these argues that mr lee quote refused to comply with local rule three to six were in the record as it stated he refused to comply as opposing as opposed to saying it doesn't the damage done by what you characterize as judge kronstadt erroneous curry instruction was quote incurable in spite of the fact of the later curative instructions where's the motion for satisfactory to was except for the fact that this court judge instructed us he ordered us not to break even both the destruction was amended to be more consistent with just airbags claim construction order he still instructed us not to bring up so your honor one of the things that i want to bring up here is that judge perry back made a statement against what you just said seems to be a claim construction or even that which you didn't preserve for objecting to the instruction what you're saying is if we don't take advantage of the novel feature of the invention which is the relative rates of the turret in the manifold if we hold these things together with the spring we're not infringe but it of what i asked for in the instruction was an instruction that indicated that the that claim requirement should be should be read with the common meaning of the words just the terms that are there as judge paragraph indicated that jury should have independent weighing of the device i think the evidence should be presented with a jury i think it was intentional that to do the the deterrent in the device without the spring was weighed in the trade with the device with the spring was not  weighed it was sort of made an argument that was put forth for the jury saying well of this one this one is heavier than the manifold so you need to presume division one is also heavier than the manifold there was no substantial evidence to substantiate that that that assertion you're saying  claim language is very specific to the turret has to remain stationary because it is heavier than the mounts for similar reasons given the physical one with no sprint so they could themselves hold it in their hand and see if it remained stationary since there was no spring there's no other thing that could have kept it stationary but for the have it your way along isn't that enough for substantial evidence for them to decide that that plane limitation is what i think there are other reasons stage but isn't that you are ok but in that you're a geisha come forward with an even if there were other reasons it could have i'm revealing the jury fact finding not to determine whether i think it is correct or whether the record contains substantial evidence to support it and the fact that they had the devices increase in self determinant seems to me to be substantial evidence even if i think there is evidence on the other side i still have to affirm that would only were they supported by the record given both the result and on the record as it stood at that time well at that time the claim construction order that was issued by judge perry and her language  argument in mind how my front door i like to keep people out so i have a lock at the doing out i also have a dead ball aren't they both operating to keep people out and your thing well the claim says the lock in the door had to keep people out and here we've got a dead bolt to keep people out of the lock at the door is still doing it too and i think that the reason you're struggling here is literally put forth the evidence that your heav target is holding it stationary now you may disagree with that evidence that it was presented to the jury and you're saying now we've got it framed holding it stationary and it's kind of like my example of the two locks on the door both of them are independently performing the function we have how could you explain to me in a way that i can understand how i ought to throw out the jury's verdict that the heavier turret is what's causing the stationary  going to my point they have the evidence available to make that determination did they not if they didn't have the parts available i don't think that would have been able to make that determination without a scale of unbeliever scale was available to  convince the jury that the turret was not held in place by the weight of the turrets compared to the map why was that one reasonable for them to argue that to the jury they got the the weight was sufficient to maintain stability so why was it unreasonable for him to argue to the jury that the weight wasn't sufficient to accomplish that what the judge said was that he was never precluded from doing that of a and that was not reasonable to make that ar he could argue that the weight of this of his tire was not sufficiently heavy enough to hold it in place without spring ok can i make that argument that would be a reasonable argument to make i don't agree with what stuck out had in the south and how can that argument then be objectively unreasonable since he's just said it was reasonable i believe he could make the argument i believe the evidence would object to really discount the argument as being an unreasonable conclusion me can make you can ask a jury a reasonable ma n to come to a conclusion which is in your favor though it's not reasonable there's nothing wrong with making the argument but that doesn't mean that the argument this is for a reasonable conclusion provides a reasonable conclusion well if the jury didn't come out the other way would there be substantial evidence to support its conclusion that had the pipes that matter reached a different conclusion adverse to you right the jury could have come to that conclusion i don't believe that that you can see the holes in the place just same as ourselves holding it in place is defined by the disclosure in the patent the parts of his pipe in our pipe are completely identical  pipe was measured and that became patent application so in a sense the pan defines that two parts having these parts with these dimensions and these materials that hold it in place that's one definition  without the assessment being me about the weight ones that were given to  you're supposed to understand the record so that when you come to the arguments you can help us by showing where it is it isn't sufficient to say to me or someone i could supplement that information but i guess what i'm trying to figure out is whether there was actual testimony that the difference in weight created the stability or the jury had to reach that decision on its own by examining the pike of the points i think which is important here is that a lot of the arguments that have been made by opposing counsel have really ignored the the meaning of the claims for example there is the argument that the ball three applications and nine able meant we have three applications on your best mode but there's been no evidence on any of those points and it's no completely speculative type attacks over and over again starting with losses at work when followed by repeated dispositive motions during the course of pretrial motion practice followed by post trial motions all on the same issue  we had on top of that threats to report my co counsel and i to the new york and california park for a speaking to third party witnesses and it was absolutely proper behavior and says in its decision that the threats were about speaking to defendant's customers those are the same as the third party witnesses yes your honor that's who i'm referring to  that this whole business about the infringement intention infringement contention never changed the type first of all they also said we provided no evidence of of the pipe without the board springs we showed  and the this business about the infringement contention the products are identical the intrusion contention has always been that this product infringes and the position has always been that adding that the index not recognize that are not identical i'm holding them in my hand  difference was on the order of about fifty fifteen grams so do you think the jury fellini's could really decide which one was lighter and heavier i sure can hold them that were two hands is that maybe to put if you put him in the same h the argument that in that case the turret wasn't heavy enough to cause it to remain stationary objective leon reasonable because that's the standard that you have to me to satisfy your willful take the pike and they could look at it so they could see their virtually the same and make a conclusion that one would would operate the same way as the other will jury find that's a nobody that's the premise of the question is that the jury determination was reasonable why does that make their continue to defend themselves and argue to the contrary under reasonable i thought you were agree earlier that it was not unreasonable for them to argue that the worms for infringement were not satisfied in order to get exceptional case you have to show that the argument was unreasonable it's not sufficient to say well the jury was nice people and reaching the contrary kloof highfield yes i think if you look at the parts and you see how identical they are down to very very fine details and if you think about what's going on just of would never experience you would know that the you know if you think about something really heavy and they've taken when you push it  it's kind of hard to move and then think about a piece of styrofoam on the table and push it that's kind of releasing them i think the jury have plenty of evidence that something a question but that the differences are so fine so far your belief that this little exactly why it is objectively reasonable for them to make the argument because the differences are so fine what i'm saying is the differences between the pike with the extra hole in it for the parent and that the plate without the extra ball for the bone spring are so fine that to is to argue that it's going to make a difference in terms of the operation you know it's not a piece of styrofoam with a piece of l which would make a difference that's obvious that can i ask a question factually so the fact that it will fall that was found resulted in the judge lot of trying to damage awards to one point seven five times the jury verdict right to the penalty was three quarters more than what the jury awarded that right that's correct and there was also a finding of attorney c in this case was that finding on the attorney's fees because i understand the judge did also predicate your turn feel ward of litigation misconduct and that can be an independent basis right it's true but we can't be sure can we be sure for the record i don't think so i think he was he was looking at the actual time that was spent on the case and he accepted all of it that he thought was appropriate to the critics and he did reduce the one of the attorneys  and boy life with the two of them together it makes me want to get overturned but maybe i hate to say it but if you lose the willfulness here don't we have to set it back and say would you do the same thing on attorney's fees since it is discretionary prong and if you fail to meet that all of the subjective reasons don't matter because you've got to satisfy both from right and i think where the products are very literal copies of each other and as the differences arise fine as they are here i don't think there was an objective likelihood of not infringement i mean to be the test is it's an objective likelihood likelihood that these products infringed and i think when you copy something down to the finest detail and you you copy all the advantages of the invention and again one final point the the heavy the heavy  light manifold how does this language coming come about when you hold this type if you make it all out of aluminum it's nice and light it's great but it will get hot and it will burn you and it will taste best if you make it all out of brass it will not get high it will not burn you it will taste good but it will be fed to the essence of what's going on here is the idea of moving in the modify the the turret in the brass because it absorbs the heat keeping the bottom light  anything and they miss the point he looked at the difference in weight maybe it wasn't the most elegant thing i wrote to claim i might have said the the chart was made out of a material which absorbs heat and the manifold was made out of something it was like but he didn't do it that way he was to try and i'm quite concerned with the court's findings of litigation misconduct and decision and particularly with what mr handled discussed about threats to report coun the state bars of california and new york and with the court in its decision point out mr handel could point to exactly what he said but the court says that a pparently you particularly said you would gather declarations from customers to prove improper conduct and the court then notes defendants have not produced any such declarations to this court if follows it appears therefore that they did not follow through on their threat or if they did so they were unsuccessful in obtaining evidence to support their claim to intimidation tell me about th that that entire situation resulted from phone calls that i had received from my client as a result of phone calls that they have received from a number of their customers indicating that they were receiving calls from from  was so then i communicated with police council within the evening and i said i received this information it is troublesome to me let's talk about it over the phone and then we had a discussion and at that time he had agreed to back off and not do that again the list was formally you know with a quarter of a room on letter and so then i said ok will fund and then we'll just leave it at that and it's over with and so we never pursued with declarations and affidavits we just we just let it go at that point i did ask that's direct that's squarely contrary to what the court said well it is my court did the court get it wrong no i think the court was quoting an e mail that i had sent to council at that time making that that that did you present to the court a situation that you know allege that circumstances have changed and that's why you didn't gather those yes where is that presentation in the record it was an oral argument for the motion for attorney's fees and i don't believe th include in the record for some reason apparently the court didn't believe that well not only that the court actually said defendants stated in their notice they would gather declarations to their customers to prove the improper conduct however defendant never produced any such declarations to this and so it's not that it wasn't in the record somehow you never got the evidence and even attempted to admit it after claiming to the judge that it exists no i think i don't think that i don't think the judge which was claiming a representation that i made to the court i think the judge was quoting an e mail that had sent least counsel indicating how such that i that if i needed to if i needed to pursue this further i would follow that course of action but we never did because at that point we had agreed that he wouldn't it would pursue that