morning on the nine six one patent and start with the claim construction issue which is central to this case it's a straightforward claim construction issue there's no dispute here about the term continuous process of limiting the claims the question is is what this continuous process means the proposed construction of the want to drop by the court was simply a film produced by a process that continuously cast for example by an endless beltre drum and we say that's not enough that if the specification the prosecution history of the entire record also requires this step be one as part of a continuous process know your honor i don't think so because you know there are just sort of two different ways of looking at it one is you look at the entire specification and you have to interpret the term continuous process if yes it does tell me why this is wrong i guess  right where's the uncertainty in the language continues sure first of all if we have to meet that higher standard i think we can meet the standard disclaimer here but i but again i don't think we need to the term continuous process if you just look at the words by themselves out of the context of the patent well they could mean a lot of different things so it has to be interpreted in the context of the patent and the specification provides the meaning if you just look at the naked words continuous process it could mean pretty much anything but we already have the court saying well it is limiting on the climbs and it means a process that continuously casts those words are not in the climb for example by an endless beltre a drum those words are not in the clear so we're doing claim construction here and interpret ing these words and when you look at the entire specification it requires de one because otherwise the the rest of the statements in the specification have no meaning repeatedly when i wouldn't have well wait why would that be so why why i couldn't at least and then the real heart of this is it uses the term the present invention and says this step is important to produce the film that's required there are sprinkled in there a couple of times the word preferably or for example and i think probably the state ment you're looking at is where the specification says there can be variations well you look at the examples what are the variations they are not in step the one every single example all seven of them how step be the one that's not one of the variations the variations are in temperature and some of the conditions specification says it's important to the president mentioned to have that stuff so the variations of and  very clear from a specification where it says the results of comparative example one are unsatisfactorily that says it's on satisfactory it doesn't have the dimensional stability it's necessary for the invention now the judgment stage that the court was going to use this construction and we did not agree with it and i think if you look at cases like cardiac pacemakers versus say june we don't have to repeat that objection to preserve this issue for appeal but the incorrect construction was given to the jury and it makes a difference because if you see from the summary judgment papers it's undisputed that s k p i's process does not use of step the  did not move for judgment as a matter of law on this issue and so i believe that the court process would be to vacate the judgment and what happens on remember be determined by the district court we don't didn't want to over ask for what we were entitled to if you look at the prosecution history that also confirms this particular construction throughout the prosecution those three it says that this continuous process ridges ult in a materially different product and for example the food you are a reference is distinguished saying if you don't use this step you didn't parent we get something that's not within the claims so that can't be comparative example one either there is a statement in there that says the claims are directed to the film not process but this case is already established that produced by a continuous process is a limitation in the claims court said that kind of propose that we're just talking about what does that mean and how does that limit the claims and once you look at all the documents including the specification and the prosecution history i believe that it should be interpreted to require step the one in judge toronto to your question if we have to reach the level of disclaimer here i believe we can meet it if you look at cases that we've cited like the luminaire case or the polly america is very similar to what we have here repeated times where it says the president vention and this step is important make it clear that that's what it should be also if you look at the examples the seven examples every one of them says the president mentioned every one of them has stepped the one the comparative example does not and that's rated as one satisfactory by the specification ok if i could turn to induceme use the same process without change that's not enough friend to say there has to be an intent to infringe in fact if that were all that were in a complaint be dismissed on the pleadings that's that's not enough even at the pleading stage generally the law that you couldn't use the failure to invoke privilege i mean the invoking privilege is something against you there isn't any issue like that here there's nothing there was no question about any of that and wasn't part of the evidence in used to support the inference of knowledge or willful knowledge of infringement or willful going to strike the possibility of infringement that  you didn't go out in the months following july twenty eighth and try to figure out whether you were really for as you well i think i know i don't think that's a fair inference and i think that's really the answer is because what happened after the suit was filed will suit the district court to the state and there was a case that went forward in the in the i t c right but that there is at least some evidence that maybe the product was not quite the right product so that can't be determination that we did not infringe they didn't appeal and they did not appeal that or i don't think it takes a great leap to conclude that ask a p i from have believed that they weren't infringing the idea that they somehow from a judgment from the i p c you don't infringe but they would conclude oh yes we're likely we still do in french but that doesn't even rise to the level of what a reasonable jury w conclude and that can't be enough and in fact it shows the opposite that s k p i throughout believe that it did in french in the normal course of the litigation it presented it's not infringement when the witnesses put on them that defendants are essentially i'm not simming this characterization are just reciting rote stuff given to them at a high level of generality why isn't an adverse inference trouble from that because we didn't have a burden to prove our own good faith it's their burden to prove induced infringement and that's why we say that the court went to look at it  shifted the burden they could have said nothing and what they did say is consistent with what mr song said so we relied on the i t c determination there's nothing inconsistent with that this can't meet the bare threshold i mean that's what this exhaustion issue that's a question of a law that this court should determine based on the contract there was testimony from two witnesses that cannot go put forward and they were not familiar with   the comparative claim by front by picking out of context one sentence in which the comparative claim was being compared to the other claims but they can't deny that the fine so the comparative example is another example another mode that met claims one in five it just didn't make two and four so what they're doing is taking out of a contacts a statement which you have to construe the claim the term across the entire claims so each one of one two three four and five years continuous process so you can't have it both ways if what you're going to say is there is only one example i mean there's only one mode in the patent and that has stepped in d c then you're you're ignoring this comparative example in a continuous process  what's what's the best reason that you can point to from this back to infer that the comparative example which sort of sounds like it's not part of the invention from the name is actually  what first of all when you use comparative example there's no case allowed says the term comparative example means it must not as large as myself like sounds like and that is if you too narrow the plain language of the claim a disclaimer don't have to meet that burden but nowhere in the specification does it say step one is necessary or require it merely in the best mode section says it's an important it doesn't say necessary and required and the too clearly disclaim that any other method other than claim why i have then stepped the is required to meet the claims so so no that isn't the cakes it is and that's where you have to combine these they can't pick and choose there was no disclaimer that was clear and mistake of all that said only step b must be employed and in fact when they were arguing claim construction if you look below they were arguing the comparative example didn't meet any of the claims and when we demonstrated to the court that in fact it did meet that the lack of step d d still would meet in the comparative example under claims one in five and the court said i have to consistently construe continuous process for this again i guess i'm kind of stuck in that maybe a confusion if continuous process requires step he then comparative unmistakable disclaimer that it has to be under step d but then how do you without having absolute language in the specification that the comparative example was meant to distinguish this invention consistent across the entire width of the expansion you wanted but it didn't say it was required and it didn't say that you failed to meet this do it by releasing tension or without tension you may get them best mode by step di but there are other modes that you could get and that's what the court in construing the claims was understanding that you may not get the best mode in this was under best mode step he was under bass mode section all comparative example is saying you're not achieving that bass mode so how did the claim construction  as he states was wrong as a matter of law well that's the continuous process was construed by the court as it was just to be consistent across the claims is just a project a process in which you consistently kori the varnish on and it runs so i beltre a drum that's consistent across the entire claims in order to achieve the best mode you may want to use sag but you it's still meets claims one in five so let me just say this so i guess the answer is yes and i can cite you to the appendix three fifty eight thirty seven one hundred twenty eight that step d m a comparative sample of one was made without stat they are sad and it falls within claims one or five and claims one through five all in all claim a poly image film produced by continuous process so we start with you have to establish the common term they have to be construed across the entire claims consistently and then you do as i said we didn't say that stepney was necessary it we didn't say it was required which was the case law says if you want to if you want to explicitly disclaim so they're reading into the specification things that aren't there and they wanted to read into the claims against these two positions against the rex in our case which says a common term must be construed consistently and that if you're going to narrow it a disclaimer must be clear and mistake question of law they appreciate the problems with review the jury verdict so we need to decide whether the question of love was correctly decided i didn't properly object no and here's a problem with it with not objecting at that stage it would mean that you would simply have to go back because we're not screw greening that they wouldn't infringed even if step d were the requirement they seem to imply that this court would simply have to reverse because there's no issue that they would not even friends if they didn't meet step the we didn't conceive that we didn't agree to that and they didn't make it shame on washington that's right that's right so on that issue all we would be doing is going back to see whether the judge in reviewing this again would either it would employ step d which i didn't what would require him then to be cont be consistent across all the entire claims but we're not agreeing that they still didn't infringe we just believe that the court got the proper instruction so again yeah they would have had objected that and have a jame all saying that you know with with out step d there would have been no infringement are with if they didn't do step the i mean just to preserve time could have briefly go to the zero six for wh knowledge of them frenchman and what your honor was getting to they hired an expert they did hire an expert in that expert specifically was not asked to determine whether they infringed merely just to criticize the testing of cannock as expert and that alone would be willful blindness because once you hire that expert who's an expert on infringement and you're saying i don't want to know if i infringe then you're becoming willfully there was no right to rely on that one think that without a statement that that council could and it would it would kind of lay waste to a lot of jury trials where counsel didn't need to put on more but there was more they had a patent task force that had been examining patents the patent task force was looking not just at patents but it patent applications that they expected to issue the patent taskforce  statement saying that boy we're in we're in siri running a serious risk of being sued on a number of patents they were looking at specifically can it because patents because again there are only two or three competitors in this persons most qualified on this issue and we depose those witnesses we can use that evidence of firm and of lee to show that the witnesses are just regurgitating wrote statements and they're not actually clarifying why in their opinion as they said their statement as we believe we did not infringe well that means you're making an effort to determine you infringe and if your statements are merely applied as they admitted by their attorney were given to them by the we had two experts who it's made reports depositions and declarations and all of that and all of them disagreed on what the law is and ultimately the two parties of jaffa japanese construction the two parties stipulated to an instruction and told the judge it was based on all that and the instruction is not the law that they're now imposing as a tautology they're now saying their expert would have liked the l that's what this court should follow they waived it because they stipulated to the instruction under the law so and for jayma all right we've we've said and they appropriately quoted footnote five in markman which is directly based on the supreme court's boil against united technologies and for james all the standard of what the correct law is he's not tethered to the jury instruction that he was the jam all now you have to accept that you stipulated to a jury instruction and now you you have the waiver issue because he didn't raise it in general that's my point so they just stated as though they did and then we had to argue waiver  well let's hear your answer and i'm sorry this is a racehorse but i'm trying to get it through so quickly and the injunction what happened is storing the course of post trial motions and before action so there are two steps and first in the in arguing against an injunction they admitted and we have testimony they admitted that they continued to sell the infringing products the actual products found infringe for a period of time at least six months or more after the jury's verdict so they continued to deplete their inventory part of our injunction was exactly on that the relevant time the jury deserted it was six months or something before you even moved from junction no no no no we moved for injunction the court didn't issue the judgment and didn't have the hearing for a period of time so the judgment was problem was we couldn't quantify the total amount that was always the problem we had so we narrowed it to a very specific route we could we could follow coming in but our expert said there's much more coming in and i just can't quantify it and ask a p i was of no help because they were saying we have no idea where where we goes we have no idea the jury didn't believe that they knew it came to the united states but we couldn't quantify the dollar amount so we said we were being irreparably harmed by this continuation of selling what the jury had already found in friends the judge ignored that what he said was his long as they filed a motion i mean a new complaint i have to defer to that court but to your honor that turns the law on its head so every time you get a jury verdict or a judgment if the other side merely goes in on declaratory judgment and says we've designed around whether they have or not we obviously believe they still infringe doesn't have to be any time it's a matter of some discretion for the district court right now the court didn't even get into the details of whether or not there i thought there i thought  among the reasons for not giving the injunction was that basically this matter is in judge deal for its hands now and leave it there where what he said was i don't want to interfere with that determination of whether there is a products that are not colorable a different which is a normal injunction so that you can't because and just can just just to clarify here in the u s for all of their sales that meet those two criteria to be enjoined out to whether they knew that those units were going to come into the united states you know only the products that are coming united states but the jury is already what outlook what was the language of the proposed yeah to have product that's right everything so that they making using selling of any of those products and actually would ask for a notice that they notify their vendors that they not be ultimately products that come can i read to you the the actual words at seventy six nine hundred sixty seventy six ninety seven and i'll read it to your honor directly or indirectly infringing the nine six one patent by manufacturing for  imitations of the infringing products so that's appendix seventy six ninety six or seventy six ninety seven and they had admitted they were actually doing that as just some products they didn't deny that and as a there's a poster out damages system and we would need an accounting the reason we were asking for an injunction though is our damages expert said i can't get information from s k p i on how much is actually coming in because they denied any knowledge that it was coming in even though the jury found out minutely it was so what he said was i've traced a very close system from korea into the united states that so if you're asking me by now we may be in accounting we can it we can address and but our experts specifically said and this is where they reparable harm comes i'm only getting the tip of the iceberg there's so much more th coming in but we i can't give you a calculation with reasonable certainty because i can't get s t p i as number so once you admit after that that you're continuing to deplete that i but you won't come clean on your the amount of it you should be enjoying did least from that and then any colorable imitation because we had evidence by the way presented at trial that they told their customers we product was just named something different is all of this a vailable for all appropriate remedial relief in the proceeding currently before and just go for it including the possibility of an injunction yes yes of betty it's yes specifically it would cover the redesign product again but at this point we are going to have we have to go forward on the continued sales of the imagery so the answer is yes but then the question then this is why i ask it doesn't it turn the law on its head because if you come in and say i simply redesigned are you just simply then to get the benefit now of saying i won't be enjoying from my first malfeasance i'll await the several years so i've delayed any potential of injunction i've just freed myself by claiming a redesign doesn't the court still have to go through all the factors and say you claim a redesign but let's still see of the party is injured otherwise especially by these continued sales and let's go through all the factors why should we simply take the word that there's a redesign because you filed a new lawsuit that's what turns the law on its head ok let's hear from you james thank you if i could answer a couple of questions on a comparative example right under comparative example it says the t v shrinkage is zero that means no sag that's an indication th if you look at the rest of it though it calls it a comparative poly in my film all the other examples are referred to as the present invention then it goes on to say the results couldn't be obtained with the comparative example what we have here is the fat doesn't disclose any other way to achieve the results other than step the council has argued that it meets the claims some of the claims that it does assume the answer that assumes that set d is not required so that really can't resolve it and in fact if you could meet if you could make a film that meets the claim without step d and the statements in the prosecution as three are false the statement that step the results in a materially different film that the prior art wouldn't meet the properties without step the it's basically saying well maybe we they could or they couldn't so those statements would no longer be true the only way for there to be consistency is if the comparative example is outside the scope of the claims because it's one satisfactory and does not mean step today we're ready for cross appeal yes i'm happy to address that on the cross appeal yes your honor i think it's a mistake to say that all we did was file a declaratory judgment action we did have our expert test the films and show that they did not fall within the parameters there's a dispute over that but that's not the sort of thing that should be adjudicated on an injunction aurukun time proceeding that should be determined as a new judgment of infringement so it's not simply filing the declaratory judgment action so what happens ly but nevertheless some of the old products were still being sold right at that time there is a possibility yes but what they were being sold for was for a different purpose not for flexible copper clad laminates and other countries and so those inventories were continuing to be sold at some point they have stopped completely is there a concession that they were being sold in a way that you knew destin the u s now and then you come out of that has to those units not the redesigned ones but they're perhaps inadvertent old ones sold some time after the jury verdict and maybe even at the time of the oral argument on the injunction or in those units and sales in front of judge hill for i don't believe so those are the only the redesigned films are those those films as i say they stopped on august twenty sixth in the sales within the closed korean difficulty of retaining averages but i'm just talking about sold anywhere for those purposes i understood at the time of the argument i think my question is very much like  falling through the cracks here so that the tracing of these things for you are facilities where they are career i guess to the united states of the resulting product is apparently quite difficult it is so that me which i which i think mr cain said was one reason that you explain why it is very hard to true up the damages for right something mental damages up to the time of judgment because you knew where a lot of these came from and yet if those things hard to trace were in fact coming into the united states the old products presumably they were horrified by the fact and yet you're saying there is no redress for activity at some source because it's too darn hard to trace the resulting dollar down i actually think that turns things around their difficulty in proving is because of the way this market is structure if you if you look at what p actually does it sells to somebody that is four steps removed in the supply chain from the telephone from the smartphones that come into this country that's the reason it's difficult to prove not because of anything that as p i does it's just because of this and this regime change even if it might it might have been too broad but it would among other things i think they say attach some sort of notice that these things may not come into the united states at which point the recipients of the thing as it moves down five steps or more down the supply chain would have notice of that and decide what risks are worth taking that's not necessary because on this record it shows that we stopped we stopped selling to the companies in korea that they were able to prove lead to the products being imported in the us that was stopped so there is no injunction that is necessary trying to enjoin s k p i from selling to any country for any purpose on the possibility that it might eventually make it into the united states that it's way too broad and that's an extra territorial injunction right now if if tied to into the united states but on the other hand maybe it is s k p i doesn't sell into the united states it sells to what they were able to prove this closed korean market to two companies that is to the to the district court say in court and denying the request for an injunction one reason is that they requested one as overbroad i don't believe that was the reason i think  it focused on the redesign films and the fact that those were going to be in front of the other district court judge and if if that's not what they were trying to enjoin then it should have been an issue but obviously they were trying to and they were trying to capture the redesigns films ok thank you continued to sell the inventory and that inventory we had traced into the united states they're talking about the bigger picture of now with this redesign process they're claiming it doesn't have that same route so that may go other places we couldn't quantify it without an accounting but at the time they admitted it they admitted they were selling the inventory in the same process and it was coming through they wanted to deplete their inventory and counsel was fairly i mean he was the woods i want to say on his because he's honest all the time but he was direct in saying the judge did not rely on you know if this might go elsewhere or redesigned he was specifically understanding it was still selling the infringing film that the jury found he was just pushing that to judge go for it because they had filed a counter so there isn't something falling through the gap clear