five minutes of rebuttal time back doping arguments if you had not stood up you would not be allowed address and you realized that right that's the way this works a standing up and talking you know open the door for him to address conditions on replied we didn't have that option he would deferred your time to the other two they court or by this court and it instituted additional protections against importation councils talked about the red dot but that wasn't on the power wasn't your point the lack of genuine if you if reading summary judgment yes yes honor and here there is there's no evidence in the record of intent as as has been pointed out no council has focused a lot on the arguments in the staple roofing and i'd like to direct my attention to those first of all how one never avail itself of the same situation the motions for stay in order to keep its legal options open but at the end of the day it never availed itself and never took advantage of th it always complied with the injunction and it got it implemented additional protections in terms of getting the getting the agreement by cisco to not  since we're pointed out this is a multi supplier market every defense every supplier knows only what it sells to cisco doesn't know what the other suppliers are providing it doesn't know cisco's overall demand and be our one had these protections in place it was reasonable for power one to believe that if components would go through the overseas markets and that other suppliers would supply the u s market to court told this court that it could could supply two believe that because it was implementing these procedures and it had cisco's agreement to not import that that we were that in core argues that there was no written agreement but it doesn't hasn't presented any evidence that there wasn't an oral agreement that those facts for undisputed they've tried to speculate that because there's no written agreement that there was some breakdown or some some dispute over that that there's no at that young disputed evidence is that there was an oral agreement the last thing i'd mention is that if we look at the the information in th council keep referring to at most it shows that there was a possibility of infringement and this court has said that that's enough in fact judge or jury in the warner lambert case you said that mere knowledge of possible infringement by others does not amount of i'd like to start briefly on the issue of inducement i think course claimed that these defendants actively induced after april eleventh two thousand and eleven and with respect to ask for a limited period before april eleventh two thousand and eleven the court concluded that sales intended for us to use while the injunction was fully state were not reckless accident french that let's be clear about what the circumstances were this is not a case where a jury found that there has that there had been that point said your continued sales after the verdict are in fact will judge more respectfully the district court actually didn't do the analysis like if you look at the district court's opinion and sink or one and that's not before the court i understand but there's no finding that the defendants defenses are objective liana reasonable as required by seagate and by the board to know why was you have to do that post verdict why after the verdict has been rendered does he need to make a finding the jury already made what judge moore the jury made a finding but there were post trial motions that were pending there was an appeal that was pending i mean is is the court really going to take the position that any time there has been a jury verdict any further acts of infringement or the harm associated with what you just said i don't see the problem once a jury has adjudicated you to be an infringer in the patent to be valid why isn't every sale you make after that a net potentially a willful infringing set out and  automatic award and what judge flynn and this court did in that case was to actually articulate here's all the factors you're supposed to be looking at here's the kind of stuff you're supposed to do and isn't that what the district court did in this case at fifty seven six no one and six ninety two when the district court issued its order in which to for sighted to hit by one point seven five times the image of water in fact i would like to draw your attention to the precise reasons that the district court gave for doing i'll give you suck to find  opportunity to develop goodwill customers and brand recognition of this product is not exactly the kind of thing that we said in a motto was what you should consider it sounds compensatory doesn't even tell puget sound just like this i found that compulsory license at a higher rate was warranted was doing which part that i read is that right judge moore there wasn't or if you look back at the single one decision of of this court on appeal the question was whether or not this was enhanced meant under two eighty four not because of changed circumstances after all of that that's when this opinion happened august of two thousand and eleven and the fact that a stay by this court was granted pending appeal is significant for to think you have the sentence here who are not behaving recklessly they are playing by the rules that it you have an injunction is injured and these and there's testimony of this these defendants start making cells you can see that a ninety nine thirty two and a fifty seven five seventy three they stop making sail and then when the stay was change status quo status quo prior to this day was that they were receiving two hundred seventy five percent one point seven five and get a regular damage or when every single one that was not that that was not the status quo judge moore and respectfully his enhancements occurred after the stay was granted again to the time one hears important and respectfully i think you're not understanding the timeline for all of these things the only decision with respect to enhancement and the decision that they would receive two point seven five happened in august of two thousand and eleven the stay was granted in originally in january of two thousand and eleven and then subsequently in april two thousand and eleven this court modify it it's specifically for that depend upon the reasons was very well judge lord judge lawrence respectfully if the court following the standards of the supreme court set out in ten versus holder one of the factors of the court is going to always have to consider in granting a state is likelihood of success on the m and there has to be some finding of likely that was not the reason for the stay here will judge florida respectfully if you look in august if you need to look at the april eleventh two thousand level decision modifying the stay the court recite the the state standard say we want the sales to continue but didn't say not just that you can't be compensated for them of course they can be compensated for them that you can be punished for it but second that you have a finding a by this court a finding that there's been some likelihood of success on the merits you have no consideration of other services just so judge right now i think that the district courts reading of the motto as applied to the facts of this case is correct and the reason is because the model looks just like this case it isn't a situation where you have a jury determination of willfulness and someone's continued to make sales in the face of that what you had in a motto was a calculation of supplemental damages and that's what you have at issue in this case as well supplemental damages and a motto i think instruc that you're not supposed to ask the question about whether or not it was that's right willfulness is not in for you or to take into account change circumstances you can take in to work out what do we see that the that the court did that you can see that in two places in the in the record your honor you can see it at a nineteen that's where the district court recite th motto for that proposition that he's supposed to take into account change circumstances and you can see if i remember correctly is a twenty four and a twenty four the district court in this case in determining compensatory damages in determining what the rate should basically really arguing the willfulness determination from the first case that's gone and that's not on the table now be this court and and he just he was also confused about the timeline of the state the stay that matters for purposes of the district court's willfulness determination was a temporary stay entered in january without hearing from stay in cork simply to allow the court to fully consider whether it should stay the case pending appeal whatever happened on april eleven certainly didn't affect the defendant's mindset because these sales we're talking about right now all occurred before april eleventh and moreover what about the federal district court ruling that the federal right but and that's that's what i that's to say i was talking about that was without hearing from singapore and that was simply and if expressly to allow the court to fully consider whether a station big record should be entered pending appeal that was just and that was purely to preserve the status quo to give the court enough time remember these were became the defendants came in on emergency motions saying that they be the world was going to come to an end if they couldn't keep selling these us converters so this was simply this was i think it's just incorrect to suggest there was any assessment of the merit of government going to shut down to go through it on tower one and i think the power one summary judgment really underscores the district court's misunderstanding of willful blindness power one like the other defendants told the court that cisco needed to buy its bus converters through september for us use power power want to find it believe that cisco never told it anything different now the court focused in council focused on two things one is the supposed oral not importation agreement now even if that agreement existed it doesn't change anything because i'm cowra one version of the facts that agreement was already in place at the same time it was telling this court that it absolutely it absolutely had to keep selling to cisco for cisco to use its us converters and in the united states there the other factor that counsel and the district court focused on was the supposed lack of an indemnification agreement first of all even if that's true all that means is that there's one less additional fact showing incentive doesn't erase the other evidence of intent and it's not an undisputed fact the facts are the evidence is our one said it would not shift to cisco without indemnification agreement cisco said fine send them a proposed indemnification a written  commodity so why doesn't this play into the question asked in the very beginning about a multi player market where each individual doesn't necessarily know it's the areas that are going the reason is because that  quote was taken way out of context and in fact it was and the record is quite clear on this particular box converters have to be qualified by cisco even if they are very similar they go through a month long qualification process for cisco to be put in particular cisco products and power one bus conversion were approved for particular cisco products they were not funded although physically later it may turn out that their fungible they were not fungible during this qualification period issue here which is cisco said it would take at least until september to qualify but this isn't the new bus converters would have to be developed these are existing customers but it would take them until then duck to qualify them so you're right your honor but during that time period we're talking about