received a price for thirty five dollars for releasing one fifty lb bag of coal for nine six six three variety well what the testimony actually was of mr farmer is that they would expect to see for register seed a different type a c thirteen dollars and fifty cents which councilman's bre first was the technology the plus twenty two royalt well as the court appreciates under section twenty five sixty four the p v p a for infringed the owner of the intellectual properties and title to only a reasonable royalty and this court per bag therefore a royalty of thirty five dollars per bag three thousand five hundred percent more is grossly excessive in monsters under organists and broke tree in numerous cases and saying why your client should not have been found liable here in the first place obviously if you're not liable you don't get to the damages issue write the script i would've thought origin that's been shown that the trouble with the damages approach is that we give a great deal of discretion to courts and that there is a chain of reasoning which you're attacking what about the other than reproductive a of that sale and that dollar royalty there's no record of that in fact the castleberry so that they never divert from the feed ban that grain for sea and carry better for your position to say that there was no liability because no liability was established really no damages so why is the law in your favors the district court make a mistake and be sold not for city purpose but for a few purposes i just like it is an element of damages if there were a technical violation because it was dispensed with up the label there could be no damages because there's no evidence in the current statutory provisions including the other than reproductive services language in precluding evidence on that point it's unclear but apparently the court didn't have the benefit of that language seemed to rely on the the sinkers case in the people's case both of which were based on the old statute right this correct or the screw but i just want to judge case for damages but you don't but it's visualized no damage it's current i would think you'd be saying no liability no liability no liability we stand by our argument in the brief i think just super for this court which is obviously busy just look at damages because there is no question that the damages are excessive that there's no damages under the lanham act it would prove the actual damages what about the notice provision well we believe that this was properly before the court when the court make repeated decisions denying guilt of the opportunity to tell the jury that there was no way of knowing the contents of horses and then to show that it marked its seats when they sold them the first time do they have an obligation to require the second generation seller to also mark that seed the cup the second generation arguably the right to to i mark my bag and sell it the judge go i have to tell him at that time now when you resell this cd make sure you make sure it's mark if you send this on day to day to judge guy r z you have to market do i have that obligation per se is a price differential make any difference as far as notice is concerned i think it makes a difference in this sense why would a bill to cut sell certified see three dollars and fifty cents this is see when you can command thirteen dollars and fifty cents but you wouldn't do it this way careful person we've never done this we haven't infringe case and we have a cane case on point is reversed coming off in the agricultural industry i'm not sure our circuits accept because we have trademark try stiction you know we handle our own trademarks cases squarely is within the eighth circuit and therefore we should move to the eighth circuit opinion finally holding thank you the statute expressly says other than reproductive services cards that out and it seemed to me that the records show that the district court continually disallowed evidence that would have shown that this was sold for other than reproductive purposes because delta cotton played trial by ambush twenty five hundred pages is the discovery i received at the trial exhibits two weeks before trial  it is absolutely a diff it yeah if the defendant can't prove yeah notwithstanding the federal rules of discovery twenty five hundred pages are presented but don't the facts themselves suggest that there's a there was a sale here that was for other than reproductive purposes i didn't want to use it too as i have learned today kill dear mr bud a little different than then than growing statute that was not modified that is the statute this court ruled but got other than reproductive in the statute syngenta as a plaintive is in the position of establishing evidence to the thought mr bodie concedes the sea is purchased for intention of planting growing germinating and growing to fruition this seed is capable of doing it it was sold for that purpose have set syngenta has a limited bird so in a condition that can be propagated without mark but no i guess time to give back the point the district court did not allow the extent that delta cottons main argument during trial was we did not have we did not know all that we in our bid from which we drew to then clean and bag and sell to the public was to consider whether this was sold for reproductive purposes or something else that was never i did not object to a jury instruction either proffered or suggested by the do what they all took off rather we proceeded forward with a straight statutory we did not proceed after intentional conduct we did not on the other than reproductive services exemption there's a question as to whether it's going to be there for growing crops as opposed to killing deer that was not advanced by the defense counsel it is a there was never an attempt by defense counsel  to suggest that the sale fit within the exemption he said it was going to be for feed he failed to disclose any competent witness in a timely fashion that could testified the purpose as to which this seat was used by mr harrington the judge it doesn't seem understand what you're saying but it doesn't seem that the judge object barred the evidence on any kind of a ground like that or any kind of an argument on that kind of a ground i mean i don't see the judge saying that this is untimely the judge says if you bring this up and direct did you sell this for feed is that a legitimate purpose i will sustain the objection i will turn to jury and say the issue is not whether it was sold for feed but the issue is whether it is propaganda will now explain to the jury that objection so they will know knesset one sixty eight one sixty nine of the joint appendix and the judge seems to be as and as i think judge witnesses and i have jacked it to twenty six witnesses he was left with one witness that he intended to call and that is only the manager of delta he also finally disclosed twenty five twenty six hundred pages of the records of delta cut the business records i objected at that time for surprise unfair advantage trial by ambush whatever you want to call it and she agreed with my position because a pretrial hearing there was a complete exclusion of all witnesses that could testify as to the actual use of this wheat she was proper in excluding the witness to establish that defense also but why would she exclude the witnesses who was stabbed most of the time because it would be hearsay testimony completely the general manager speculating on what his at the before trial i received a link the witness list and a giant stack of documents in a shrinkwrapped paper that the defense counsel purported to be his case to establish whatever he intended to produce i jacked it this trial is going on for two and a half years i have not seen these documents i have not seen these woods was not given  opportunity to examine these witnesses through to physicians especially two weeks before trial the defense counsel in this case did not play by the rules the defense counsel in this case did not object to any he at all through the trial the defense counsel in this case decided to appear on the court steps ready with a case that i had no idea what he's going to discuss in the interests of fairness the propagation purposes just under the statute leave aside for a moment the question about you know the this particular case of the time looking at the statute doesn't it appear that the defendant such is still the cotton or the x y defendant u p a case i would try to identify in a timely fashion all the sales that i made of this week yet if i put on my other half or syngenta i would depose those people and say did you play it wasn't for your pots ok if it's for erosion control let's talk about erosion control some form of wheat to use as grass temporarily and then burn down kill that grass to plant soybeans the next season whatever for the winter this case is the delta cotton put onto the market twenty six hundred bags not barrels bags of wheat without restriction which is the key concern person get and also i might know feed w is the black market approach to seed in a brown bag they're trying for i do not state or fiennes that's a moniker they attempt to feed we is a moniker they attempt to use they say so long as it's feed  we were in compliance that's this jury proved that not to be the case because the limited evidence in this case by the defendant established only that they were aware of the federally protected status coke ninety six sixty three and that they released it from their door with no questions and no restrictions and it tested positive scope for nine hundred sixty three in my money selling it illegally although they don't have to pay the investment costs and jet to does in terms of keeping it in a state seats or or in put it in properly marked bags or in making shirts substantially of contaminants or getting the state seal of approval that there is a proper germination rate they bring it in they know it's coke and i sixty three because the season before he sold it to the farmer he then takes the harvest to his grain facility pays two dollars for it and he's making a dollar fifty for every bag perhaps maybe more the market demands fluctuate at this point in time it was three dollars and fifty cents we've also found six dollars seven dollars four dollars it fluctuates with do it on the record which means six dollars i have to look to see if we properly appendix dr mr field farmers testimony as to the range they found monsanto be ralph is a case cited by this court about approximately a year and a half ago in that situation the technology was five dollars on soybeans compared to our situation we have a technology of one dollar but in the monsan were out they replant one thousand two hundred thirty four bags and store them in this case so for replating with that restriction two thousand six hundred forty two invest situation the jury verdict in a straight line computation at fifty five dollars a soybeans seven hundred ninety six sixty six thousand and damages time i urge you to take a look at that takes because there's many similarities in this situation we head straight my computation of thirty five dollars a the technology is a royalty to be sure but it's a royalty for only a narrow contractually agreed upon use of the cd and in this situation it's also in dispute that delta hop released without restriction the blockbuster variety over ninety six sixty three thank you mr henry your time whether it was sold for seed or for fetus here irrelevant immaterial now mr henry says his argument is that he says well in the proper situation a defendant could make this sold for feed not for propagation argument but in fact what we see here in the transcript is the result of failure to disclose the defense in the witnesses in pretrial proceedings what have you heard what he said ye there is a failure of proof it's not the burden to defer of the plane to establish the elements of violation they didn't do it there is no road but you know what to show the other than reproductive purposes don't you you've got to show the other than reproductive purposes for a defense yes this is a mess and you have to give proper notice and give an opportunity for for depositions and cross examinations and so forth did all of that occur on the question of other than reproductive purposes well because the court's ruling that there is no one at the court's ruling it's the beginning of trial and we're talking about a step ahead of that is there any depositions taken on the question of other than reproductive purposes not to my knowledge or why not that would seem to me to be an important thing to have had  depositions and cross examinations on well are because this goes for is prepared to propound on that subject completely fully in it and with respect to damages your honor it's clearly