system has as many objectives but one of the primary objectives is not just to protect the interests of the inventor or the patent holder mr minimizing this case another important interest is to protect those of the competitors in the marketplace in this case my clients mr and mrs lundeen in their code of finance and as importantly the public that litigation the defense of indefiniteness based on the us i thought your honor i believe you said on the dow chemical panel in my reading of the dow chemical case is that did but we're also presenting those arguments at the time on a definiteness and considering them your honor in the context of the law as it existed at the time so yes nautilus was a sea change with respect to the abuse discretion standard we cited the law that this war will apply the law the regional circuit on issues of law that are to be considered a novel waiver is one of those issues and we think the magistrate judge got the perpendicular we do understand to be ninety degrees that's the reference point but there was there is uncertainty throughout iraq we cited in the brief to the testimony of mr minimizer himself these are these are significantly different circumstances of course we're dealing with a redesign product here and we want to foster the concept of redesign and competition but to federal circuit also tells us that when differences between devices are merely colorable that means they're especially the same which in turn means the collateral estoppel applies in a finding a finding of infringement on my glasses on is a program called an argument embraced throughout the proceeding below by our colleagues representing mr minimizer i do not that those are only partial quotes from the district court's determination that weighed the credibility of both parties witnesses testimony and i looked and indeed they are only partial  more than colored we different from a device also found in french why then does tivo require a second stop of analysis after the no more than color we different fine which the court reached in this case relative to the first two the answer is we don't know and while we suspect the issue of infringement has been subtle that is that this report is saying it suspects the issue of entrenchment has been resolved by virtue of the first prong of the test but that is precisely what tivo was designed to change their still must be a finding under two seventy one of infringement the same under the colorable differences analysis are they used for the same purpose certainly i put it on the front of the rear of my bicycle are they used to support someone on a vehicle in motion with yes they are  however when you get to the issues that matter in a pat and frenchmen case which is how the claim terms as construed apply to the accused products you're not you're not comparing products they're you're comparing claim language to choose products it can be all the difference in the world because the claim may specify a bicycle wheel wherein there are twenty eight  spokes that's why the distinction is important we argued exhaustively on that point to the district court it seemed to be lost on the court and certainly was on our colleagues they literally argued throughout trial in their post trial we look like to me like in important and importing intent well there is a great deal of intent in the case generally because of course the court found they had a global credibility problem  sarcasm oh it without without doubt and the absurdity of it was what impressed the court more than anything and that's the tony took in his opinion because these arguments would come out of nowhere trying to circumvent that constantly so that all of these things that the court i think looked at with some hostility and certainly played into its triple damage and fees award at the end so i can't blame the judge for you know not compartmentalizing all of these things one hundred percent however when it comes to tivo there's no doubt he followed the letter of the law in that case because sure he had collateral  based on no color but differences something they don't appeal here and that would be to help the line of cases in the others he cites for that i don't think tivo reversed that line of cases at all in fact in footnote four of the tivo case it says the court's freedom employ any traditional means of proof that are available such as collateral stoppel but then he went on and did it anyway and in fifty fifty one is exactly where he kind of summarizes that although there are other parts of the opinion where he talks about infringement but he takes four basic approaches to it one is the common sense approach that says you know we had an infringement product at the first trial there were no changes so just a matter of opinion we give it to the court in our brief where kaiser says seventy five is proximately perpendicular just like eighty was the first when i was three yes so that the whole premise of the second trial was that they they wanted to say it was eighty versus seventy five and they couldn't explain how it changed but it did the only change really was a new expert who remembered stuff because they were always that in that range and the court then gets down and compares that he said whatever it's approximately perpendicular at seventy five and then they think the court contrast that with their expert dr store us who was in you know in the clouds had in the clouds wasn't dealing with the product or the claim a couple things i notice from the first part of the argument here was interested to know why they stipulate a claim construction approximately ninety degrees that was that was something of a gift they have contested that then and maybe at that point minimizers testimony about what his product was that could have been relevant there are cases though that say that inventor testimony irrelevant the claims go so we would have had that fighting maybe we would have pegged it at at seventy five or sixty which is a standard thread sixty degrees but we didn't do that and so neither did the jury the first time around say it's eighty  and the judge notices that too so obviously you're dealing with plastics you're dealing with the rule with the human hair on these things and so all things considered seventy five infringes and that says independent supported because the court used that term and they kion it but all the court was doing was saying you know look you you raised it you abandon it and now you want to bring it back because it's convenient but i don't see that landscape i changing your arguments all involve the old cases before what are the test was was they all test or a new test i don't see a big difference all knowing and certainly even if you reach merits it's it's not it's got approximately perpendicular there's a firm end up there but in a way that's a moot question too because i think as we know in the briefs once the color of difference questions subtle than that cuts out these defenses including this nautilus defense so it really doesn't get them anywhere at the end of the day since they don't appeal colorable differences redesign first of all we have to focus on the issues at barnum are two certainly something changed because by mr minimizers own admission he dropped assertion of claims to three and four of the seven to six  colorable differences talks about a product the product comparison in that respect you do look at the old in the new it's hard to claim that the redesigned product is the very same as the original product notion that there were not additional threads cut into the core inserts what's on the internal part of the mall that create these it is a preponderance theory and yet that was the refrain that we heard at trial nothing has changed about these by the way the only thing that changes is a new expert the insinuation from my colleague that we just got a new x crew came up with these magical seventy five degree measurements the first measurements we had in the case came from steven kaiser mr minimizers expert witness every single one of those hundred twenty six discrete measurements not of the old product of the new product averaged seventy four point six five degrees of course something changed further mr kaiser admitted the trial the threads that he measured were the three threads closest to the sun or stop on either side what does that mean highlights it gives us a road map for the legal air on the application of the literal infringement analysis he focuses on as i said manufacturing tolerances they don't appear anywhere in all redoing the jury if the result stands at the judgment stands it it's bad for competition it's terrible for my clients in this case and it's bad for the public the court misapplied the literal infringement