sales at about three to seven percent and i write about that now the government's expert did not address any reasonable royalty said no royalty was appropriate because all of the uses were not commercial and  for research so there was no loyalty base and no royalty appropriate the only evidence on a reasonable boil to that was put in was from our expert which was eight or ten percent but i'm not talking about the royalties  title with respect to the research study i'm talking about the future of oil right i mean beyond this time let's assume there is some commercial use or something your client would be eligible for the  revenue as well as future was the eight to ten percent that was put in by our clients or put in by our expert there wasn't any other system what constitute a reasonable royalty that was put in by the government so in terms of the answer question in what we call experimental stuff or whatever but let's just talk about the future at all with my theory that you just assume that it does matter if you do care about that because you assume that if there are future commercial sales in this case state and you'll be able to come in in the future and get a reasonable relative well i think in part your honor but the other part too is that the unique aspect of oakridge there's never going to be any commercial activity on their part their research institution ok so while this isn't a relevant issue i mean if we were seeking the future sales or future revenue for which we were seeking a royalty was to continue the existing royalty that we believe is entirely appropriate based on the research that the government has done using the invention i mean the statute fourteen ninety eight doesn't require sales the statute requires compensation to the plaintiff when their invention is used for manufacture and here that's exactly what the government debt the government used process in received forty five million dollars that were specifically earmarked to allow them to engage in the research which was deemed by the lower court to be an infringement so in our view it whatever however you characterize it we actually believe that their use is commercial under the mat a case or at least would be characterized as commercial under the medic case because it's in further into their legitimate business interests their business interests to perform research research that will then generate more funded research that will generate accolades for the research used which will then allow them to secure more funding but nonetheless even if it is deemed to be not  law not only the statute but the roche case out of this court as well as the fifth carrying case mandate that even if it's deemed to be for research purposes compensation is and is owed to the plaintiff for that use you know and so that the statute doesn't allow for any exceptions there's no exceptions for research for drug companies there's no exceptions for research for the military in this particular case when we're dealing with research for the public good there's no exceptions as well and that's made clear by the roshan pitcairn cases i mentioned the district court also where did the damages issue on another matter  its discretion in refusing to allow playing us to obtain information on certain projects that were being handled by the principal researcher dr locked off whose process was deemed to infringe the bat and it refused to allow plaintiffs access to even taken to discovering that information because it threw the burden on us to demonstrate that these projects were relevant but the government objected to these producing information because it seems that these projects were classified how are we going to be able to get any information to determine whether or not they are or are not relevant for what it is based on information if it's classified or at least they're objecting based on classified  so we have some concerns with that but the evidence that we did gather demonstrated that the information is a white clue relevant first of all we have the main inventor dr ludwig himself telling miss walker that he had  for his process the infringing process in connection with classified projects we also have him submitting reports and progress reports to his management detailing what he expects to do for the coming year in two thousand and eleven alone he identifies that his process the one that infringes on the one that we're trying to take discovery on it had application in various government projects to the tune of over one hundred million dollars in two thousand eleven alone and then we also have a trial even though the judge refused to allow us to take testimony to follow up and explore on certain information and notably he didn't refuse to allow us to get into this information because it was classified he said  was only because we didn't demonstrate that it was relevant the other inventor part of dr lloyd because team or the other researcher the part of dr like his team when asked a trial whether or not dr lago was still practicing th process is a response was i'm not sure i can answer that because the answer is classified clearly a piece not using the infringing process in connection with classified information he would be able to answer that question so the information and evidence strongly suggests that the government is indeed using the infringing process in connection with classified projects and we offered to take that information if it's truly classified within  classified or secret closed hearing and we were denied that opportunity to take discovery and we believe that the court abused its discretion on that as a while is committing a legal layer and extending the experimental use start i would like to i guess answer quickly your question regarding the guidelines and we do believe that fourteen ninety eight is different than to seventy one so yes the court has a very limited but i thought in the government you treated as if there's some license that the government tests well if you're talking about the value of the license and is the potential for future as well as current commercial sales situation a running royalties that would be a judge in a case where the government itself is already buying the device may very well be the best evidence he would ever find of what the future royalties should be and certainly i am certain that there are cases where the government has then gone ahead in and pay damages for future sales but not part of the the court may be to for instance lease sona which is kind of the case that everybody considers as the defining statute or defining case law and in its fourteen ninety eight and you know that it's kind of limited but you know obviously as a indicated also and i said i think judge moore that this may relieve some anxiety on your part is that yes we do look at the judgment and if if a court comes down with a judgment and says that the the dollar value is you know running royalty of x dollars per item certainly there's the government doesn't have a great deal of interest then in futures abends whether sales are not really included in fourteen ninety eight but certainly in use by the government if we go ahead and buy and use another device we don't have a judge did fine compensation in the amount of two hundred thousand dollars but that doesn't that doesn't count for the amount of money that's being obtained need terms of graham and so forth based on the us at is a court right am i right about that that it well it has and it has no relationship on a numeric value to the up to the compensation the i think the answer to that is as a court found plaintiffs have never shown that anybody ever pays a royalty on research dollars and there's a good reason for that because if you are doing research on a new devi then there's no dispute that in this case there have there is no use of the of the oakridge process currently commercially so they're doing  how maybe it can commercialize this it hasn't actually sold anything or even realize any commercial dollars by virtue of its use you see here you actually got a grant it's that the reason that the companies and patent owners don't generally get anything more than some kind of a minimal or flat rate royalty during the research period is because that research scholar if it's tax for for royalties then just to please your research money and and the of and that is counterproductive for most patent orders so now i think you might be on to something here because to me i will tell you that i think there ought to be compensation to a patent p c for research use of their technology but maybe the compensation isn't tied to a research agree and maybe the way this case was argued to the judge below left him with what might be a correct decision in light of the way it was argued i think my problem might be comparables that were used on three licenses which add up to the two hundred thousand dollars up front all of those were in fact commercialization listen to this and so that two hundred was the starting point but there was absolutely an expectation of commercial sales that would result in additional monetary compensation for the suit and we submit that our situation here is no different the you know when when it goes to commercialization which most likely it's develop a commercial product that will later make money off of gets to use it pretty much free and clear well i think in this case thats it the problem is that the what the court actually found is that the only damages that were proven were was the two hundred thousand dollars now i think i have different facts and different evidence the court may have have reached a different result and it and may very well have come up with some different dollar amount but in least on this case and i want to make clear that i don't think that there is a court nor the government took the position that that's the only thing that the court could award it when the court ended up at the two hundred thousand dollar amount based solely on finding that the remainder of plaintiffs damages were on proven a one one issue the claim construction issue yes with respect to the claim term large relationship correct and correct me if i'm wrong but it seems to me that your whole focus on that point the point on specific parts of the specifications why was that it was normally that's where one looks first and i was struck by that in your argument that the specifications act we readily admit that the specification actually uses the term was larsen miller very proudly and in fact i think there's one portion up against you it does and but i this assuming for the moment i realize you would disagree with this proposition but assuming for the moment one were to not accept your reading of the problem of the prosecution history or were not to give it the weight  because i think it does now as i indicate i think that creates a definite problems later on in terms of infringement and and certainly even more so in terms of the one or one  one argument but as to the claim construction argument we would certainly lose one ok thank you that's a candid answer i appreciate thank you turning then actually that was pretty much all of my my first  construction argument anyway so i took turning then to selected according to which i think is actually the more important of the two the problem that the quote that we run into with the selective according argument is that the court's definition a centrally read that out of the claim and you just have to if you're going to select something according to a factor you have to know what that factor is and you have to know what the scorekeeping device is as dr wagner called it and that's kind of where the court fell down here is that the court just centrally eliminated the according to part of it and all it had all the court had to do is find that that the results were consistent with infringement we just can't see that you know if you if you're going to do something according to a criteria you have to know what the criteria is and how to apply it and that and the courts of so limited really how does that plays in the infringement analysis well i you know it's broadened the infringement analysis to the point that the prior art which was just using vibration and thermal energy is infringing because if you don't have to know what the relationship is and if you don't have to make your settings based on that relationship start with a couple points and questions that were raised on the issue of damages let's start with the proposition as i said before to reiterate the government was never going to commercialize this invention that's not what they do their objective is to obtain funding for research and in the funding in this particular case as it is was earmarked and specifically tied for their use they couldn't practice the invention absent receiving funding as the testimony in the record they had to go and get funding to be able to in french there's no better way to measure the value of what it is that they took and to measure the funding that they received and also the costs that they spent was which was matched the funding for their use but there was other evidence in the record that i also disagree with counsel of i think the question of the response you said was that the government never argued that the two hundred grand was the only way to compensate plaintiffs that's not correct that's all that they argued plaintiffs or entitled to because the remainder of the use in their view was not for commercial purposes it was for research and that's what the court adopted as the court began to go through its reasonable royalty analysis when it got to licenses it stopped it said none of this constitutes part of the wild c based because it's not commercial which is against the statute and which is also against the law if we are entitled to know what's under the law even though it's fourteen ninety eight a reasonable royalty and there was evidence of record if you didn't want to apply at the funding there were a yearly milestones that the testimony was of a dollars a year that could have been awarded based on the use of the air the judge basically made by limiting us to two hundred thousand dollars is it bears absolutely no relation to the extent of the use it's been going on seventy eight years now and it's going to continue in the future based on the testimony that was a trial at least there was no evidence that they were going to stop using it two hundred grand is far from fair and reasonable entire compensation required under the statute starts carsley one question or respon would disagree with the according to you know which one i'm talking about where would that leave you you in the case well first of all their proposed construction of the selected according to in our view is based on the incorrect mean the infringement is based on the i'm correct claim construction but regardless of what the claim construction is the judge demonstrated inside of the evidence that they were using and selecting settings according to the ways described  the specification the specification and as also testified to by dr wagner settings can be selected theoretically by an equation also imperatively by plots and graphs of data as well as by experimentation this is in the specification testing various samples at different times and temperatures to assist to achieve the desired physical property changes and what they were doing is they were selecting this combined sat i to achieve an acceleration which is the heart of the invention as the judge found that he had to use that term but that was what the novel and unexpected result was by her process where you're combining these two energies in a way and you're selecting settings for this combined fusion process that results in these physical property changes being so excel rated from days to hours from hours to minutes that result in such substantial energy shade savings that even the researcher from the government received all sorts of accolades to the department of energy would when he highlighted what the potential benefits would be so i think the claim construction is absolutely correct based on the intrinsic evidence and maced on the testimony of dr wagner as well as larson miller themselves this is exactly how in their paper the seminal paper which defines the larson miller relationship how they selected their sadness which was through experimentation and that's exactly what the claim sow's in terms of how the settings were selected in order to achieve the success or ration by selecting the the settings for the two energies address for the last point that the government made with respect to larson meller the three ways that i just mentioned for selecting the settings are also the three ways disclosed expressly within the patent specification for determining what the relations shift this again you can do it by an equation but it's not required the principal way discussed is for experimentation in a lab setting determining what the relationship is through trial and error to determine what settings that you want to achieve the excel aerated desire for desired physical property change