first case for argument this morning is fifteen one five four nine life net health versus lifestyle corporation evidence of direct infringement to sustain the jury verdict the district court relied on traditional proof of inducement what are the instructions for you say how does surgeons use this device in the operating room this is not a direct infringement case as this court held in cross medical if the surgeons are assembling the final product in the operating room the after as he claims do not infringe directly and no reasonable juror finds that seem to recall you're right the district court initially said that it was going to the truth of the time transplantation for the not removed limitation that's correct but then ultimately got to what could be regarded as the right place which is what matters is at the time of production well if you terms of the not remove not remain last side from the internal yes if you if you look at the district court's opinions both that summary judgment and it jame all of their entirely inconsistent some portions of the opinions they're talking of the judge is talking about the final act is transferred plan plantation what's relevant is what happens at the time of transplantation other times in the opinion the court then says so it infringed at the time it was packaged but then when you look at the proof the court relied on to sustain the verdict he did the court of then talks about what were the instructions happened in the operating room by looking at what surgeons were doing and by looking what the instructions for you say so that is traditionally induced would prove or contributory infringer prove it is not proof of direct intervention if you have to look at what's trying so going back to cross medical this is clearly for square with cross medical there can be no direct infringement here and no reason what your could have found otherwise similarly for the method claims is just court held in aka mind if all the steps are not being performed by the accused infringer it is not a direct infringement and there is no evidence here that her lifestyle was somehow controlling the doctors or in any sort of joint enterprise just because if you look at the language of this limitation we'd look in the surgery room are we dealing with products here that are there prepared for insertion in the human body or can be grafted in the human body and and so it it it's just data being up until the time that you that the surgeon uses that the product up until the time this subserving actually does the transportation if you look at the words in the claim and it's are not removed prior to transfer plantation that's a verb clause it's expressing an action and it's talking about actually have to read it happening in the operating room by the searchers that's what takes it clearly out of direct infringement if you have to look at what's going on in the operating room once you produce the graph you can't remove the plasticizer from the internal maintenance at any point in time after production without actually destroying the gravity well that certainly a like that's an argument but it's clearly wrong in the district court addressed that's foursquare by it's a pointing out that the language isn't that you need not remove the possible causes of the language in the claim limitation is built prop plasticizers are not removed it's of for requiring action not removed means there is a removal and now remover is the search so even if it is a quality if you want to go with the quality it's a quality at the time of transfer plantation it's not a quality at the time the graft is in the package it's just you could think of them about this as a contributory infringement case for instance where you make a machine that if you use it necessarily infringes that's not a direct infringement case if my client made a grass that necessarily infringes when used they might very well be subject to liability for contributory infringement this isn't a contributory infringement case back to graft whether it necessarily infringes when used or not doesn't is also a very interesting issue in this case because as life and it says in their brief at page thirty eight they argue that there's no two micro issues here because the trial resolved the factual dispute and they characterized the factual dispute as and this is a quote the fundamental dispute at trial was over where the plasticizer about lifestyle said was removed was removed from that's how they characterized the speedy trial that is not what this trial is about the record flatly contradicts that their own expert dr that's what their expert emitted in direct testimony that in their closing argument they told the jury the plasticizer comes from the voids in the gaps in the internal matrix even in their brief here on appeal at page thirty they talk about the the plasticizer coming from the b plasticizer in the matrix so there's no dispute between the parties where the plasticizer comes or we agree with that and we said this in our in our field briefs the disputed trial was to the claims covered that are not if the everyone agrees apostles hazaras coming from those gaps in voice in the matrix there's not a dispute about how the products works there's nothing to try the question is just the not remove limitation cover removing plasticizer from the gaps in the voids now they're just that i guess i beg to differ know is defined spec in the parties stipulate to that definition what that means isn't that what the parties were fighting about at the end and what it does because the the experts were disputing yes and no let me let me put a little bit of a different spin on that you honor what that what we asked for below repeatedly from from the beginning of the market hearing through the pretrial motions in limine e journey objections and trial and at the end we asked the court to rule th is bound to run valid which is this is why i said let me give a different spin on it in that several occasions we told the corps any removal of classes or whether bound or on ballot from the internal matrix is a violation of that plaintiff's expert dr caplan now offers infringement theories premised on the notion that there are different types of plasticizers defined by how strongly they are chemically bonded and that some types of plasticizer that we just  characterizing a blow to answer your honest questions about what is from the internal make we were using different words below saying bound or unbound it's the same thing because their position is it only comes from the matrix if it's back so we were saying you can't trying to apply to all plasticizers that's what they man and that's what they raised i just have a couple concerns one in i didn't see a need for only where your side said we need a claim construction right now and we need a claim construction because there's a debate over what does that mean from the middle matrix and we need to make it clear that when you're withdrawing the five year gets from either the gap in between the different the make up into the right as well as the fiver's themselves that make up internal matrix with and then the second part is that you know the other facts and you come up and say that when it comes to this very specific issue  sides you know that they're given the charge that we're going to go with the plain meaning of the phrase and then sides are telling the judge that it's just a fact question are you saying that it's an lassen and in the other fibers that are together in a matrix format it is inherently it has gaps and voids in it by defining a matrix as the structure that creates it it doesn't rule out the gaps in voids if you just think about this in normal dispute here is what the plasticizers this claim element was referring to and if you look at the patent specification you can't come to any other conclusion one other than it's referring to what comes out of the i was talking about the s doesn't say that it excludes the gaps and fill it includes is open ended and human normal parlance is that when you have a major to has by definition gaps of words that's what a major to so so is the claim construction dispute that you're saying was avoided that should have been eighty eight where we told the court please pretty clued kaplan from testifying about this internal matrix bound on background and we say at the top nonetheless plaintiff's expert dr caplan now offers infringement theories premised on the notion that there are different types of plasticizer defined by how strongly they are chemically bonded and that some types of plasticizer so called free or both that's the stuff in the gaps in the voids  made that clear unarguable out here is that that is from below that's the motion let me to the district court so what happened below just to be clear at the market when the court ruled the court said it in words no remove all means no removal of any plasticizer that's of the court sad but then the court didn't construe it the court just said no construction necessary but that's what i mean by so what we're saying here in the motion in limine is you told us what you meant please put words on that and tell that to the jury and the court refused it the motion in limine the state should do that and then during the trial and this was back to the judge pretty quickly during the trial when kaplan testified that way we brought it up again your honor and this is on eighty one ninety seven where we said very clearly to the district court at the sidebar what they are arguing is you can remove what they are calling both plasticizer and that's ok but if the claim what right i think that your honor has a point to i'm not disputing that but in the context of what was going on below the courts mind was that limitation applied to all plasticizers and that's what the courts the court we are going to decide by the court knew what the issue was did it apply to some plasticizers or did it apply to all the law says it is jury instruction maybe the court knew what the purpose of a jury instruction is to make sure the jury knows that that's why we were asking the court to tell the jury what the jury heard was because that was life self defense there was no dispute that they produce plasticized soft tissue graphs that have plasticizer in the internal matrix and were suitable for transplantation their argument was but our instructions require a two minute rounds and that that takes place in the operating room and that rinse which is which they said was necessary to remove plasticizer from the internal matrix now the evidence at trial was a that rinse isn't necessary and b it doesn't remove plas in fact our expert testified in the jury apparently agreed that you can't remove the plasticizer from the internal matrix of their their graphs so the so the surgeon active whatever might happen in some other case in this case surgeon activity could have no effect on their product and their product infringed when it was in the surgeon's hands nothing the surgeon did has anything to do with that but the claim is written that strange it is strange when the reference point with this not r think is it's a structural requirement of the claimed graft and i think if you did that becomes clear when you when you look back at how it came to be so it was not originally part of the claims  plasticizer in ours is not removed that's a structural feature of these crafts that in fact they wouldn't be plasticized soft tissue graphs if you took the plasticizer out of the internal matrix it wouldn't it then wouldn't preserve them it wouldn't keep the structure specification and it cites as one example an example where the graft is directly implanted without any sort of preparation but it but it's clear throughout the specification that what we're talking about is plasticizer that is bound to the molecular structure of the tissue matrix that's in column one it's route and it's and there's going to there's even an example where it says you can even centrifuge this thing for an hour and you're not you although you're going to remove some class size or from the graft you're not going to remove it tightly come up those don't come out nor do the tightly bound plasticizers what comes out is the free plasticizer that's in the gaps or on the surface of the ground and that was a factual issue that was a factual dispute between the experts and judged and you are right i am going to point out that demonstrate that it's removed our expert is going to tell you indeed comes out of the internal matrix and we agree that the question will unquestionably before the jury that's what this trial was about there was no dispute about the plant construction of the construction of the not removed limitation but the court said not remove means not removed that's what they say in their brief and you know for example if library page twelve it says it means what it says not remove means not want to have where they are pointing out that  argue that it was inconsistent with the client construction that because they had moved in let me say and their and their motion didn't have anything to do with founder on their motion let me said don't let them say that sometimes a plasticizer can come out and other kinds can't way they interpreted it this was always about this isn't about different types of plasticizers this this was a dispute about where are these plasticizers coming from the coming from the internal matrix or they or all of that but one of the if you just step that the minute one of the arguments search this record you know to eternity and you are never going to find a proposal for an instruction anywhere near that that was not what this case was about the what they kept asking the judge to do the judge said look it's plain meaning not remove means not remove means no plasticizer is removed they agreed with that and they repeatedly told them we're not asking you to change your construction we just want you to clarify it we want you to say plain meaning means plasticizer is removed judge krause i think as you pointed out how is that going to tell the jury anything about bonding on bond which the experts have been arguing about and have and that the attorneys have told the the jury this is a factual issue dr kaplan says that there are gaps these are gaps are in the tissue they're not part of the internal matrix dr bad like said there are no gaps there is absolute there are actually no gaps i'm one hundred percent confident that there are no gaps and therefore any plasticizer that comes out of this graph necessarily comes out of the internal matrix because they are one in the same thing that was a dispute presented to the jury and even as late as a motion this meant to the motion of limited briefly they made it seems to me they made that and including the loosely why is that they were drilling down with the claim construction that they thought was fine until they saw the expert report and saw that he was going to differentiate between the blast sites well well let's let's assume that that's what they were doing i don't think that i don't think the motion limit he says that but let's assume that's that what they were doing then what they should have done was gone to the doctor the court with the proposed instruction that mr de mera said today is the instruction that they wanted which is no plas cizer whether bound or unbound can be removed from that from these graphs but that's not what the claim language says it's not what it's not what the experts testified about and most importantly it is not what they asked the district court to it's not how they asked a district c instruct the jury this is this is an argument that is being made for the first time on appeal after you know everybody was perfectly happy all certainly lysol was perfectly happy with the plain meaning plain meaning of this  plaintiff may offer testimony that the plasticizers removed do not come from the internal matrix this was a pure dispute between experts the way this case was tried heard me and there was nothing about the jury instructions that they requested that would have changed that and i think and i think it's important to point out that dr kaplan expressly agreed with the construction that if any plasticizers come out of the internal matrix that there is no infringement there was so there was this was not a case like i want to micro or for some yard the recent decision in the eon case where the experts were presenting conflicting claims instructions to the jury the construction of the not removed limitation was not in was sort of him and even they said so we're not asking for a different construction we want you to clarify it so they were basically they basically wanted to provide a key that maybe the forty four were for word agreement that i don't see anybody pushing better if the court had just construed the not removed limitation well your honor i don't think so first of all i don't think that the case was moving toward a perfect storm i think the case and that the way it started which was the dispute plasticizers come out of these graphs we know that from what part of the graphs that they come that was that was the issue at trial and that that was the issue everybody agreed that was the issue at trial now the  that could the judge of use different words maybe but but what he would have been doing was just perfect particularly if you accepted the only proposal that was put in front of him he would have just been rearranging the words he was already using  say you know ok plasticizers you're not remove means no plasticizers are removed there is but you know mitt maybe that would have been a clarification maybe not but it certainly would not have gone to the issue that john which mr to maris now says premise which is i don't think this was moving at any point would be exactly that if i understand ok so i won't fight the hypothetical i don't think that a district judge to a sponsor a has has the obligation to do that trials or adversary proceedings t parties have to present positions to the district court would it be error for a district court to do that no i don't think it would be error for a district court to do that nor judge trying to do i think it would have been error for the for the district court to say kate to accept that with what their actual proposal was plain meaning no plasticizers are removed but that's not the issue here the issue is was it reversible error for him not to do that and i think given the way this case was tried given the proposed instructions he was presented with there's no way that this was error for him essentially that to try the case that the parties wanted to try using the construction stet you know everybody agreed it was it was correct it was just a question is should i should he say more to clarify  he decided not to and that that is not error on this record can i to take you to another small issue that your friend did not raise but it's raised elsewhere which is there seems to have been arguably a burden shifting thing going on here  in your your witness didn't do any tests themselves dr kaplan they complained about that and even in the closing argument you know your side says this is the internet matrix and they would have to prove to not infringement that the there was a wealth of test information from life cell put into the record that he relied on he and they had they actually crossed him on this as you would expect you didn't do any testing of your own did you he said no i didn't need to because you did and looking at your tests i can see the plasticizer remains in there the structural qualities of the of the graft have not changed a bit and because of the nature of the binding reactions that take that take place between the plasticizer and the matrix components i can tell you does not come out of your internal matrix so there was plenty of evidence here whether he did his own test or not there was plenty of evidence here on which the jury could conclude the plasticizer does not come up and the reason for the closing argument your honor is because as i said at the and if you follow those instructions for us plasticizer comes out so that's that that's the context in which this closing argument was made it was because their whole argument was ok fine we have these classify soft tissue graphs but in our scan our our instructions require essentially that that plasticizer come out of the internal matrix and that didn't happen and they they were able to prove their so that's the context i don't think there was any burden shifting here your honor but it was really just a matter of what the evidence and but but you know what's unusual about the limitation i think is that it states expressly what's actually implicit in any claim that claims a device designed for a particular use every claim the device defines a product for a particular application implicitly says here's here's this device and don't change it before you use it because it's designed for this particular application i mean think about a claim to a wooden structure for some force you know suitable for sitting up on consisting of a seat and four legs of people length if you you know if you added a limitation where in the leg of soft before sitting and sitting upon it that doesn't change the fundamental structural nature of the product but you know you can imagine that a limit you know if the claim was rejected over a three three legged stool and prosecution you can see where such a limitation might have come from it doesn't change the fact that it's a structural limitation it doesn't mean that you have to actually sit on the chair to to infringe the the the claim to it which is essentially life cells argument that if you don't actually transplant these things you know you have an inference to claim the claims are to a graph suitable for inference a suitable for suitable for transplantation operating room comes from the caps and it's this isn't a trial about heart of the products work it's not a trial about do they come from the internal matrix they come from the gaps in the voids in the internal matrix everybody agrees that the question is legally does the claim cover that or and if we have to look at what the clean means and it's not correct as counsel said that this wasn't teed up for the district court and by the way it wasn't just teed up once it was brought up multiple times we refer to two of them on my during dr catherine's testimony then at the end of life so it life nets proof we wrote a written fifty a motion where we briefed again this bound on bound issue and not said a seventy six seventy one and then at the conclusion of the briefed in a rule fifty motion at the close of life cells evidence the judge had every opportunity to say with disappointment legally and if we look at the claim the claim construction it can limitation makes zero sense if you read that specification it talks all throughout the specification how do you remove the plasticizers do you have to remove the process isaac you can do a direct implantation we don't remove them you can likely rinse it where you remove the plaster sizes on the exterior you can do a more thorough washing where you remove almost all of the plasticizers that's what the specification is talking about when the specification talks about removal of plasticizers it's talking about removing them it's not talking about the so i'm sorry it's seventy six seventy two thank your honor if you look at the top of seventy six seventy two because it's second paragraph first whole paragraph because dr caplets opinion regarding the removal of non bound process i was contradicted the courts claimed construction can be removed and some can't that was this found on bond issue so that's what we were trying to bring to the court's attention but to put to go back to what they're saying and that's true means it can't mean what they say fit this application all through the application rejected over caballero carrier oh isn't this just a single strand heavier also talks about bunches of college and fibers and what the patent office said the original claims couldn't be patentable overcover hero which was the original claims allowed removal or not or the move will allow both the applicant didn't fight the rejection but amended the claims to say no removal and the only way that makes sense is if it's talking about the process as if that can be removed because otherwise it wouldn't distinguish heavier so you can't read this pattern and come away with the understanding of the limitation that they have because there's no support for it in the spec and lastly under direct infringement issue you cannot read that limitation with the words no removal prior to transplant taishan and change those words to in the package or prior to packaging and the district court found that it means prior to transportation which happens in the operating room by the surgeon and there