ninety four it was viewed as a natural act something that was counter intuitive if you cut up baseball jersey of basketball into tiny pieces you wind up with scraps at the time of the invention it was there was a deep and long tradition more than just a deep and long tradition that memorabilia items were to be protected that their physical composition protected that there was to be no damage to them you must be an item valued for its connection what about the beatles reference with the sheet that john lennon slept on the sheet that john lennon slipped on was memorabilia are wrong but it didn't teach it's a good idea to cut memorabilia and attach it to a trading partner in fact it was done in one thousand nine hundred sixty four thirty years later not to tried that again it was an experiment in that direction let's see what happens if we cut out a iraq that sheet of stationery didn't solve the problem bought it to city known believe it was authentic no one believed that it had the real value that you want to do that again so that experiment failed a failed experiment doesn't teach keep would anybody think if i stuck it on a trading card before anybody tried it that that would result in something more valuable the supreme court your honor in precise synergy there was a tremendous synergy here instead of wind up with  material in a trading card and put them together we wind up with trading cards memorabilia cards that are literally changed the industry they drive all sales it's necessary competition in the industry the primary predictor of whether trading our product will fail or not is whether or not it has memorabilia cards in it and don't protect it that no one expected that when you cut out a tiny scrap of material put it on a trade card that will be perceived instantaneously it around for literally decades every trading card manufacturer has our energy department they're looking for new products they all have memorabilia items there they all have scissors and they'll be said let's cut one up and put it on a trading card and memorabilia at that point was getting price so that the or average family couldn't afford it so there's a need for them to have a way to have never believed it could be affordable to the average family could be distributed to the masses nobody conceive of a way to do that this met that need but about the prevail they have to prove that this combination would have been done it would have been obvious but all the factors point the opposite way if you look at the again the objective indicators i mentioned longfield need how the training hard industry how did the memorability industry we act when they saw and they say yeah this is obviously a good idea no the record is that they were very skeptical this won't work sick crazy idea it's lunacy one train car company after was introduced everybody by the inventor that's not the invention is not a method of how to put two things together it's the combination of these and nobody expected that you would by destroying a memorabilia items actually create something that was equal or greater value much later about so that's what wasn't expected what wasn't going to work after it had been introduced i mention the commercial success millions and millions of memorabilia cards and millions and millions of dollars in profits and on the ultimately recognition by the industry he was named as the most unique product of the century i'm not aware of immediate this is by the leading trading cards publication beckett declared the most unique product of the century and was recognized by the defend itself they called it revolutionary they describe it as an unthinkable combination allow that and with this issue relates to your honor is expert reports were filed a certain time later the plaintiff's expert had additional trading cards that he wanted to the pine upon and submitted a supplemental opinion and the court included that should not be done the standard here your honor is whether or not there would have been prejudice to the opposing party and the evidence is undisputed that there would not have been opposing party to let these infringement opinions in the absence of prejudice is to factor for an expert of the cases it's law describes the first is whether there would have been the build your time or to take  deposition of the expert the second is the ability to prepare rebuttal reports for the defendant upper deck agreed in writing that they didn't want to take the expert's opinion even our experts depositions even after getting supplemental reports that new questions to and the at the upper deck also agreed that one month would be sufficient time to prepare a bout of reports at that point they had four months to do it so there was no prejudice and they also agreed that when they filed their motion that if there were continu issues involving to abuse of discretion using stream the rare and what it requires are unique facts where the facts underline it or undisputed on the legal issue that matters here the facts are undisputed there was no circumstance under was really so late in discovering the new evidence that appeared in the expert report well we describe that in our in our bridge or on or in the issue was that we were waiting for a project to produce to us documents and they failed to do it said they were trying to run out the discovery clock we got the documents late particularly documents that pointed toward the value of these very straight course years now we don't rely on what wasn't available publicly this information we could go on a website and find out you know somewhere by doing research any e card the world you can do that is no question about and that's why we don't say that listen there were substantial justice what we say is there was no prejudice to start in order to preclude these the court would have to rule that it's hard not want to grow in a different area baseball fans will tell you these cards have been around since eighteen zero seven in two hundred years and no one has put any memorabilia on them no one is used a chase card idea why isn't that pretty revolutionary indeed it's extolled as revolutionary by everybody in the business why doesn't that convince you well you mister chase card here that insists two hundred years nobody puts memorabilia on this thing somebody comes up with that idea and you don't acknowledge it well they didn't have chase cards until nineteen right there memorabilia stick with that claimed invention two hundred years isn't done two hundred years is a long time for something that post could be obvious to not be done if it's obvious it should have been done  do it they're certainly him and in order for you to prove it's obvious there has to be a motivation a commercial success a lot of opportunity here so somebody is obviously going to do it in eight hundred ten eight hundred eleven right sixty at least so i can capitalize on the roger maris idea i'll get one of his bats he had sixty one home runs i can find i can find one of those bats tear it up and make a lot of money well that's what that's  what we're doing i mean it wasn't a baseball card it was an entertaining tar but it needs the same resident memorabilia it wasn't on the bill it was a seat that was actually slept on by one of the beatles it was the same i that's not a trading card though is the point and not a trade in tar nobody is that it's entirely different industry we're talking about this industry and this art this field and how obvious it's going to be percent body to jump on this idea and make a lot of money  nobody did per one hundred ninety years it is the same industry it's making twelve to bowl it's just everything that's memorabilia too wide why didn't anybody do it then repeatedly afterwards if it's such a good idea well it wasn't why didn't they do it in a baseball card industry where you'd really make the money well because in the baseball card industry people won because it wasn't in obvious because people were not using these insert cards until hundred one within a couple of years we came up with the idea the fact is that the patentee said here that the problem that he was trying to solve was the high cost of memorabilia wittier fully solved that problem back to what he says it should certainly doesn't make much sense to me to slice up roger maris as bat that things bastard value was a bad why am i going to slice it up into little pieces well it's the same thing with they slipped up a sheet that was slapped on by the beatles they destroyed any aura of authenticity that she had for the same purpose of distributing lots of little pieces to many people to drive down the cost and to enable the person who is making with a torrent and once again i come to you and say if that was so obvious from the john lennon sheet why wasn't it done in the baseball industry well it's the way the industry works itself it's undisputed yeah for a hundred ninety years they didn't do it and you're having a lot of trouble convincing me here if you have a good answer to the hundred ninety years you've got me but one hundred ninety years is hard to answer isn't it i don't think it's hard to answer because that's just not the way the industry was working you didn't have these individuals who are rather obvious you do not do it nobody in the industry would have thought to do it because whatever reason the industry didn't work that way you say what years and very regal argumentation that well this is a secondary consideration i mean this piece of prior are wittier is within the field of endeavor it teaches the solution to the very problem with the patentee it was supposedly trying to solve and it's sitting up in the walls of his workshop and it's obvious to combine it with innards white wires even taking  doesn't anybody do it for thirty years then in the baseball industry where it's really valuable they had no way to sell it i mean to mimic someone did it it was foul uble it was valuable because you were able to distribute it in random packs and and that was the way people were mass producing these cards you would have to individually make these specific cards just like mr whittier did just like people were doing these individual insert cards they were and inserting them into perhaps there was as a way to distribute and sell these things where there wasn't before and nobody was going to sit and slice up a bunch of number a billion and make it into t cards a whole bunch of other different kind of cards that they were using to try to get people to purchase the pass but that was the invention of the chase card in one nine hundred ninety one is what mabel people to sell these memorabilia cards where they were going to do it before expert declaration mr taylor said it's very it when people start i think i can cry and an article of people striving to get babe ruths a gars they thought that his partially smoked cigars were very valuable i i have the memory story written to that effect i have not read that but i recall media tax expert ted taylor remarking that a gentleman in philadelphia acquired almost all of his collection merely by asking baseball players can i have your jersey can i have your baseball back and i have your club people did not associate the value with these things and so he acquired a multi million dollar collection for not because he would simply approach a player after a game and say do you know can i buy or can i have your jersey can i have your glove now can i have what's your best record i think the best right friends is the way to your hotel reference or the marilyn monroe reference if it in mr kelley very monroe's not memorabilia and the whittier references in the trading card i understand however if we look at marilyn monroe the only differ it's between the marilyn monroe card considered it took one hundred ninety years to come up with this or even if you want a day to prove the sixty's when the memorabilia fever hits a little harder thirty years he consider that yes i think the district court  mr taylor's declaration in front of it or mr taylor said in great detail that these things simpson really work collectible more came for free by this gentleman in philadelphia who later liquidated his collection for two million dollars so i mean that gets back to this this whole notion of unexpected benefits and media tek says that you know this combination of trading cards and a piece of memorabilia had the unexpected result that consumers automatically accepted as authentic a piece of otherwise  whatever mr taylor arrived at that conclusion without speaking to a single consumer first and foremost secondly that bottom didn't pay yes they bought them but he did not have the kind of  test authenticity right whether you'll buy it or not well but we don't know why people bought a package of cards maybe they're a football collector who favor upper decks cards maybe they want a signature part maybe there's a give away for super bowl tickets this is a mixed motivational purchase and we don't know there's nothing in that record that indicates why any consumer would purchase a particular pack of cards much less because of the claim subject matter time we're not talking about yes that's right we're obvious at the time but none of the asserted claims of the five three two patent so much as mention trading so there can be no unexpected results or anything else with respect to second elemental value really what mr devoutness is saying is that if i go to a flea market and i see it babe ruth trading car it's got a piece of fabric attached to it with two sided tape that i'm going to accept it as gospel that somehow or other babe ruth claim say an article of memorabilia shown in both of the patterns for the baseball player with the bat right that's right where a piece of a little hard to get this out of context isn't it yes but the piece of a baseball bat and nobody's asserting it against anything except you a baseball card person right well you know you want to be some more than just or play off before we went out of business we saw more than just baseball cards but the whole baseball card business we're talking about here no  claims for example in the five three to talk about a piece of a soccer ball a piece of a hockey puck there's a variety of different things that are involved here so but if you look at the disclosure of both patterns they talk about the item protruding from the part of the carrier and that was not commercial i could not be commercialised rather no one would except a piece of material sticking out from the card because it simply could not be mass produced is that the claim subject matter what mr what the inventor is came up with here the inventor singulair was something that could not be commercialized and any commercial success has to be attributed to what that treating car companies did in coming up with a method to package the member billion card in such a way that it could be mastered i recommend you get an improvement patent you can license from them and i'm sure you'll do billy well commercially i understand your point you honor however this is not about if you look at their patent this is not about trading cards so it's been sat and so forth there's nothing in the plan itself that talks about selling trading cards as sheet don't shit they did cut that up and they did put it into some kind of form that might have bled and run to trade it even nine hundred sixty four were on of it put it on a piece of stationery and it failed the key to the invention is not the certificate of authenticity of it's found on a trading card there was a certificate of authenticity in that piece of stationery the key to the invention is attaching it to a trading card where's the record shows one of the collector picks up the aura of authenticity from the trading card and automatically except that it applies to the piece of memorabilia that is a a in opinion of our experts explained in detail it must be suggested that that's a good idea they don't point to any they don't point to any reason to combine cut a piece of memorabilia the trees are moving over our global number of wealth you want exactly right and even when it was introduced it was thought to be a terrible idea even was introduced people were skeptical of it and it was surprising that people found greater value in a scrap and honored in a five ball tiriel when it's attached to a train car carpenter appearing on behalf of mr jerry douglas mr douglas appeals the decision of the united states court of appeals for veterans claims which held that mr douglas had not shown that his award of service connection was based upon the service department records that had been this question deals with the application in of this regulation in every situation not in this specific situation in this specific situation we believe that it applies and it applies because of the v a s interpretation of its own regulation as published in june of two thousand and five prior to the issuance of the board decision in this case doesn't one fifty six see require a new record that could have been discovered earlier no your honor it requires a record that was not previously considered in the v publication in two thousand and five at seventy fed reg thirty five three eight eight three eight nine the v a gives an example that if the v a itself had in  possession records during the prior adjudication but did not associate the records with the claim before the final denial then the evidence would still warrant reconsideration and retroactive evaluation of the disability now that's precisely what was required in this case and what did not happen because the court below relied upon a misinterpretation of this regulation by suggesting that the order had to be on the basis of those records certainly it contributed to the ultimate determination but it didn't have to be the basis for the a war of service connection it simply had to be something with in the service records in one thousand nine hundred three when this matter was considered by the v a the v a did not was missing from the record one thousand and eighty three that was available at that time while i'm not sure it was missing your honor but what was not considered was that there was three said that there was no medical evidence indicating any treatment for his back that means that when they read these service medical records they looked at the service medical records only for treatment they didn't look at the service records to determine whether there had or had not been an injury the predicate for entitle them to service connection is an injury that occurs in one thousand nine hundred eight the board of veterans of feels when it both branded reopening and found in title of the service connection found that the service records did indeed indicate that there had been such an injury during as a consequence of the provisions of three point one five six c were triggered and he was entitled to the benefit of those regulations for a retroactive evaluation of whether or not he did or did not have a back this ability at the time which he filed his one thousand nine hundred three claim and then what the appropriate rating would have been until the time that he pocket about a well and that is one of the problems in this case and in many of these cases with understanding exactly what it was that was in the record there is no way of ascertaining specifically what was in the record and for that matter what the board relied upon the board in one nine hundred ninety eight was the one that kate is that there was evidence in the service records of the injury to the back now obviously they extrapolated something from those extrapolate from the fact that there was an injury to the back now this may have been in relationship to the other late evidence that had been received but that's precisely the point of three point one five six c it is a remedial beneficial regulation that says to the veteran if we didn't properly consider your service records even though we had them in our possession and then we later reconsider them and award you the benefit then you will be entitled to a reevaluation of your disability back to the date of the original plan that's all this particular case is about and all the interpretation is about of how to interpret the v a s own regulations the court did not defer to the v a s own interpretation of its regulation instead the court below decided that it were really into the regulation something which doesn't exist which is that the new evidence must be the basis for the a war that's not in the regulation that's not part of the v a s own interpretation of its regulation the v it the court below relied upon a misinterpretation of this regular and his friends his friends delay stated absolutely honor and that new evidence is what greg it seemed a service connection not something that was in the record and not acknowledged before but your honor there is no requirement for that in the regulation and it's the v a explains its own regulation it explains that it is the v a s receipt did we have them or did we get if we had them where we had that got them and we hadn't considered them in the original decision which they did not do then the benefits of three point one five six c become operative very much  and i'm going to read directly from the v a s statements in the federal register specifically quote this exception three point one five six see a prize when be a receives official service department records that were unavailable at the time that be a previously decided to claim for benefits and those records leave v a to award a benefit that was not granted in the previous decision so it doesn't have to be those records it does have that be it least  connection those records that were previously unavailable the board and the court the veteran's court found as a matter of fact that mr douglas as a worker was based on his newly submitted evidence his doctor report testimony of a colleague from the service and his own testimony with his wife and not upon the service records that were first available after the v a s original decision mr zogby says challenge appears to be to the facts found by the board he suggests that the board's nine hundred ninety eight binding must've depended either on new records or new consideration of records but that flies directly in the face of the factual findings of the board and the veterans court and of course th court does not have jurisdiction to revisit those factual findings but as a matter of legal interpretation here this morning said i was urging the court to set the v a s own interpretation of it regulation and that interpretation as i just read  from the federal register requires the word to have been based on a new record and were not in the v a s possession at the time of its original decision and the board of the veterans court clearly found that is not what this work was based on unless there are any questions from the court that's in our present an argument this morning thank i can see that in the public notice that the v a offers two apparently contradictory positions the one that the v a just he stood up and relied upon and one that we have  in that case your honor the benefit of the doubt needs to be resolved in favor of the interpretation which most benefits the veteran this is a remedial regulation it should be allowed to says and echostar should not have been expected to read it that way the phrase infringing products is most reasonable and naturally read to me and products that infringe this was in order to disable the following eight model numbers now we know that that can't possibly be what it means and we can look at it on the job hundred sixty two of the injunction of the joint appendix the very next sentence uses the same exact formulation so it's one sixty two right at the bottom now it's on the enablement point and it reads the d v r functionality i e disable all storage and heroes but i'm saying why didn't you just appealing well rather there was no reason for anyone reading this injunction to believe that infringing products meant anything other than the products that range in that sentence the infringing seem to be all of the functionality eg as it existed in the device at the time not joe design around which would have been a very unnatural reading particularly because tivo never requested any ban on designer rams in the context of this case tivo said that it was asking for in order to prohibit infringement nothing more nothing less actually citing  tivo never suggested that there was a curse on the hardware never saw a recall of either of these boxes well they never saw the recall of the boxes never offered this recall like theory that the later the power to do the lesser included the power to do the greater instead and the district court said nothing about any of these notions so then turning to the finally one of the question of waiver because there was no reason for a imagine the conversation mr downer would have had with this court at the time he would have come before the court with all the issues in front of the court on a very complicated case and said your honor is this injunction is too broad because it illegally prohibits not infringing content and this court would have said well mr downer as anyone interpreted that way as anyone asked for it and he could the functionality is defined in here and all means all please make sure there is no ambiguity court of appeals and we could have done so with a stroke of the pen and said in printing is all you can be infringement provision for a minute don't you really have to reboot your theory entirely from what you were before to when i do a runner on one particular aspect of it switched position but i'm just asking you if we had a point you have switched positions your honor and privilege reason we had a jury verdict against us that told us we lost on that orchid and there's something very unfair in the district court's opinion in but no one made the argument that the word parsing meant something different in the two claims and in fact both tivo and activist are took the position that this is one invention the words mean the same infringement does not contest that those features are now gone you know greece we posed a challenge to tivo multiple challenges how in the world can you claim that the redesign was essentially the same when you now have to turn to different features invoke different theories and prove different facts in order to prove infringement how can you say that there are no open questions of infringement which is to say all questions of infringement were already  analyzing parsing video and audio data under the construction of the court means parsing video and audio data and the mistake that the district court made was forgetting that what's supposed to be  your data but again this is an open question of infringement now we're now talking about a totally different feature from the store code detection which tivo it cleaned in the original action performed the positions on what is it is identifying as the parser which means that that question couldn't possibly have been adjudicated against echo star in the first proceeding different but they were different enough to defeat an infringement claim on five separate theories so he does twenty eight twenty nine or blue green we list ninety reasons why these devices are not essentially the same tivo mainly says that all of those are relative or relevant but does not really engage on them mistakenly concluded that removing a feature does not implicate claim terms and just because the name of that echostar used for that feature does not appear in the claims well  of course wrong these features start the detection indexing blocking word implicating the claimed terms they were the basis on which echoes store had been found to have infringed in the first place if they didn't implicate plame terms there could have been no finding of infringement if there are no further questions i'd like to reserve the remunerate time for a while like yours actually they please the court the trial judge who presided over this case for well over five years has written a careful detailed opinion finding echo star in contempt of two independent provisions of the injunction but he could not have ever and joined anything other than in printing khandaan could he he has the authority under two  and i'm quoting the statute to issue an injunction in accordance with principles of equity to prevent violation not of any patent but violation of any right secured by a patent on such terms as the court deems reasonable and this court has on occasion and we're talking here about whether the court abused his discretion in concluding that with this infringer but is this anyone ever going to interpret that to be anything as your questions pointed out to disable all d v r functionality with respect to satellite receivers some of the functionality is not infringing well that's good at the time that the injunction was an issue the court that found it french made both of the so called hard work claims claims one in thirty two that dealt with the media switch in the software claims that are issue here we made a request to the court that in our proposed injunction which is on page seven five five zero of the joint appendix with respect to products that are already in subscribers homes that echostar leases to them that there be a disabled of the software that are off the phone should ality that provides d v r functionality this is a company that provides principally satellite reception service we asked for that we also asked with respect to boxes that are in inventory and warehouses and cetera et cetera that they be destroyed now there is no it was no question whatsoever that the vision that the judge understood what we were asking for he provided what we were required and although it is not relevant to the supreme court's decision in traveller's echostar well understood what we were requesting it actually put in its tend to which echostar included in the joint appendix language that says we've just lost the trial we're going to have to litigate the scope of the injunction and tivo is requesting that we disable all d v r functionality in the machines that we've place i see nothing that makes it clear that you had to make a hardware fix go in and literally remove hardware when all of the imprinting conduct could have been taken care of with a software beam down asked for a removal of the infringing d v r functionality which is accomplished by software and we said and judge it's at page products but in light of the particular facts of that case you will proved it in footnote thirty one of judge rules decision for the court in johns hopkins versus selke road with respect to files of stem cell material that had been created or through the patented issued had never been shown to infringe but as you explained in light of other conduct of the defendant in this case the trial court was within its discretion to order the destruction of that material now i can see that this is a bunch of usual provision that is tailored to the very unusual facts of this case and there was a time and a place to seek modification to seek clarification to appeal and echostar made a deliberate tactical decision to do none of those things when it came to this court to seek a stay of the injunction that judge folsom issued the first time it filed state papers and merchants the state papers in this court that was all about this injunction was going to make us you know stop using d v r functionality is going to cost us more than ninety million dollars a month after all the supreme court dealt with a provision that went to the subject matter to restriction of the court the supreme court said mr west may i think we've got the point that i'm reading from the place you put me  reprogram and disable the infringing d v r functionality and all units by updating their software be a soft satellite transition transmission to right now that was in support fission if i can just direct your attention while you have it how does that require a hardware alteration it does it we weren't asking for hardware alteration we were asking for and you can to get it on actually have to read back and forth through each other i did i just let me make the following point with respect under travelers it is too late far too late for a collateral challenge to the scope application or interpretation of this provision travel it is also entirely irrelevant what all of these briefs and oral arguments said about this at the time in traveller's the parties came to the supreme court and said look there is substantial evidence that no one understood this were to apply to travelers own primary production justice souter writing for the court said that looks right you may well be right about that but the for the brazen those claims is over the language of the injunctive order is plain enough that if there were an issue this should have been raised before and this is this is a  the question certainly now is whether or not they can seriously contend that no one could hear or read the terms of this injunction to mean what it plainly does mean that is that there was no possibility they could ever have imagined that they would be asked to do exactly what we asked the court to direct that they do one piece seventy five fifty now if i may and i don't want to cut off questions on the disabled provision but i don't want to be imprinted like to talk about the infringement present positions as well because you have to flip your position here too don't you not at all duck the issue at trial the overwhelming issue of trial dealt with the media switch in claim one claimed one would choir's that the device had a media switch that parses and separates the audio and video streams there changed from then to now and be they do in a wise video and audio data from said broadcast data that finding i'm going to explain to you why it's correct it is surely not clearly erroneous when every single expert at the trial conceded that either proclaimed it or conceded it now with respect to again i think we need to put in context the point the judge  was made the main feature of the first trial the overwhelming feature of their so called herculean work around and their lawyers letters in their thousands of hours of time dealt with this media switch we created something that i call the genius of the invention when i was arguing before this court before and there was a system in which the the media switch would create a logical index of star codes and bad would go into the hard drive along with the actual data and assist a low cost consumer d v r you are trying to avoid the p d filter prior are right no not at all i mean we could do was that the p id filters the pin filters as i gather they call them in the industry are ubiquitous they have been around for ever they are a while allowing us some one to device to take a multi stream mp to transport stream that includes up to a dozen channels and lots of other information including software and say hey the user wants to watch i love lucy on channel five at two o'clock it what the pin their dogs and there's no there's no dispute about this with like most electronics business there's no dispute about what the software of the hardware does the entire melty program and a transport stream goes through the pin filters and the pig filters pick out the from the entire flow of broadcast out of the pink out the audio and video segments that are associated with i want to see at five o'clock on channel five and then seven that otherwise the question was what they were set the question was do we have a media switch that parses and separates them to the meaning of claimed one we said we do we build this logical index that separates the two logically and date it's created by using a star code detector which looks at the segments that the pid filters identified and finds the star code for each independent identifies those pieces of water you know in video segments that are associated with ai what it is all scramble before it gets the pid filter it's it is some of it is scripted and some of it is in script there are some scrambled channels and some scrambled shan't be audio and video data is clearly scrambled before hits the pin it is not there are some programs in which there is some part of the mpeg segment that scrambled and some parts that are but the point is that surely judge folsom was not clearly erroneous in concluding that the pid filters did exactly what every single one of their experts said i mean if the pit filters do not be analyzed broadcast goes through the pit filter and it filters job is to identify those audio and video segments that are associated with a particular program everyone agreed that that is pars the dispute at trial was that it doesn't involve separating an audio and video stream thus start code detector and the index did that the jury did conclude that are devices because they did build this logical index did infringe you were first on the ground that separated which is the claimed term that was an issue actually require physical separation and not we know what the jury found we'd have no there's no way to know what the jury found except that we were right but the question is under k s down both step one and step two of the question it is whether or not  a substantial open question of infringement in light of the claims as construed by the court and beast in this instance there are two claims elements they were both construed they were not appealed and the first on the disablement provision back in two thousand and six there was no reason at all for a judge to say to activist are you or a recidivist you need to be disciplined in a particular way which is what the spindle fabric case that mr waxman talks about says there is no reason back then for that just record to exceed the boundaries of the patent act which says to eighty three says that this is for preventing infringement secondly back in two thousand and six tivo never said we need to ensure that echostar never designs around with respect to any devices and certainly did not say that with respect to has to have two different meanings for the words infringing products depending upon where they show up in the injunction they can't possibly claim that it's reading is clear next whole on the need to compensate for past warm and two eighty three and johns hopkins which tube just cited says exactly the opposite and i read from johns hopkins and injunction is not to quote fashion a meaningful remedy for past infringement and quote to prevent a party quote from one fairly capitalizing on its infringement and quote finally  you remember that i do were you given an opportunity to explain i'm sorry this is on page thirty five forty two of the record well you could tell i was a little bit frustrated with the yes or no format so no i wasn't that on the next page he says and so  but this is the key just because they're all these are words used to describe this conversion process you shouldn't confuse that with the claim terms which by the way is exactly what the district court judge did is colorable difference alice's he stopped at the notion of forcing a judge greater absolutely right you can't stop there the question is not does this analyze something it's does it analyze video and audio data i if there are no further