Legal Case Summary

. No, is there been a sanction? Certainly, there's been a sanction in effect because there's been a finding of contempt and Bridgeport has been laboring under an injunction for the last 11 months. But could you answer Mr. Clevver's question? You had the contempt order and then there's supposed to be a sanction that follows that contempt order, right? Well, the sanction has in effect that there will be attorney Spees and damages in an amount to be determined awarded. Has been imposed. There's no question about that. Are you paid anything? Not yet. What's your injury? The injury certainly is the finding of contempt and the injury was deemed insufficient in the Supreme Court case. That was when the Supreme Court was like 100 years ago, right? But in that Anderson case, Your Honor, there had not been a holding of contempt yet. The order that was appealed from was simply an order directing the opposing parties to end the sentence. The reason why we're not in the Supreme Court opinion is that the judgment isn't personal to you until the sanction is actually imposed. And there had been no finder becomes personal. There had been no finding of contempt at that point in that case, Your Honor. In that, in the Anderson case, in 1906, the order, there was simply an order from the district court directing the defendants to answer questions and produce documents. They had, there had not been the next step of them refusing to answer and being held in contempt. And that is the, that is, that is, that is, let me go ahead and punish him for contempt. I'm sorry, once the punishment is issued, then it becomes personal. Yes. But in the case, there had not yet been, and that was, it was lacking. It was one step removed from the situation here. In the, in that case in 1906, the defendant had not yet, well, the subsequent case law and the other circuits as well as in this circuit has been made in that fine distinction

. I'm going to say, when there has been a contempt order, as there has been here, but there has not been actual imposition of sanctions, then you don't have a final judgment. Well, but here we have 1292 C2, which is a specific to this court. And it says, if it's otherwise appealed, I agree with you that this, if this were not a contempt order, then you'd certainly be in D2. There'd be no question about the court's decisions in KSM and the statement in LMK. In KSM, the fact that the perpetrator of the contempt order in favor of the patent fees makes the, causes this case to fall within the first plong of 1292 C2. You're not handing your, in par argument on jurisdictional in D2, though, are you? No, we also have C1. Let me ask a different question. What's going on right now, the district court? Wow. The year there was contempt order. Now what's been going on? We're still in the midst of briefing on the issues of the amount of quantification of damages and attorney fees. So 11 months, almost 12 months removed. We're still, if you will, proceeding in those areas. One, not going to be finished. Have no idea, Your Honor. I can't give you an estimate. Briefly complete. I understand your point of view. You certainly would like to have your appeal here and you'd like to prevail. Never having to pay a penny out of your pocket. I can understand that

. And that's what 1292 C2 is intended to do. I mean, if the action is otherwise available. But if you take away the issue of damages, or assuming the issue of, just leave aside the issue of damages. And so there was an award of attorney fees, non-pontified. Then clearly this would be immediately appealable under 1295. That's how this court in Johansson interpreted it major at. And in light of the Ray Kaelic decision, recent decision from the Supreme Court. Which adopted a made it clear that distinctions should be ignored in favor of an approach that looks solely to the character of the issue that remains open after the court, as other writers ruled, on the merits of the case. So but for the damages. If this was just a decision where there was a finding of contempt and an award of attorney fees and an amount to be later determined calculated, this would be a final decision under 12 and we would be immediately appealable under 1295. 1292 C2 provides the sense that it would otherwise be appealable. But for the existence of the accounting, the calculation of damages, then this court has jurisdiction now. And the purpose behind 1292 C2 is exactly the type of purpose that should exist here. There's been a decision finding of contempt, issuance of a new of a broader injunction. And we're now 12 months, almost 12 months removed without a determination of attorney fee, a calculation of attorney fee. How do we calculate the liability? I understand your argument, but how do we reconcile that with the AVO case? I mean it says pretty clearly in AVO that contempt orders aren't appealable until final judgment. And we don't have a final judgment. But I think that there, that case the jurisdiction was based on there, that there was no modification of the earlier injunction. It was a 1292 C1 case. Sure, but it's still a pre-broad statement and contempt cases

. I think it's making a distinction between contempt cases and other cad in current cases that 1292 C2 may apply to. And if that's the rule that in contempt cases, you can't appeal until you have a final judgment. And it doesn't seem to matter whether it's under the modification provision of the jurisdiction or 1292 C2. I think that the AVO case here, the differences, there has been a sanction imposed. It may not have been quantified. Well, I think the fact that attorney fees and damages are... I think there's a final judgment though. Because it doesn't just say it's a sanction imposed. It says until final judgment. I don't see a final judgment here. Well, I understand, but I think we fall within either 1292 C2 and 1292 C1. Well, I guess that's what I'm asking you. I mean, is 12... Did the AVO court just not address 1292 C2 and you think it's broad discussion there? Can't be applied to that. It did not address 1292 C2. It was focused on whether there had been a modification of the injunction under 1292 C1

. And while I think that there clearly was a modification and a broader injunction here, which provides jurisdiction... What happens if we decide there wasn't a modification? Does that affect your appeal from the contempt order? No, because we still have jurisdiction... I think that's a sub-juristic in the 1292 C2. Because other than... But for the determination of damages, this clearly would be a final decision. And I don't think that... Trying to draw the distinction between the contempt rate and not the differences. Well, the mere entry of the contempt order would be a form of a sanction. It certainly is. The problem I have with your position is that you're saying, well, we've got a contempt order. We've been held in contempt. We're a contempt order

. We've been labeled a dirty person. And that's injury. So we ought to be able to appeal. Certainly, but... I think the Supreme Court has already said that's not enough. And the other circuits have said that's not enough. But here we have an injunction that's issued against this. And I think that we have to look at the fact that this court has extra jurisdiction under 1292 C2. Well, can I ask you about that? Because I find 1292 C2 to be kind of an unusual provision because it allows for an appeal before a final judgment, which is typically the role in all other cases we would hear. You would have to have a final judgment, including damages. So I can see Congress is created for patent cases, a special provision, so you don't have to get the accounting. You can come up immediately. But a contempt proceeding isn't just... A contempt proceeding can apply in any kind of injunction. And so why should we be looking at a special patent provision instead of a general Supreme Court law on when a contempt order is final? Because this is a specific contempt finding in a patent case. This necessarily involves a finding of infringement once there was a finding of contempt

. Well, I understand that, but what I'm a little concerned about is creating a rule for contempt orders in patent cases that's different from contempt orders in any other kind of injunction case. Hasn't the Supreme Court on several occasions corrected this court when it's created special patent rules in applying general principles of law, particularly with regards to... I think there was an injunction case a number of years ago. But 1292 C2 is a specific situation for this court. If this is a case in the C2, it doesn't say anything about contempt orders. You're asking us to extend it to contempt order. I'm saying it doesn't say... You don't have any precedent one way or another that says 1292 C2 applies to a contempt order, do you? Other than this court has considered and allowed appeals from contempt orders where there have been findings of contempt. I mean, if you look at the way that this court has construed KSM and the Johansson case and the major at Toys case, if there's a determination of everything but damages, this court has jurisdiction. If there's a determination of everything but attorney's fees, this court has jurisdiction. The argument being made is that you should draw a distinction between contempt cases and non-contempt cases, but in patent cases where it is a separate proceeding that is created that has significant adverse consequences. I mean, when you look at the Ray Hallett case, the court, the Supreme Court there on attorney's fees said, you know, regardless of the source of the attorney's fees award, a decision is immediately final and immediately available. And it didn't suggest there weren't drawing the distinction. You know, there wasn't any line drawing as to the source. I mean, it's no different here. I don't think there should be line drawing as to the, in a patent case, whether it's from infringement or assuming contempt or regular infringement judgment

. I don't mean to interrupt you, sir, but you haven't said anything at all about modification of the injunction as a ground of jurisdiction here. Yes. And I thought you might want to say something because of the other side of the argument that you want to be able to provide. Certainly. And certainly, this is a modified, the injunction was modified. Here, pardon? Why? Why? Because it expanded, it applied a new, never before, determined claim construction, and expanded the scope of the injunction to cover not just the method covered in the 4-8 patent, but the products. And the consul- Why is that matter? Because it completely expands the scope of the injunction. I mean, there was never, previously, the limitations that were brought in issue in this contempt proceeding were never an issue before. They were never construed, they were never even raised by the parties. Here, for the first time, as a result of BridgeFords' new and different design, there were new limitations in issue. And there was no way for BridgeFords. And the AEVOE case, it's the same thing. There was a claim construction there in the District Court in the contempt proceeding. Yes. Exactly the same thing. But it would be Contemnor with arguing for a claim construction that was saved from Contem, from infringement, and they lost. So we don't see why there's any difference at all here between this case and AEVOE, of course. Because here we have a different claim construction. There was no way for BridgeFords to understand that. There was no way in AEVOE for the would-be Contemnor to see the claim construction issue they presented

. The issue was argued there was a claim construction issue in the heart of the contempt proceeding, just like there is here. And there was- And it's a point that was missed in the brief that happens to be true. If you look at the District Court opinion in AEVOE. I think that here where you have a new claim construction, and then the injunction is broadened to cover products in a method pattern. But the injunction covered all colorable imitations, and the claim construction was done in that. It may be that the claim construction is wrong, and it reached something that's not a colorable imitation. But that doesn't mean the District Court was modifying the injunction. He was just improperly interpreting his injunction. I think that when the court broadened the injunction to be directed toward the products and adding methods so that BridgeFords can't even practice non-infringing methods that is a broader injunction. It is a modification of the injunction. But you agree to not the colorable limitation language. But with respect to a method pattern, now the terms of the injunction prohibit us from selling the product regardless of the method that is used. And that provides a jurisdiction. I understand your time, but we'll give you a couple minutes. Thank you, Ronald. Okay. Let's hear it from the other side. May I please the court, Captain Kloon, on behalf of the FLE and Patenty Arlington Industries. The court is absolutely correct in the questions asked to my opposing counsel. And that's the fact that there is no jurisdiction here where the underlying District Court's order, where they contempt order finding the accused connectors simply to be colorable imitation of the original enjoined infringing connectors and to be infringing that patent, but not yet having imposed a sanction for that contempt

. Therefore, the sanction you're speaking. Yes, Your Honor. There is a sanction that we're seeking in form of law, profits, and attorneys. Although the third circuit has said that- Bounds a lot in character like the damages and attorneys fees that your opposing counsel were talking about, right? That is correct, Your Honor. However, the third circuit is entitled to, under the third circuit law, the District Court's has wide discretion to actually apply and to award sanctions. And they're not limited to typical just damages under 284 and or attorneys fees. In fact, obviously we're not seeking under statutory provision. We are seeking attorneys fees and costs that are awarded under the contempt findings, which is all based on third circuit law. And so there's not really truly co-extensive with damages and attorneys fees. Well, let me answer this. Under Bosh versus Pylons, if this was a garm variety patent infringement, civil actions, and you were seeking the exact same kinds of money that you're seeking in the sanctions proceeding, what would happen? Would there be jurisdiction here? If it was not a contempt for seating, it seems to be that- Well, it's kind of unclear with Bosh, whether it was limited only in circumstances where it was bifurcated. So if you're asking if it's truly exactly like the Bosh case where damages and attorneys fees were bifurcated in the willfulness determination. Yes, it seems to be that's the court's ruling at this point that under 1292 C2, in a regular infringement action, not in a contempt for seating, the fact that there's still attorney fees or law profits to be awarded. Would not deter this court from being able to hear the underlying merits of the case. However, in this case, and in all of the cases, what we have been able to find, there's not a single case to date from with a Supreme Court or any other circuit that has found that a civil contempt order is appealable before sanctions have been meted out. In the case that Judge Clavanger that you've been discussing with, my closing counsel is the Alexander case, not the Anderson case, to clarify. In that case, actually, the holding was that there was a civil contempt, that the actual witnesses were found to be in contempt. They just had not been fined yet. So contrary to Bridgeport's arguments, there was a finding of contempt, so they were contemptors, but because the punishment had not been meted out, the court found that there was no jurisdiction. Now, of course, that was a 1291 case, but here we have the LMK case, and the LMK case is directly all on boards with the facts of this case, where you have a finding that the products were deemed to be colorable in a patient, and there was no sanctions had actually been imposed. It's not presidential, though, right? That is correct. And it's before boss versus pilot, right? That is absolutely correct, however, although it's not finding, it is under the Discourse Rule of 32.1. It is actually still persuasive, and it actually relies on two cases, which are, excuse me, one case, it relies on the Antigrist case. So for example, for the issue of whether or not that's followed under A1, that is binding on this court, and I'll talk about that in a minute, but with respect to C2, it sites the Ninth Circuit's decision in Donovan. Donovan relies on the Alexander case that Judge Klubbinger was asking Michael to counsel about, and that also, again, we believe is binding. The other thing is really good. The rules here about how you're supposed to get your thumb on the scale one way or the other, for example, it sure sounds like there's a heavy thumb on the scale if you have a contempt order, and you don't actually have your punishment meet it out. But if you're talking about in terms of whether or not an injunction has been modified as opposed to enforced, is there any law that says I'm supposed to be careful and I'm supposed to assume that the court was merely enforcing as opposed to interpreting? Yeah, I mean, I think yes, definitely the Antigrist case, I think, is directly on point for this case, is that when there has been a decision that the injunction, excuse me, when the original injunction, which in this case contrary to opposing counsel's arguments, there has been absolutely no modification to the injunction. It is verbatim the same language that was used before, the only thing the court did as we listed in our brief, we showed you exactly that. And what's happening here is your adversaries saying, well, look behind that and say, look, you said, now I've got a situation where my product is enjoying where we're talking about in principle of the method that I'm so clearly on in a different place I wasn't for. One thing to get at is that the only reason why we're not talking about the merits of this case is because there's a jurisdictional hurdle, which will be easily solved if we say there's no jurisdiction. Then somebody's going to go downstairs, they're going to take care of the damages, they're going to take care of the attorneys fees in a New York minute, it can be right back up here and re-brief the case and reuse judicial resources. So that's why I'm asking whether there's any notion here that you should say, well, if the case looks a little bit close, go ahead and say it's a modification of the injunction instead of an interpretation. That's a very good question. Of course, and we did move to dismiss before briefs for file because we did actually think that was really more than the issue was picked over. Exactly. And I think that's because with some of the arguments made and some of the briefs by bridge courts that there was maybe some issue in the court wanted to have more facts. But the fact is that under under and Tigris and I mean, I don't think really, I mean, subject matter jurisdiction is as you said, it's a threshold issue. So the fact are that you can't you can't find a modification when there isn't one

. It's not presidential, though, right? That is correct. And it's before boss versus pilot, right? That is absolutely correct, however, although it's not finding, it is under the Discourse Rule of 32.1. It is actually still persuasive, and it actually relies on two cases, which are, excuse me, one case, it relies on the Antigrist case. So for example, for the issue of whether or not that's followed under A1, that is binding on this court, and I'll talk about that in a minute, but with respect to C2, it sites the Ninth Circuit's decision in Donovan. Donovan relies on the Alexander case that Judge Klubbinger was asking Michael to counsel about, and that also, again, we believe is binding. The other thing is really good. The rules here about how you're supposed to get your thumb on the scale one way or the other, for example, it sure sounds like there's a heavy thumb on the scale if you have a contempt order, and you don't actually have your punishment meet it out. But if you're talking about in terms of whether or not an injunction has been modified as opposed to enforced, is there any law that says I'm supposed to be careful and I'm supposed to assume that the court was merely enforcing as opposed to interpreting? Yeah, I mean, I think yes, definitely the Antigrist case, I think, is directly on point for this case, is that when there has been a decision that the injunction, excuse me, when the original injunction, which in this case contrary to opposing counsel's arguments, there has been absolutely no modification to the injunction. It is verbatim the same language that was used before, the only thing the court did as we listed in our brief, we showed you exactly that. And what's happening here is your adversaries saying, well, look behind that and say, look, you said, now I've got a situation where my product is enjoying where we're talking about in principle of the method that I'm so clearly on in a different place I wasn't for. One thing to get at is that the only reason why we're not talking about the merits of this case is because there's a jurisdictional hurdle, which will be easily solved if we say there's no jurisdiction. Then somebody's going to go downstairs, they're going to take care of the damages, they're going to take care of the attorneys fees in a New York minute, it can be right back up here and re-brief the case and reuse judicial resources. So that's why I'm asking whether there's any notion here that you should say, well, if the case looks a little bit close, go ahead and say it's a modification of the injunction instead of an interpretation. That's a very good question. Of course, and we did move to dismiss before briefs for file because we did actually think that was really more than the issue was picked over. Exactly. And I think that's because with some of the arguments made and some of the briefs by bridge courts that there was maybe some issue in the court wanted to have more facts. But the fact is that under under and Tigris and I mean, I don't think really, I mean, subject matter jurisdiction is as you said, it's a threshold issue. So the fact are that you can't you can't find a modification when there isn't one. The fact is this court has found in added to the court. I can't say I can look past yes indeed. The injunction says you're injunction you got caught. It's not colorably different. But if I buy the argument that there's been a significant change or either I use it, the claim interpretation argument, although was president at the OA, it wasn't decided on that. Exactly. And then additive controls in KSM and in Muriel, this court said that having a claim construction in a in a contempt for seating is absolutely acceptable. And in fact, the only thing that all the court cases have said, especially Muriel, which is the most recent and the most on point, they said that you just have to ensure that the claim is just. I'll just I will kick the door anymore, but it just seems to me to be a waste of resources. You're going to be back here. We really favor you on jurisdiction. You're going to be back here in print the second half year, briefly because nothing's going to change on whether or not these products are not colorable annotations. And we write back here on this panel, it can be recomposed right after sitting here and hear the argument again. I absolutely agree, Your Honor, and in fact, I mean, we actually offered the defendant to stay this appeal so that we could finish the sanctions hearing. But unfortunately, it's not correct that they have that they're not opposing. I mean, they are they're opposing sanctions. There's been no award. In fact, my clients doesn't even have the benefit of a bond. So there's been absolutely no award against them to say that they've been sanctioned. It's not true

. The fact is this court has found in added to the court. I can't say I can look past yes indeed. The injunction says you're injunction you got caught. It's not colorably different. But if I buy the argument that there's been a significant change or either I use it, the claim interpretation argument, although was president at the OA, it wasn't decided on that. Exactly. And then additive controls in KSM and in Muriel, this court said that having a claim construction in a in a contempt for seating is absolutely acceptable. And in fact, the only thing that all the court cases have said, especially Muriel, which is the most recent and the most on point, they said that you just have to ensure that the claim is just. I'll just I will kick the door anymore, but it just seems to me to be a waste of resources. You're going to be back here. We really favor you on jurisdiction. You're going to be back here in print the second half year, briefly because nothing's going to change on whether or not these products are not colorable annotations. And we write back here on this panel, it can be recomposed right after sitting here and hear the argument again. I absolutely agree, Your Honor, and in fact, I mean, we actually offered the defendant to stay this appeal so that we could finish the sanctions hearing. But unfortunately, it's not correct that they have that they're not opposing. I mean, they are they're opposing sanctions. There's been no award. In fact, my clients doesn't even have the benefit of a bond. So there's been absolutely no award against them to say that they've been sanctioned. It's not true. They're subject to the same injunction that they were subject to since 2004. The fact is though, they've just been ignoring it. They have been found already to be in violation of the settlement agreement that this same injunction was issued from. And this, these exact products actually were already found to be infringing and colorable limitations in a jury verdict in 2009 that was affirmed by this court. But this is the operative task for whether there's a modification, whether there's a modification, whether it changes the legal relationship. And I understand your argument that the district court didn't change any of the words of the injunction, and that seems right. But if by coming up with a new claim construction, he so dramatically changed the scope of the injunction that it changes the legal interpretation. Can't we look beyond the words and say that is a modification? Two reasons why that's not true, Your Honor. First of all, of course, there never was a previous construction of this term. But that doesn't mean that that taking the words to linterful and coming up with a definition of it somehow majorly expanded it. This argument about the fact that it's now going after product versus the method. Again, that's not true. They always, if you look at the original injunction, they always agreed to not sell or offer for sale. So the original injunction, even though the method claim was against the sales of the product, so this is a collateral attack that they're making on the same exact language and the time to appeal. You can sell, not to change. No, but it's just the language of the injunction. So the injunction language did not change. But they actually were enjoined from, and basically there is no non-imferinging use of these products. In fact, we put on a strong case of indirect infringement, and they did not actually put on a single defense to indirect infringement at the trial. They actually based their entire defense on their claim construction and their colorable imitation defense

. They're subject to the same injunction that they were subject to since 2004. The fact is though, they've just been ignoring it. They have been found already to be in violation of the settlement agreement that this same injunction was issued from. And this, these exact products actually were already found to be infringing and colorable limitations in a jury verdict in 2009 that was affirmed by this court. But this is the operative task for whether there's a modification, whether there's a modification, whether it changes the legal relationship. And I understand your argument that the district court didn't change any of the words of the injunction, and that seems right. But if by coming up with a new claim construction, he so dramatically changed the scope of the injunction that it changes the legal interpretation. Can't we look beyond the words and say that is a modification? Two reasons why that's not true, Your Honor. First of all, of course, there never was a previous construction of this term. But that doesn't mean that that taking the words to linterful and coming up with a definition of it somehow majorly expanded it. This argument about the fact that it's now going after product versus the method. Again, that's not true. They always, if you look at the original injunction, they always agreed to not sell or offer for sale. So the original injunction, even though the method claim was against the sales of the product, so this is a collateral attack that they're making on the same exact language and the time to appeal. You can sell, not to change. No, but it's just the language of the injunction. So the injunction language did not change. But they actually were enjoined from, and basically there is no non-imferinging use of these products. In fact, we put on a strong case of indirect infringement, and they did not actually put on a single defense to indirect infringement at the trial. They actually based their entire defense on their claim construction and their colorable imitation defense. So the fact that now, post-infect, this is something that's going on in the district court today, is that they're actually trying to argue now that there's all these non-imferinging defenses. We had four days of hearings. They did not present a single issue on that. So that's again a very questionable argument. But as far as the words of the injunction, in additive controls and in myrial uriner, doing the claim instructions does not mean that there's been, and in fact, in the above, the case that you raised, doesn't mean that there's been a modification. If this court would like to hear about the merits, I'm happy to talk about the merits because we think the evidence was overwhelming. And we'd be happy if there's an affirmance of the case so we could go back down and finish the sanctions of the case. If the court finds that you have jurisdiction, we think there's no question that the bridge court has not met their burden of showing that the court clearly aired in finding that the products were colorable imitation. The evidence was overwhelming to show that they had the same substantially the same function, achieved substantially the same result. And bridge court experts and their arguments against it as the judge noted were inconsistent and not basically they changed their position and really not credible. And so the court did not clearly air in finding that these products were colorable imitation and infringed the patent as properly construed. Now, with respect to the claim instruction as well, if the court would like to talk about that, it would be happy to go into jurisdiction if you excuse me the merits if you would like to continue to talk about jurisdiction. If you have any further questions on jurisdiction. Just one question. The limitations that are being contested now are current infringements. Those were not the same limitations that were being debated 10 years ago during the original litigation. Surrounding was actually contested and in fact it was contested all the way up and through the jury verdict and in fact bridge court. But there are some limitations. The only term that the only term that they are contesting, they are claiming is some major modification is to the cylindrical surface. But the fact is the reason why that should not be an issue is that that would basically put the question of any time the accused infringer and accused of violating an injunction

. So the fact that now, post-infect, this is something that's going on in the district court today, is that they're actually trying to argue now that there's all these non-imferinging defenses. We had four days of hearings. They did not present a single issue on that. So that's again a very questionable argument. But as far as the words of the injunction, in additive controls and in myrial uriner, doing the claim instructions does not mean that there's been, and in fact, in the above, the case that you raised, doesn't mean that there's been a modification. If this court would like to hear about the merits, I'm happy to talk about the merits because we think the evidence was overwhelming. And we'd be happy if there's an affirmance of the case so we could go back down and finish the sanctions of the case. If the court finds that you have jurisdiction, we think there's no question that the bridge court has not met their burden of showing that the court clearly aired in finding that the products were colorable imitation. The evidence was overwhelming to show that they had the same substantially the same function, achieved substantially the same result. And bridge court experts and their arguments against it as the judge noted were inconsistent and not basically they changed their position and really not credible. And so the court did not clearly air in finding that these products were colorable imitation and infringed the patent as properly construed. Now, with respect to the claim instruction as well, if the court would like to talk about that, it would be happy to go into jurisdiction if you excuse me the merits if you would like to continue to talk about jurisdiction. If you have any further questions on jurisdiction. Just one question. The limitations that are being contested now are current infringements. Those were not the same limitations that were being debated 10 years ago during the original litigation. Surrounding was actually contested and in fact it was contested all the way up and through the jury verdict and in fact bridge court. But there are some limitations. The only term that the only term that they are contesting, they are claiming is some major modification is to the cylindrical surface. But the fact is the reason why that should not be an issue is that that would basically put the question of any time the accused infringer and accused of violating an injunction. They would just try to come up with a new thing. But really under this court's mining in Pivo, you have to look at what were the features required to prove infringement in the original case and determine whether or not there was a significant change. I guess I am just wondering is there a case out there where it was appropriate to do a contempt proceeding when the debate was over a new claim limitation that wasn't actually contested during the original litigation? Yes, the additive controls case, the KSM case, the Muriel case. In all of those cases they raised the issue that there was a new claim construction and the fact that they were... Yes, and in fact, because really there was no claim construction in this case because it was... they consented to infringement. I mean there was no... That's part of the problem. If we don't know what specific limitations and claim were infringed at the time that the consenter was put to put in place. But when we are trying to match apples to apples for purposes of how you run the contempt proceeding, we don't quite know. To be honest, we would slightly disagree with that. Bridgeport claims that, but in reality we submitted a claim chart in 2003 and we always maintain that the external surface is exactly what it is here. We had figures and Bridgeports argued that they didn't surround the same.

. They would just try to come up with a new thing. But really under this court's mining in Pivo, you have to look at what were the features required to prove infringement in the original case and determine whether or not there was a significant change. I guess I am just wondering is there a case out there where it was appropriate to do a contempt proceeding when the debate was over a new claim limitation that wasn't actually contested during the original litigation? Yes, the additive controls case, the KSM case, the Muriel case. In all of those cases they raised the issue that there was a new claim construction and the fact that they were... Yes, and in fact, because really there was no claim construction in this case because it was... they consented to infringement. I mean there was no... That's part of the problem. If we don't know what specific limitations and claim were infringed at the time that the consenter was put to put in place. But when we are trying to match apples to apples for purposes of how you run the contempt proceeding, we don't quite know. To be honest, we would slightly disagree with that. Bridgeport claims that, but in reality we submitted a claim chart in 2003 and we always maintain that the external surface is exactly what it is here. We had figures and Bridgeports argued that they didn't surround the same... that they disagreed with what surrounding was. But if you really look at the charts that were there and actually if you look at Bridgeport's original position here in this case, they didn't ever dispute originally up until the hearing that the external flinderable was here. The external surface was everything forward of the flange, excluding the lift. It was only after they realized that their own witness admitted that his new claim construction now was inconsistent with the finding of infringement of the enjoying connector. That he then changed his position to say, oh, there's three external surfaces, which of course is not relevant and it's not supported at all by the patents. That's why the judge is one of the only things in particular. One of the things that Judge pointed out... You said there's no question and that's the issue whether any means one or whether it can mean more than one. Well, of course, that's the thing. It says it can mean one or more. It doesn't have to be required to mean more than one, obviously. But the judge pointed out that that was one of the things where they really were inconsistent in their position. But just to end on one point about the jurisdiction, your honor, is that one of the reasons why the Supreme Court and the other circuits have always found in this court found in LMK is when you don't have a modification to the injunction because it's basically the same language, same products that are being achieved. And they were always required to not make colorful limitations of the enjoying connectors. But more importantly is that Arlington has not actually been awarded any of the sanctions that they're entitled to as the innocent party in this case. Therefore, we would ask this court to set aside and let the court finalize its decision on sanctions and we will be back here on the merits. Thank you

.. that they disagreed with what surrounding was. But if you really look at the charts that were there and actually if you look at Bridgeport's original position here in this case, they didn't ever dispute originally up until the hearing that the external flinderable was here. The external surface was everything forward of the flange, excluding the lift. It was only after they realized that their own witness admitted that his new claim construction now was inconsistent with the finding of infringement of the enjoying connector. That he then changed his position to say, oh, there's three external surfaces, which of course is not relevant and it's not supported at all by the patents. That's why the judge is one of the only things in particular. One of the things that Judge pointed out... You said there's no question and that's the issue whether any means one or whether it can mean more than one. Well, of course, that's the thing. It says it can mean one or more. It doesn't have to be required to mean more than one, obviously. But the judge pointed out that that was one of the things where they really were inconsistent in their position. But just to end on one point about the jurisdiction, your honor, is that one of the reasons why the Supreme Court and the other circuits have always found in this court found in LMK is when you don't have a modification to the injunction because it's basically the same language, same products that are being achieved. And they were always required to not make colorful limitations of the enjoying connectors. But more importantly is that Arlington has not actually been awarded any of the sanctions that they're entitled to as the innocent party in this case. Therefore, we would ask this court to set aside and let the court finalize its decision on sanctions and we will be back here on the merits. Thank you. Thank you, Mr. Anderson. Three. Thank you very much, Your Honor. I appreciate it. First, I'm jurisdiction. I think this court has jurisdiction under either 1292C1 or C2. In the LMK case, this court said or made it clear that post-judgment contempt order is immediately appealable when all that remains is an accounting of damages. The only difference here is that there is also the determination of the quantification of attorney fees and under the rate, how it case and the other decisions that made it clear that attorney fees don't prevent a decision from being immediately appealable. Second, under 1292C1, the old injunction, there was no construction of the two limitations in issue here. And it did not say you cannot sell this particular product, our new design, period. Here, if you look at page A30, 29 and 30, the injunction is much broader. It says, basically, we can't sell, we're permanently enjoined from selling these products. That's broader than anything that any reasonable interpretation could have been from the earlier injunction. If you're an injunction in a method case, you're enjoined from infringing the method. Now we have an injunction that permanently enjoins us from selling these products, even though they can be used and the evidence of the record is that they can be used in a non-infringing manner. On the merits, we're just... Your head is contesting the worth of evidence of non-infringing use

. Thank you, Mr. Anderson. Three. Thank you very much, Your Honor. I appreciate it. First, I'm jurisdiction. I think this court has jurisdiction under either 1292C1 or C2. In the LMK case, this court said or made it clear that post-judgment contempt order is immediately appealable when all that remains is an accounting of damages. The only difference here is that there is also the determination of the quantification of attorney fees and under the rate, how it case and the other decisions that made it clear that attorney fees don't prevent a decision from being immediately appealable. Second, under 1292C1, the old injunction, there was no construction of the two limitations in issue here. And it did not say you cannot sell this particular product, our new design, period. Here, if you look at page A30, 29 and 30, the injunction is much broader. It says, basically, we can't sell, we're permanently enjoined from selling these products. That's broader than anything that any reasonable interpretation could have been from the earlier injunction. If you're an injunction in a method case, you're enjoined from infringing the method. Now we have an injunction that permanently enjoins us from selling these products, even though they can be used and the evidence of the record is that they can be used in a non-infringing manner. On the merits, we're just... Your head is contesting the worth of evidence of non-infringing use. I'm sorry. You're saying that there's non-infringing use of these articles? Yes. And your head is just a second ago, and if I correctly heard her through my hearing age, she said you haven't made that evidence. I'd refer the court to, in the appendix pages, A3640 to 43. Did the original injunction order join you from making using and selling the old connectors? The original injunction, the language, was the same language that was used for... There was a settlement of three cases. Yes, and turn out. Yes. But you couldn't interpret... I mean, we didn't interpret it as being an injunction against actually selling products. It was an injunction in a method case. You can't enjoy... you can't take a method patent and enjoy the sale of products. You have to enjoy

. I'm sorry. You're saying that there's non-infringing use of these articles? Yes. And your head is just a second ago, and if I correctly heard her through my hearing age, she said you haven't made that evidence. I'd refer the court to, in the appendix pages, A3640 to 43. Did the original injunction order join you from making using and selling the old connectors? The original injunction, the language, was the same language that was used for... There was a settlement of three cases. Yes, and turn out. Yes. But you couldn't interpret... I mean, we didn't interpret it as being an injunction against actually selling products. It was an injunction in a method case. You can't enjoy... you can't take a method patent and enjoy the sale of products. You have to enjoy... I mean, it was a settlement. You agreed to it. You couldn't have been ordered that under a judgment if you agreed to a settlement that said, we agree not to sell these products, which I'm looking at the language of the injunction. It pretty much says that. You agree not to sell them, and you agree not to sell colorable limitations. I mean, that's what you agreed to. Yes, but we didn't have a construction of... like we have here of limitations that were never initial. Well, isn't that... I mean, isn't when you agreed to colorable imitation, you're opening yourself up to the district court deciding future products may be a colorable imitation, when applying construction, you might not agree with it. It is used in the method, but you have to have notice for it in effect some idea of what you might be violating in contempt. And when you have a completely different claim construction, and if I may say where the district court went wrong here on the merits, is once it failed to apply the indefinite article rule, the whole thing goes wrong. Because under the indefinite article rule, you can have one or more external cylindrical surfaces. Once you try to force it into being one external cylindrical surface and only one, then you have a wrong construction of plunderable, which is wrong under this court's decisions in international rectifier and in the anchor wall system

. Thank you very much. Appreciate it