district court construed to claim phrases you're really asleep the phrase a low level current includes the relative term low low means below a standard or reference point construction of that phrase consists of a den a fine the benchmark below which the current must be it must be lower than or below  the court and the parties agreed on what that benchmark is in fact in the read brief each piece says quote the parties agree the reference point for determining whether a current is sufficiently low is below the level needed to sustain stardom that was what was required for construing low level current but the court went on to add i nd concept a lower bout given the limitation of time let me kind of cut to the chase additional thirty questions let's assume hypothetically we were to agree with you on at least one of your claims construction points why does that necessit that would meet both of the court's claim constructions that is if a court reversed on low level current we submitted evidence from which the jury could find that it met the court's construction of the main power source as a d c power s therefore under discords precedents we would be entitled to a new trial we're not entitled to a new trial only if there is a claim limitation for which we didn't present sufficient evidence we can't get past j mall on an element and that's true for both low level curve and mean power source we submitted evidence that would meet the court's claim construction of low level current now the jury didn't agree with us but the court agreed that  inappropriate and we've cited included that evidence extensively in our brief and up you say with respect to low level current that it's essentially a one way vector i any thing below twenty five dollars and you're either dead or you're hibernating bear i mean that that would be the range that one would talk about in realistically speaking of a low level heart rate isn't it we're on i would read that there are contexts where you can have other words that can be made to pose a lower bound and part of a contextual in this case the the only part of the context would be the words heart rate which is about your contention is that when the now in the context of currents we could design a system with a very minuscule current level that would still function as long as we can measure and essentially of any current to be generated can be measured there's nothing in the claim that imposes a lower bound as a practical matter depending on the system your design even you're going to have certain limitations that you want to include the there's a pre selected condition you're looking for and you're going to design your current level to establish that but the question for the poor is does the clean language impose a lower bound does it say there's a current level that it must be higher that the must be sufficient to accomplish the claim the language the current claim praise lowlevel current doesn't include that includes the concepts of the current level and then it must be lower below a boundary let me briefly address the issue of  they said quote notably petitioners in their motion do not propose a modified schedule if joinder is granted or explain how the current schedule can be reconciled with the due dates for this proceeding the basis for turning down a speech st petition was h p hadn't shown how they could consolidate and perform what was needed in a single proceeding but the p t have never ruled you can't add any additional grounds we're procedure there are that's their stated practice and they've done that and we've cited the cases to that effect dr what's required is that if you're going to add another issue you have to submit a schedule and explain how everything can be done what h p did with their st petition was the included eight different experts declaration and the people have pointed out now we've got two experts we get to deal with how we're going to deal with this you haven't told us how we can accomplish all this therefore they deny that st petition h p then filed a nd but i don't understand if they said we've already got one s but what could they what excuse that could they have had i mean they if they're going to introduce additional pieces of prior art that they are not included in the petition they're joining they're going to have to be doing a whole lot more legwork and introducing a whole lot of stuff into evidence so you think the board would allow that what  criteria the board uses if they can come up with a drill yes your honor exact and they've done that in other cases you can join additional issues what h p should have done was either if they're going to use a different expert th explain how all this can be accomplished here's the schedule we can be followed or use the same expert and explain how it can all be accomplished tell me then how stepping back this whole  own petition and what it did in its nd petition was filed petition that then duplicated a vyas ground in his st petition it had been duplicated advise ground it had modified it slightly in had a different expert right under aged peace rule h p miss is the deadline h p gets to take advantage of the i p r procedure and it's a loser the i p r there's no stop all that creates a perverse incentive for parties that are part  of if there are multiple defendants being sued for a defendant to hold back miss the deadline and then file a duplicate petition in joint so that it's not stopped suppose that in this case would you say then if the board then denied with respect to either all of them or with respect to the fisher patents and the pretty c s period would you say that there is no  and tried to get that ground raised before the board they did when they should have done the board would have had the opportunity then to deny the petition altogether which case there's no stopping or to deny one grounding grant on the other in which case it would be no stop when they deny ground but h p didn't do that they intentionally held back didn't want to present it wanted to have this this very narrow petition and as a result we went through a final  money morning chief judge prosimian please the court on the main appeal from network thirteen quick points on low level current now we're going to greece that the specification must be examined to establish the object of standard for a subjective term and they agree what the standard is it's sufficient to sustain the start up something can't be sustained unless it's been started up in the st place and that same sentence of the the court must determine whether the specification provides a standard for measurement that's what the district court did hear absolutely unimpeachable claim construction rationale nd and main power source there's a different thing going on here my friend makes it sound in the briefs as if this is importing a limitation from the specification that's not our position our position is that our expert dr knight her presented a declaration explaining what a person of skill in the art would understand at the time of the application the district court credited that explanation it was an rebutted by the patent these expert and under tega that's entitle to clear error  court this is this is a simple personal skill in the art analysis supported by expert declarations and credited by the district court it's also the chief judge approach to answering your questions irrelevant to the verdict that that this mean power source limitation whichever way it goes it doesn't affect verdict rd and finally on are not infringement arguments the h p switches generate the the low level current within a different component called the p o v plus chip this was undisputed at trial so that regardless of either is assumed delivering this is the deliberate from women to have taken so that if either or both of these other constructions were changed there were still evidence the delivering didn't have to come just from the p o v chair but could come from further back why isn't that enough at least to create an issue given the claim construction that that you had just  no amperage is disclosed he never dealt with the fact that david welly or fact expert testified that once the power of the electrons is inside the o e chip the current is actually generated from within the o e chip and current is not power and if we go to the testify in terms of her when he caught my eye because the fight in terms of quote unquote our detection current when he was talking about a hypothetical he never testified that as to the age of the chips in particular there is now an h p switches did you determine devices a it's not clear to me what the what the import of the change the structure would be if if it were the ac is my friend says that my read on some other devices that our device is the accused device is a trial or d c all the way from the transformer through the end of the circuit so  vs ac issue doesn't affect the jury's verdict not infringement it's an academic question as far as the accused devices are concerned with their theory and all of them since i will get up again probably i'll tell you what he and the friend is going to say is that it's a theory of indirect infringement that wouldn't ever the consumer plugs a something into the wall that has ac power that that somehow completes the claim limitation but the main power source which is the component described in the claim has to do two things it  plugged into the wall at some point that's not the question the question is whether inside the claim circuit there is a d c and the ac power in the shop ok we move on to a stop thank you don you know our i think has become more important in light of the cess institute case where you know the tab now has to institute on the original petition if it is to set all of us institute on all claims and all grounds it will often be the case that there will be joined or parties after the one year bar because of the nature of this industry it is often the case that these patents are asserted simultaneously or nearly so against multiple defendants often in different jurisdictions and of course they all keep an eye on things and our position is very simple and original petitioner and a jointer party should be governed by slightly different standards with respect to the a stop the provision because of the realities of p t procedure  once in a regional petition has been instituted the world knows the grounds on which the piece is going to rule a jointer party after the one year bar is generally limited to those grounds that the presidential opinion panel of the p top said that told us all that in the pop prop and decision that we cited while this pew was pending the only exception they identify is when the patent owner asserts different claims or different grounds in a trial that would make it unfair not to allow so that as a general mat is not going to institute on additional grounds for the joint apart my friend doesn't cite a single case in which the peta has ever done that but what is his he hurt his comments as i did that when you initially proposed doing that the board  wholesale they just said it needed from where information which you failed to provide that i would submit just cross that's a bit incomplete st all of the references chang would miss and board said we did not propose a different schedule but said more pointedly that new issues were presented in addition of those in the original petition and tonight on that basis and about the same time granted the dell petition which and specifically noted no party to add additional grounds after the one year but so if that it's not the case that they ordinarily do that the cases they ordinarily don't do it and the presidential opinion panel the director told us that's what they've intend to do going forward so as a pr matter as a reasonable matter to use the language of the statute a jointer party really can't add additional grounds and you know just bryson you asked my colleague about would have been enough if h p had just put in the fish background and of course it would have been i mean i'm not going to dispute that of course is right but is a not as you well know matter simply listing the grounds on a piece of paper to put in a petition you've got to put in your expert reports your analysis it's an expensive major undertaking to put together these petitions and the rule being proposed on the other side of this record a lot of if you were doing it with the full expectation that it wouldn't be instituted and you were just doing it in order to have a procedural device to protect yourself for for later under shot then then presumably you wouldn't have to put put out that kind of an effort i'd be nervous about that your honor because then the board would would deny on the ground that it's an insufficient showing and then you'd be stuck you know either way because why would you be stuck in that case if they denied it well you know you wouldn't you would be stopped i mean i guess you could patch your invalidity contentions to your petition but that's certainly not the way peter practice has gone the p t as expected a full petition and supported with the assumption unless there is some change in the district court there is no basis to simply include those additional points and you know that because respectfully has before the choice of bright line rules right for jointer parties after the one year bar either the requirement is as the district court applied here anything you knew about has to be included and look or do you could deal with that if that were the rule but i don't think that's what the statute says or joinder parties after the one year bar at least in cases where the beat up is indicated that additional growth will be accepted do not need to list every ground because it would be an exercise in futility and the statute includes that word reasonable that you know it does not say grounds that we're really richelieu you are advocating is that if you want to join you join a party but you're left with the grounds that have already been instituted in the property filed a petition that you as a party who was time otherwise the statute says you could join us a party but that does not include your being able to raise additional new grounds that were not included the original petition precisely or like that makes sense you think because it would kind of be unfair to in a way of people to keep piling yet and even if they didn't really have the right to be there with their petition because they would clearly time bar it and that yes and if they want to further than that if that's the rule then they are going to have this piling on and then any join to petition the does get instituted we're going to have a sas question about whether they have to is to do all the grounds and proposed and that right because i think a jointer petition is different than an original petition under the already been instituted a party like each be made choose to join look we're down in eastern texas we were ready willing and able to try this case we did try this case we got the claim destructions from multiple judges we went to a jury a jury found these claims not  arguably a new trial well certainly really there's three options for the court you can reverse on the ground there is sufficient evidence to support the verdict you just reinstate the verdict you can remain for a new trial but there was i mean this case was tried and it was tried on the fisher systems and on the fisher patents arguing that both of those staff wished ok so how are we to pick apart a jury verdict now not knowing whether or not they indeed relied on the fisher patents which maybe that evidence should have gotten in the st place because that was problematic right now work one argued at trial or under in the appendix of page twenty five dollars or two that the fisher system was redundant it was unnecessary that the fisher patent ground alone was enough and dr nye curd testified that everything taught in the fishery system was taught in the fish about the fish or system was a state of the art and so it was there for the jury to understand how dr fisher implemented  district court disagreed but it was a priority as an implementation of the fisher patents they're not renewed with the inventor got the patent and also develop the system implementing that patent there's not a delta between the two dollars and four dollars of the teachings every element of right if the stoppel is taken away as we submit it should be whether or not a new trial is required because he sat through the evidence and and is familiar with with that point because he did not rule as no one points out on the conditional new trial motion so it's there's actually no ruling your honor's question about what happens if the main power source is reversed and yes your honor if contrary to each piece position the patent claims do not require that the main power source figure one just two pages back power source data note two separate components and as a result we can point to an ac or d c power source that is outside of the switch and we three a separate component the ac power supply is outside this which feeds into the switch so it's a very common configuration it's one that we accuse we had evidence of it rule is that you can do it it's true that they rarely do it because most people don't take the time and effort to file it timely nothing to present the schedule that's going to allow to all be accomplished most people simply duplicate another claim but so your view of the if adopt a principle which would apply is every time any party is joining in on going i p r any reasonably could have raised the factor this considered is it looks at from the point of view of the petitioner could they have raised it not what would the reaction have been of the p t two could they have raised it and they could have raised it reasonably they knew about it therefore there are stopped again your honor if we don't have that rule we have a prefer system where somebody who misses a deadline gets to so they don't get derive any benefit other than what's already been established by a timely petition that's been filed that doesn't seem to be a horrible policy choice of example get you policy time ard allegations of unpatented billet me get to have all of those allegations syria did against a patent or just by getting joined that doesn't seem like a great policy choice either the patent owner is double withdrawn petitions because there are two sections and the statute i know they talk about consolidation consolidation and my brain is you taking two cases in consolidate them and then they talk about joint there of parties not of petitions but of parties right your honor i don't recall what that statutory language is i can tell you what happened here which is that they filed a petition the petition was instituted and it proceed to a final decision all applies under the circumstances your honor that's what the statute requires and says if they raised or reasonably could have raised the ground there or stopped in the whole point is to say let's get the want to one of three grounds that consolidate it they were stripped separate petitions in fact that were consolidated for dropping so was instituted a final decision did enter and as a result under the statute a stop will plies the trying to get away from a stop at a stoplight i see have used my time thank you thank you we get response just some across appeal issue pending one this court the concurring opinion in the night a case from this court addressed this whole point very clearly have cited in the proppant decision from the from the presidential opinion panel and explained that after the one year bar the statute allows the director to