Legal Case Summary

I'm the only one who has not seated. Excuse me. That's all right. You've listened very well standing up. We have five cases this morning on the calendar. Patent case from the District Court, a trade case from the Court of International Trade. A contract case from the Court of Federal Claims and two veterans cases, one of which is things submitted in the briefs and won't be argued. Our first case is Silicon Graphics versus ATI Technologies. 2008, 1334 and 1353, Mr. Manning. You indicated you want to take seven, eight minutes and say seven. Yes, ma'am. You have, I counted eight issues to argue. No doubt you'll pinpoint the most important to them. Yes, yes, your honor. Your best arguments. May it please the Court. As to anticipation, ATI has appealed the District Court's Jamoel ruling that the four references presented to the jury do not anticipate. One critical claim construction error that the District Court made in denying ATI's motion for Jamoel was to limit the claims to specialized graphics hardware. The District Court said for the first time in the Jamoel order that the claims were limited to a computer system operating on specialized rasterization hardware that allows for high-speed interactive rendering through a graphics pipeline. These words specialized rasterization hardware, high-speed interactive rendering are nowhere in the claims. There is no word in the claims that could be reasonably limited in this way and certainly the term computer system in the preamble cannot require specialized high-speed rasterization hardware. There are no words of manifest exclusion anywhere in the specification limiting computer system. And SGI's argument importing. Didn't your experts say that the frame buffer was hardware based? Our expert, Judge Radar Dr. Patel, said to my recollection that these claims and that the frame buffer may be hardware based but also would cover software. In other words, that the patent could speak about both hardware and software. In fact, two of the anticipating references open GL and render man or what's called an interface which is basically teaching hardware and software how to interact with each other and how to operate. And so Dr. Patel was always interpreting these claims as involving both hardware and software surely never denying that they covered hardware and that hardware was being spoken about but that the computer system was much broader than hardware alone. Another procedural error in the district courts, Jamelwell opinion, was when the court adopted

. But this is a jury case. The jury then would have had substantial evidence to find that the frame buffer was hardware. We, your Honor, had a motion and limony excluding any references to specialized graphics hardware because we knew that this argument would be made. The motion and limony was held in a balance. Numerous objections were made throughout trial to these arguments and cross examination. Of course, that's going to be an abusive discretion standard. Do you want to tell us that this magnificent district judge abused her discretion? I do believe that to find for the first time in the Jamelwell ruling that these claims were limited to specialized rasterization hardware graphics hardware. But to believe my point is, is the substantial evidence is against you on one point, abusive discretion is against you on the other. You're really rolling up upstream. I do understand that, Your Honor, but we also believe that to have such a finding on these claims with the preamble saying computer system does rise to that level. Another procedural error in the district courts, Jamelwell opinion, was when the court adopted a construction of rasterization that was narrower than the construction provided to the jury. The court found for the first time on Jamelwell that rasterization requires entirely floating point scan conversion. It was not the construction that was in front of the jury for the entire trial nor was it the construction in the jury instructions. The new construction of rasterization requiring entirely floating point scan conversion was adopted at STI's urging a trial and in their Jamelwell briefing over ATI's repeated objections. But talking about what claims 1 to 6? Talk about claims 1 through 6 also claim 9 and really predominantly claims 1 through 16, Your Honor, with respect to the word rasterization. Because claim 1 says which operates on a floating point format. Yes. So what's wrong with that claim construction? If I may request which element the court is referring to and claim 1, the second element? Maybe that relates to cross appeal rather than your argument. I believe it does, but I'm pretty sure. So your agreeing with the supposition that I was making? Yes. But I guess if you could clarify for me, I don't want, and obviously we're not going to get into the cross appeal of this juncture, but it's unclear to me. It seems to me that what you're saying is consistent with what your opponent is arguing in his cross appeal with respect to the construction of rasterization process. Am I wrong about that? No, I don't believe you're wrong about that, Your Honor. And I believe there is some consistency, but I believe that the court for the first time in Jamelwell to find that rasterization required scan conversion entirely. And floating point was wrong because the district court had previously found that rasterization involved translating and filling in. And while scan conversion was entirely in floating point, scan conversion was not a part of rasterization ever throughout the entire trial. So then to find that it was a part of rasterization in the Jamelwell ruling at opposing counsel's urging for the first time in the Jamelwell brief had some inconsistency with which I will address in my rebuttal had some inconsistency with arguments that have been made previously. I believe that under Hula Packard versus Mustek it was improper for the district court to adopt this construction after trial to deny ATI's motion for Jamelwell. I will now move to the issue of abandonment. ATI has appealed the district court's dismissal with prejudice of the invillality counter claims that related to patent claims that were found not infringed on some rejudgment

. The district court found on some rejudgment that 12 claims from the 327 patent were not infringed and there was no longer a case for controversy. The district court thereby divested itself of jurisdiction over ATI's invillality counter claims for the non-infringed patent claims. For counter claims to be abandoned, the court had to have jurisdiction. The court did not have jurisdiction and therefore ATI's counter claims were moved. Is your position that the court didn't have jurisdiction because in the absence of anyone saying anything, the claim, those particular counter claims just were gone? We believe that the court did say something very clearly in the district court's summary judgment opinion. It was a 60-page opinion but that the court very clearly said no case or controversy remained. And hence it was clear that there was no jurisdiction remaining with respect to the claims that were found non-infringed and that the only conversation was... If there's no jurisdiction, those claims weren't dismissed, right? They were still there. You didn't move, did you, to dismiss without prejudice given that you thought there was no jurisdiction? We did not formally move. Someone had to do something with those claims. Even though you're saying there was no jurisdiction, they're still sitting there on the docket and someone has to do something to resolve them, correct? That's correct, Your Honor. That's exactly what we're asking this court to do is to dismiss without prejudice. Which is something you never asked the district court to do? Am I wrong about that? I don't think the court is wrong about that in the discussion that preceded the trial. I cannot point to the record right now where we did that after trial because the court's Jamilwell ruling came down. And when it came down saying that these counterclaims were abandoned, I was shocked. I called the court immediately, requested briefing on the issue and we then briefed the issue and there was a subsequent opinion on the issue in which we believed there were three serious errors that the district court made in that analysis on the abandonment issue which we point out in some detail. In our brief, one of those errors was that the district court indicated that we had not discussed prior to her ruling that we could go forward on these four claims of 17, 18, 22 and 23 that it was that the trial was restricted to those four claims and that just born out completely incorrect by the record, those four claims were discussed explicitly with the court almost in the transcript. Two or three pages immediately before the court ruled that we could go forward. Mr. Mayor, the new one saved me seven minutes here and to that time you can save it or use it. I will save it and I thank you very much. Mr. Bolger. Thank you, Your Honor. Please support. I'm Councillor Silken graphics and I'd like to start by shifting the focus to our appeal and discuss that. Our appeal is on three claims construction rulings and a ruling regarding an implied license. I'm a licensed defense that was asserted as an affirmative defense in this case

. Before I go there though, I'd like to identify two fundamental facts which I believe provide kind of the foundation of this debate and this dispute. The first one is the idea of what the core aspect of the invention is which relates to and all the claims deal with the use of floating point format data throughout an entire graphics pipeline which is comprised of three parts. Can I ask you a threshold question? Am I wrong? I understood the other question. Was the other side arguing in the context of anticipation for the same view of rasterization process that you are arguing for on cross appeal? Is that your understanding of it? It's hard for me to know because they changed their position. They argued that the district court that rasterization required scan conversion and it required it to be entirely in floating point. That's not our position. Our position is that the district court's definition of rasterization was essentially correct. So their expert testified at trial that that's what the definition of rasterization including all those other limitations were and that's why the district court included it in the J-Mall rule. That's all that had to do it. Well you did what the district court said on how she defined rasterization but you disagree with how she applied rasterization process. There was a longer clause on your honor. A rasterization process operating in floating point format and she construed that as requiring 100% floating point throughout the entire rasterization process. That's on of our red brief. It's on page 22, 23 I think for the actual clause that was in dispute. Basically there were three reasons that that was in the ronious conclusion. She construed it. The district court construed it as a whole. That was improper because the claims don't require 100%. We look at the there's a heavy presumption that what the claims say is the correct interpretation. The ordinary meaning should apply. In addition, the specification clearly notes that several points that rasterization can include multiple processes that can be in fixed point which is diametrically opposed to what the lower court ruled on rasterization. I know you are doing also on scan conversion and construction scan conversion. Let's assume we disagree with you on scan conversion and we buy into what the summary the invention says which is scan conversion process is now handled entirely in floating point. Does that affect our analysis of the claims and the use of rasterization process and the claims? It doesn't because rasterization doesn't mandate that scan conversion operate entirely in floating point. Mr. Boninter's calling for says the scan conversion process is now handled entirely entirely as the word on a floating point basis. That's correct, Your Honor. And the reason that there's no disclaimer with that language is because if you read it in context with the rest of the summary of the invention, you can see that they're talking about a number of processes individually operating in floating point. If you go down the next line, you'll see that it talks about various other rasterization texturing, fog, all operating and floating point. And then you read further into the specification, you see that at column 11, lines 39 and 42, that it says one or more of these rasterization processes including scan conversion, fog, texturing can be done in fixed point without the flow

. And then you can see that the scan conversion is now handled entirely as the word on a floating point basis. So the scan conversion is not done entirely entirely entirely entirely entirely entirely in the summary of the invention. So if the person that judge rate of red tea, so if we can strew this, if we read the claims in the context of the specification, and we can strew scan conversion entirely on a floating point process, is requiring that scan conversion be in a floating point. What does that duty or arguments on cross? In those claims that require scan conversion would now be redundant because they also specify floating point parameters. But they would also be very narrow, which goes to my other point, which is that they've basically changed a very trivial number and made a fixed point. The XY coordinate. Before we get to, I guess I'm not clear. You would concede then if we read scan conversion entirely on floating point is being definitional. Then you would concede that the claims that include scan conversion are not in French. 100% floating point as the way the district court ruled, I think that's correct. But why wouldn't that infect our view of the other claims, which don't in reference scan conversion but talk to about a rationalization process, if we all agree that the accused devices go through scan conversion, which is not on floating process? Because the phrasing and the other claims were specifically structured to capture the operation of other rasterization processes other than scan conversion and to require that those other processes operate in floating point. So we would read those claims that don't specifically reference scan conversion as not, not consisting of scan conversion. That would be the proper reading of view of the specification and the number of, but let me address the scan conversion disclaimer argument. Just one for the point because this court has talked about in several cases, approximately. The claims fusion of six should be remanded. Absolutely. And claim one is, but again, I would back and say that scan conversion shouldn't be, there should be no disclaimers on the sole use of summary of the invention paragraph. It's location as a defining because the Praxar decision and the other decisions that this court has identified on this issue where summary of the invention included language that could be construed as exclusionary, like at the word entirely. They went back and they looked through the rest of the specification and how the terms were used in the claims. And Praxar is a good example of this, the voter decision also. And you see that the way of those other statements in the rest of the specification and how the claim was used in the, I'm sorry, how the term was used in the claims, where there was a redundancy by adopting the disclaimer. The court clearly ruled there was no manifest exclusion and no intent to parse out. So if I understand this correctly, what you're really arguing is that lightning or fog, if it's appearing in a motion picture, some complex operation would need a floating point. And more mundane operations for teen operations would stay in fixed point. That's part of this invention. What the invention was about, it wasn't about putting scan conversion entirely in floating point. That's one aspect of it. There are other aspects and that's the important factor here that brings this case into the libel floor shen case and also in the Praxar decision and pulls it out of what happened in the CR bar case. The fact is in this case, the, the difference in Praxar is that the summary statement was later clearly contradicted in the rest of the specification. Do you have a similar indication here? Yes, because what is it? The column 11 aligns 39 through 42

. These specifications specifically states that the enumerated processes above, which include scan conversion and rasterization, can be done in fixed point without departing from the invention. I'm not what line of you. I'm not. 39 through 43. 30 not yet. Where does that include scan conversion? Well, I apologize. The rest of the passage above identifies the various blocks associated with that particular figure, figure I think it's four. And the various blocks are processes with the fall within the rasterization, including texturing and things like that. The same paragraph occurs again at the end of column 12 lines. I can't remember the lines right now, but it's basically the same kind of caution that don't hold us to 100% floating point because there's so many parameters. Computer scientists would know there's too many numerical values that are being handled throughout the entire process of these computer systems. It's flowing 27. Again, it should be noted that one or more of the above blocks completed implemented in a fixed point format without departing from the scope of the present invention. And that in figure five, you'll see there are a number of rasterizing and scan conversion operations within that. But let me just to clarify, even if we were to just agree with everything you've just said with respect to scan conversion, your position would still be that claims to through, well, at least the claims that don't specifically reference scan conversion would still her claim construction with respect to rasterization process would still require a reversal. Absolutely. Her rasterization. Well, let me ask you just hypothetically a housekeeping question, then with respect to that question. If we were to agree with you on that point, does that open up or revisit? Does that throw out all the questions of prevailing party, mootness, invulidity? I mean, does that all re-opens all of those questions, including invulidity parties? Right. But I mean, if the anticipation issue or maybe some of the other invulidity issues that fell off were based on what we've reversed as a claims construction, then all of that has to be revisited, does it not? The way we're issued doesn't because it has nothing to do with the claims that were actually presented a trial. So there's no claim construction, J-Mall issue on that. And the other, even those four claims, if the construction was considered to be so bad that in fact the jury verdict, then that would have to be reversed. But we don't believe it was. We think there are plenty of other reasons anticipation fail in this case. Can I have a couple more minutes? I was going to jump to the Microsoft license, which is a three-year-old and construing that license. And again, it's section 2.4 of the license that they asserted in the Microsoft, which immunized acts when a combination product was found during the fringe to 327 pattern. And it was based on whether the product windows was actually contributed any of the claimed elements within it by use of this term separate in a part. And the error of the lower court was first to focus only on use infringement and not get into discussions regarding.

.. Are all the ATI cards working with windows? No, but a vast majority of... What remains? There are other operating systems out there, Lennox and Macintosh. But the vast majority worked with windows. But windows has absolutely nothing to do with the graphics processing. The only evidence they showed was their expert Dr. Wolf who said that you can't load programs into the ATI card, third party games and things like that, without an operating system, which is absolutely correct, undisputed. However, that's not the separate in part analysis. The separate in part analysis looks at the entire infringement, panically a possible infringing conduct, and assesses whether any of them would be still infringing if windows didn't contribute, it was not part of the combination. And the fact is that the apparatus claims, as we show on page 16 of our reply papers, there's a clear diagram of theirs, unit that shows all of these features, the rasterization circuit, the scanned converter, the fog unit, all of these things are in there, and has nothing to do with windows. So if we affirmed you on the license point and agreed with you on plane construction, would we still need to remand? I think so, you're on, on the way the cases developed, it still needs to go down and add a final determination on the question of infringement. I don't think the record before you is sufficient to provide a finding of infringement by ATI, removing these defenses. And I do have a couple, I'm going to leave a minute, 30 left for my rebuttal, unless there's anything on the Microsoft issue you want to get into. If you want to sit down, I'll give you all your rebuttal back. Mr. Manning, who has good amount of time. Please the court. SGI in their closing argument, and for the first time in writing in Jamal Well Brief, stated that scanned conversion entirely in floating point was a part of rasterization. This claim construction was adopted by the district court for the first time in the Jamal Well Order. SGI concedes on page 14 of their gray brief that ATI does not infring any 327 claim under the construction of rasterization that SGI successfully urged the district court to adopt on Jamal Well. SGI should not be permitted to urge one construction as to rasterization to the district court and argue for a different construction on that same term in this court. It seems to me that maybe the answer or at least a response to your point is that there's a difference between rasterization and rasterization process. And that that explains, I mean, even under the court's claim construction of rasterization that would not preclude what the other side is arguing with respect to a rasterization process in the context of this comprising claim, practiced by the word A. The district court, your honor, to my understanding found that there was no difference and only construed at Markman word rasterization and said that it would then be used throughout the way rasterization is used and as to rasterization process. In the district court's summary judgment opinion, the district court amplified or clarified that construction of rasterization and said rasterization process as a whole, as two parts translating and filling in, which was the prior construction and the construction requested by SGI translating and filling in two parts, not entirely in floating point or that scan conversion was a part of rasterization. And when the district court then found those two parts translating and filling in the process as a whole, the district court said that meant that some aspects of translating and filling in needed to be in floating point. And because we do not do any translating or any scan conversion in floating point, but only X and Y coordinates in fixed point, the court found no infringement and that was the basis of the ruling. But I do believe that there's an inconsistency in the argument they've made at Jamelwell versus what was done in the Markman hearing and we request that the court hold them to the argument they made in Jamelwell to avoid anticipation

. And not attempted and then broadened the definition to come back to include infringement and based on the concession they made in their brief the case would be over. Now if I may, I'll move to the SGI license with Microsoft and then back my time permits to scan conversion. The first problem of the Microsoft license, basically it's this question, can the ATI product in fringe separate and apart by itself when it is not combined with windows? The answer to that question in the district court was emphatically no. The 327 apparatus claims require a circuit structure for performing rasterization until windows provides programming. ATI GPUs are unprogrammed general purpose processors and they cannot contain the alleged infringing structure. That was unrebutted testimony from Dr. Wolf in the district court and any testimony that was cited by their expert Dr. Glyker, district court found did not come close to creating a genuine issue of a material fact. On the second issue, the second problem of the license is assuming intent would Microsoft be liable for inducing infringement and the answer there is emphatically yes. The great grief is the first time that SGI ever argued that inducement is outside the scope of the second problem by not raising it at the district court or in its red brief SGI wave this issue. Now assuming the court goes on and looks at it, this court is well aware of the two aspects of indirect infringement, contributory and inducement, contributory requires knowledge and inducement requires intent, the second problem of the Microsoft license assumed knowledge and intent thereby referencing inducement by referring to intent. Intent has meaning only in the context of inducement to believe that the district court correctly applied the Microsoft license to this case and to these facts and that the district court should be appelled in that regard. Back briefly with the time remaining to scan conversion, I would note that in the patent that columns 11 and 12 in the section cited essentially lines 4 through 46 and column 11 and lines 18 through 32 in column 12 that there is no reference to scan conversion. In any of the and any talk of scan conversion in figure five there is no reference to scan conversion in figure five of the patent. So all of those comments do not relate to scan conversion. Scan conversion is spoken about in the very beginning of the patent as this court has noted and the parties essentially agreed on the definition of scan conversion as the process that specifies which pixels of the display screen belong to which primitives. That's column one lines 31 through 33 and conceded in their brief brief at eight. The only disagreement was whether scan conversion should be entirely in floating point and this court has noted what the words say and I have run out of time and I thank you very much. Thank you Mr. Manning. Mr. Bollinger has time for a rebuttal on your cross appeal. Thank you. Your honor. The first thing I want to make is on the definition of rasterization and the district court got it wrong and when they ruled that it had the 100% as a whole and so our discussions on that are quite clear. That application isn't the right that scan conversion doesn't appear anywhere in columns 11 or 12. It's it's embraced by the term rasterization and in fact if you look at the functional operation in those problems. They I'm not sure if the word actually appears I'm not I don't think it does but if you look at figure five a you can see specifically that there are these polygon rasterization five of one line segment rasterization point rasterization and those are those embrace scan conversion certainly the polygon rasterization does because of the language. But am I wrong that figure for the the portions of column 11 that you were citing to us before went to figure four not figure five the column 12 that with figure five right that the column four and you see rasterization here is broadly identified in five 406 and next to it you have texture fog and anti aliasing and collectively all those described as rasterization. The first block 408 clearly captures an abrasive scan conversion because all of these talk about the scan conversion and it was good that Mr

. Manning identified the definition of scan conversion in the patent because it defines it precisely as we presented in the district court at Markman with power the requirement of entirely floating point. So when you define something in specification and you exclude something like that I think that it gates the effect of the summary of the invention in the statement there I'd like to if I could just jump back briefly to the the Microsoft issue in my remaining time we argued consistently below that the second form required a showing of contributory infringement the district court rejected that and said basically and ruled that all it needs is. Direct infringement of the accused combination to read the second problem of 2.4 double I there's no way that can be properly construed that way the only way to make sense of the second problem is to limit it to contributory infringement and to apply the requirement that if Microsoft is to satisfy that second problem they need to show that it's a staple article commerce with substantial non infringing uses and windows clearly can't beat that. It's it is a staple article and it has substantial non infringing use and that's why they never made that argument they were limited to trying to bootstrap an inducement which we oppose at every stage and unless there's any other questions I appreciate the court's indulgence. Thank you Mr. Ballinger. So in case we take an under advisement. Next case is Shanghai S. well. Now versus the United States and the Sue honey association that I'll. 2009 1163 Mr. Marsha. Good morning I'm here I'm here for Chinese respondents to challenge the Department of Commerce's determination and a second annual review of the anti-dutping video order on honey from China. That period December 1st 2002 from November 30th 2003 we raised three treason appeal all of which relate to the matter in which department calculated so are good values. We know our burden is great. I say I'm certain you will hear today from the Department of Justice and Petitioners and Turners as they have argued in their briefs. The Department is entitled to considerable discretion to have the interpreter the anti-dutping law and the law of this court connect substituted judgment for that of the agency or we wait or re-way the evidence. We accept our burden since we know the discord also recognizes this DLC discretion only goes so far. The Department is required to calculate margins as accurately as possible. That's the key to the number one. Well so the Department cannot accept the seller gets which lead to absurd results. To calculate accurate margins the Department should align as broad and representative sample as possible. And this is critical for our case the fact that the sample size may have many price points does not matter if the sample is not representative. And they are going to refer to the data that they use to calculate the starting value of the EDA. Is it your position that the EDA they use the EDA alone and didn't rely on your your the articles you're posing. But is your position that what they should have done is not just rely on your three articles but relied on some combination of the EDA and the three articles. Yes Your Honor. We accept the fact that the EDA data represents the price of raw honey in one region of India for a representative period. But it's a very limited period

. It's the first half of the period of review and it's one region and it's high priced honey. And we believe that the record shows that the price of honey is very volatile and we believe the record shows the price of honey actually declined in the second half of the period of review. So what the department did is by accepting his price as the price for the entire POR for all of India it ignored substantial evidence on the record as to what the price should be when you look at all of the evidence. And what they they had reasons for discounting the Kerala article and the Jarkhand article and the Giri's in article. Yes Your Honor and we believe that the lead of the reasons they use to disregard those articles are the same reasons they could have used to disregard the EDA data. For example they say that the articles are only for one period. The articles are only for one reason. Single beekeeper. Single producer. Single producer. But if you're operating in a market economy the single producer represents the market. The single producer is selling at a market price because India is a market economy. So the fact that it's a single producer is what we're saying is not a valid reason to reject this article. The EDA data. I mean we admit it has a lot of price points. But the fact that it has a lot of price points doesn't really mean that those price points are representative as to what the price of raw honey is within India but in all of India for the entire period. So the EDA data is part but the reasons that they rejected our data you can reject the EDA data for the same basic reasons. It's not representative of a price throughout India for the entire period of review and it's critical in this case because you know it was multiple producers for the largest area in India. I don't believe the record shows it's the largest area. It is a honey producing region but I believe the records can show that other regions in India are just a significant and honey production. If you look at the EDA data again it's one region. The other articles are data from three other regions throughout the P.O.R. Was the EDA data compiled by a first year business student? I don't know where could the EDA data? The EDA data is on the internet. The EDA has a wonderful stuff. That's the Kerala article of course. Well, you're on articles. This is tough. It's very tough because we're dealing with information that we get from India on the internet

. I'm not saying that the EDA data is not good data for a particular region for a particular period. What I'm saying is that you have all this other data that the department just says no, no, no, no. They reject all the other data we put in the record. And then they reject the other evidence that we put in the record where we show that the price is very volatile. We look at the EDA data itself. It shows from one year to the next price's jump. And then very significantly you have our Tribune Article which was published in the description. The price is in the Kerala region generally or lower. If the economy is not as strong there. The prices are going to be different in different regions of India throughout the period. And that's the exact point we're making. They've allowed, again, one period, one piece of data. Even though it has multiple price points. But of critical importance to us, you look at the Tribune Article which department using another review, which department is said as reliable, so it's of data. And when you look at that Tribune Article, it says that the price declining in the second half of the POR and very significantly it says even if the price was 40 rupees per kilogram, India beekeepers would still be making honey. So here you have the Tribune Article saying that you can make money at a price of 40 rupees per kilogram in India. So what's happening in India was happening in the EDA that you had this tremendous ability of the Indian beekeepers to make a tremendous profit. If you can make money selling honey at 40 rupees per kilogram, the EDA data shows 76. So basically you're taking and what was the reason that they had this tremendous price increase in India. Again, if you look at the Tribune Article, it's because the EU was banning Chinese honey. So the Indians just kind of moved in and it was a tremendous demand throughout the world because of a non-market force where the European Union puts a ban on Chinese honey. So the Indians could increase the price of honey. And then they're taking that same Indian price which has this tremendous profit and you're saying that's the surrogate value of Chinese honey. Where the Chinese, if there's a ban on their export of honey, the Chinese price would be even lower. So we're getting hit really from all points. What they're using and what they're rejecting what we're saying is the department is not looking at the entire record. They're not looking at all the evidence we're putting in. And one more critical point. Now, the very... The fact that they're not looking at it. And opine as to what was not reasonable or why they didn't use it. So they looked at it. You're just disagreeing with the bottom line is to be usefulness and utility. I'm more than... I guess if I'm just saying disagreeing with the bottom line, I'm saying we're reweighing the evidence. But I'm not doing that. What I'm saying is what their whole methodology is flowing. What they're doing is they're looking at each piece of data that we put on the record in isolation. If you take one of our articles, if we had just one article at the EDA, and you put those up there on a board and say, well, which is better? I'm going to have to say that the one article to the EDA, the EDA, is better. But that's not the point. What they should be doing is looking at the totality of the evidence and trying to make the correct decision to get the most accurate margins by looking at a broad and representative database as to what's going on in India throughout the whole P.O.R. And if you're not going to say that one by one, and not going to stand out. You say that the commerce set the normal value based on a raw value of $1,800 per metric ton. Where did you get that from the raw value? The raw value of honey, that is... Where was that in the record? I hope we have a... I had my clerk searching. We couldn't find it. I hope we had a site as how it's to raw. It would be from one of the confidential exhibits, and I think we didn't use a confidential number, but that would be the data of raw honey that is on the record. Can you give me a page site and I'll look at it

.. The fact that they're not looking at it. And opine as to what was not reasonable or why they didn't use it. So they looked at it. You're just disagreeing with the bottom line is to be usefulness and utility. I'm more than... I guess if I'm just saying disagreeing with the bottom line, I'm saying we're reweighing the evidence. But I'm not doing that. What I'm saying is what their whole methodology is flowing. What they're doing is they're looking at each piece of data that we put on the record in isolation. If you take one of our articles, if we had just one article at the EDA, and you put those up there on a board and say, well, which is better? I'm going to have to say that the one article to the EDA, the EDA, is better. But that's not the point. What they should be doing is looking at the totality of the evidence and trying to make the correct decision to get the most accurate margins by looking at a broad and representative database as to what's going on in India throughout the whole P.O.R. And if you're not going to say that one by one, and not going to stand out. You say that the commerce set the normal value based on a raw value of $1,800 per metric ton. Where did you get that from the raw value? The raw value of honey, that is... Where was that in the record? I hope we have a... I had my clerk searching. We couldn't find it. I hope we had a site as how it's to raw. It would be from one of the confidential exhibits, and I think we didn't use a confidential number, but that would be the data of raw honey that is on the record. Can you give me a page site and I'll look at it. Would it be possible for me to send something in afterwards right now? Hopefully he'll get it after I sit down, but I may not be able to. Thank you. But I absolutely can't get that, because that's there. So again, what we're saying is on this particular issue, what the department did is they take one piece of evidence that we put in and compare it to the E data, and it's constant one by one, they knock down every single piece that we have, because the EDA data is not that bad. But what they didn't do is they didn't look at the totality of the record, and they especially ignored all the evidence in the Tribune article as to how Indian beep keepers can make a profit selling at 40 rupees per kilogram, and how the... The tremendous increase in Indian prices in the middle of the POR was because of the ban on EU honey. If you look at everything, if you look at the totality as to what the DOC should have done, rather than go one by one, we think that the way the methodology was contrary to law and the decision was not supported by the evidence. I'd like to talk about, if you have any more questions on the first issue, on the second, really clinical issue, which is financial ratio. And here, it's a little bit different here, the Department of Commerce had two financial statements, they had NHPC, and they had APEAS. And again, the results are just incredibly different, they accepted NHPC, which is an uplift on the honey price of approximately 40%, because of the NHPC ratios, and they rejected APEAS, which is an increase of less than 6%. So because of that decision, again, our margins are much higher than we believed would be proper. And the reason they rejected APEAS is because they said that the financial statement was not complete, because it didn't have an order to report on it. Well, the financial statement didn't have an order to report on it, but we don't believe that sufficient for the Department of Commerce to throw out this statement, which came from APEAS. And we had third party evidence in the record that shows that APEAS is one of the leading exporters of honey from India, and had substantial domestic sales of honey and India. The APEAS report also, and this is very, also very significant, if you look at the balance sheet in P&L, it has an order to stamp on it, and it has an order to number, and it says that these, the orders are shorter accounts. We really have a problem getting information from India, and everybody has a problem. But in this case, the Department of Commerce, they had an order to number, they had a shorter accountings, and they just said, well, it doesn't have a report, the statement's no good. And if the Department of Commerce had a problem, well, do we have to assume that they said the statements no good, what they concluded as I understood it, was that the other statement, the MHPC, which I guess had auditors notes and all of the schedules, was better, was more reliable. Well, isn't that right? Well, they said it was more reliable because you didn't have to report. That was the reason. But if you look at the two statements, and assuming that our statement, let's say, had an order to report, would they have said that the, I mean, the APIS statement, I'm sorry, assuming the APIS statement, had an order to report. I mean, the APIS statement, it's from a shorted account with a number that I assume is a certifying number, and it has a full set of schedules, and I think that's a factual mistake. If you look at the, the APIS order to report, you have schedules listed, A to P, on the back. So what do you want us to do here on appeal, to look at the two reports, the Commerce's judgment was, this one is more reliable because it has all of these notes, and it has all these schedules, and whatever. And we're supposed to, on appeal, say, no, they were equally reliable, notwithstanding more notes, or more information on one and the other. Well, I mean, how, how we to do that on appeal? One thing you could do, which I assume, I don't expect you to do, would say, you know, we're right, and they're wrong, the APIS is more reliable. One thing you can do on appeal, you could say, look, if they didn't have an order to report, let's try to see if you could get an order to report. You have a chart of the account, let the Department of Commerce try to call somebody in India to see if there's an order to report

. Would it be possible for me to send something in afterwards right now? Hopefully he'll get it after I sit down, but I may not be able to. Thank you. But I absolutely can't get that, because that's there. So again, what we're saying is on this particular issue, what the department did is they take one piece of evidence that we put in and compare it to the E data, and it's constant one by one, they knock down every single piece that we have, because the EDA data is not that bad. But what they didn't do is they didn't look at the totality of the record, and they especially ignored all the evidence in the Tribune article as to how Indian beep keepers can make a profit selling at 40 rupees per kilogram, and how the... The tremendous increase in Indian prices in the middle of the POR was because of the ban on EU honey. If you look at everything, if you look at the totality as to what the DOC should have done, rather than go one by one, we think that the way the methodology was contrary to law and the decision was not supported by the evidence. I'd like to talk about, if you have any more questions on the first issue, on the second, really clinical issue, which is financial ratio. And here, it's a little bit different here, the Department of Commerce had two financial statements, they had NHPC, and they had APEAS. And again, the results are just incredibly different, they accepted NHPC, which is an uplift on the honey price of approximately 40%, because of the NHPC ratios, and they rejected APEAS, which is an increase of less than 6%. So because of that decision, again, our margins are much higher than we believed would be proper. And the reason they rejected APEAS is because they said that the financial statement was not complete, because it didn't have an order to report on it. Well, the financial statement didn't have an order to report on it, but we don't believe that sufficient for the Department of Commerce to throw out this statement, which came from APEAS. And we had third party evidence in the record that shows that APEAS is one of the leading exporters of honey from India, and had substantial domestic sales of honey and India. The APEAS report also, and this is very, also very significant, if you look at the balance sheet in P&L, it has an order to stamp on it, and it has an order to number, and it says that these, the orders are shorter accounts. We really have a problem getting information from India, and everybody has a problem. But in this case, the Department of Commerce, they had an order to number, they had a shorter accountings, and they just said, well, it doesn't have a report, the statement's no good. And if the Department of Commerce had a problem, well, do we have to assume that they said the statements no good, what they concluded as I understood it, was that the other statement, the MHPC, which I guess had auditors notes and all of the schedules, was better, was more reliable. Well, isn't that right? Well, they said it was more reliable because you didn't have to report. That was the reason. But if you look at the two statements, and assuming that our statement, let's say, had an order to report, would they have said that the, I mean, the APIS statement, I'm sorry, assuming the APIS statement, had an order to report. I mean, the APIS statement, it's from a shorted account with a number that I assume is a certifying number, and it has a full set of schedules, and I think that's a factual mistake. If you look at the, the APIS order to report, you have schedules listed, A to P, on the back. So what do you want us to do here on appeal, to look at the two reports, the Commerce's judgment was, this one is more reliable because it has all of these notes, and it has all these schedules, and whatever. And we're supposed to, on appeal, say, no, they were equally reliable, notwithstanding more notes, or more information on one and the other. Well, I mean, how, how we to do that on appeal? One thing you could do, which I assume, I don't expect you to do, would say, you know, we're right, and they're wrong, the APIS is more reliable. One thing you can do on appeal, you could say, look, if they didn't have an order to report, let's try to see if you could get an order to report. You have a chart of the account, let the Department of Commerce try to call somebody in India to see if there's an order to report. We don't even know if one ever existed, but let's give it another try to get an order to report. During the court of this proceeding, the Department of Commerce, a question arose as to information in the EDA data. So what did they do? They write a letter to EDA. The question arose during the course as to the Tribune Article. What did they do? They go to the Tribune Article, to the author of the Tribune Article, and they ask him questions to go on the record. I'm not saying we don't, I'm sorry. You want to save three minutes? You're well into that time? We'll give you a call. I'm going to go to the rebuttal. Thank you, Your Honor. Mr. Placini. Mr. President, the Department. Please the court. I'm Commerce relied on the best available information here. First, with respect to the EDA data for valuing raw honey, really the only issue that may be of any concern, the plaintiffs raised, is that somehow the export prices that were placed on the record for raw and processed honey were allegedly lower than the raw value, raw honey prices. However, those export prices were only lower after, as well, adjusted those prices using its own adjustments. In fact, the domestic industry adjusted those prices too and came up with a number that was higher than the surrogate value used by Commerce. Why not just consider all of this information and factor it in or out according to its strength? Well, that's exactly what Commerce did in determining that the... I did rejects it outright. Why not account for it? Well, Commerce did, but it found... You could account for Carola as being a region with lower prices. It would require a little more economic analysis, but you don't. She just rejected. But those articles that say the Carola article were based on much smaller sample sizes or the source of the data is.

. We don't even know if one ever existed, but let's give it another try to get an order to report. During the court of this proceeding, the Department of Commerce, a question arose as to information in the EDA data. So what did they do? They write a letter to EDA. The question arose during the course as to the Tribune Article. What did they do? They go to the Tribune Article, to the author of the Tribune Article, and they ask him questions to go on the record. I'm not saying we don't, I'm sorry. You want to save three minutes? You're well into that time? We'll give you a call. I'm going to go to the rebuttal. Thank you, Your Honor. Mr. Placini. Mr. President, the Department. Please the court. I'm Commerce relied on the best available information here. First, with respect to the EDA data for valuing raw honey, really the only issue that may be of any concern, the plaintiffs raised, is that somehow the export prices that were placed on the record for raw and processed honey were allegedly lower than the raw value, raw honey prices. However, those export prices were only lower after, as well, adjusted those prices using its own adjustments. In fact, the domestic industry adjusted those prices too and came up with a number that was higher than the surrogate value used by Commerce. Why not just consider all of this information and factor it in or out according to its strength? Well, that's exactly what Commerce did in determining that the... I did rejects it outright. Why not account for it? Well, Commerce did, but it found... You could account for Carola as being a region with lower prices. It would require a little more economic analysis, but you don't. She just rejected. But those articles that say the Carola article were based on much smaller sample sizes or the source of the data is... Market economy, they ought to be part of the equation, right? I mean, any price factors into the economy, right? Any price might factor into the economy, but a single small volume... But why do you exclude the three lowest? I mean, that looks a little suspicious. Well, Commerce put it in and then point out that it's a single point on a larger grid. Well, if the Department of Commerce were to do that... It might lower the price a little bit, but that may be appropriate. Well, in this case, any lowering of price would have been infotestinal. The ADA data was based upon 700 beekeepers, and the other articles provided involved either only one producer or was clearly unreliable, because there was absolutely no statement concerning where those prices came from, how the research was done, etc. And in fact, what Commerce did was the 75 value was more in the middle of all the prices. The Tribune article that, as well suddenly embraces, was propered originally by the petitioners, because the values in the Tribune article were higher than the ADA data. So, in fact, the Department of Commerce did not pick the highest value. The value that it ended up with was in the middle of the range of values that were out there. The appendix at 1809 discusses plaintiffs' apparent anomaly as does appendix 714 and 717. Also, the plaintiff's concern about the fact that the ADA data only went for the first half of the period of review is not really relevant here. If you look at the appendix at page 1512, it demonstrates that 86% of the honey produced under the ADA data was produced in March through June. It was produced in the spring, and only 5% was produced in October. So, even if the prices went down by October, that would have been a very, very small change in prices if there were an October ADA price. How do you reconcile the 25% higher normal value than the export price? How do they make a profit at all? Well, at page 32 of our brief, the first footnote, we explain the calculations issues that the plaintiffs raised. In fact, they took a simple average of the ADA data as opposed to a weighted average of the ADA data to come up with what they viewed the ADA normal value to be. But what the Department of Commerce did was took a weighted average because much more honey was produced during the spring. And we explained that fully in our brief at the first footnote in our red brief. So, is the difference is the argument here? I mean, what seems to me you're saying is, because even if we had accounted for the other data, it would have affected it by only by a small amount. So, that's the rationalization for not accounting for it at all. No, it's not a rationalization. What it does is, though, it demonstrates that the plaintiffs claims that the Department of Commerce somehow skewed the data or came up with a patently unreasonable or absurd determination. Just doesn't hold up to the actual evidence before the agency

.. Market economy, they ought to be part of the equation, right? I mean, any price factors into the economy, right? Any price might factor into the economy, but a single small volume... But why do you exclude the three lowest? I mean, that looks a little suspicious. Well, Commerce put it in and then point out that it's a single point on a larger grid. Well, if the Department of Commerce were to do that... It might lower the price a little bit, but that may be appropriate. Well, in this case, any lowering of price would have been infotestinal. The ADA data was based upon 700 beekeepers, and the other articles provided involved either only one producer or was clearly unreliable, because there was absolutely no statement concerning where those prices came from, how the research was done, etc. And in fact, what Commerce did was the 75 value was more in the middle of all the prices. The Tribune article that, as well suddenly embraces, was propered originally by the petitioners, because the values in the Tribune article were higher than the ADA data. So, in fact, the Department of Commerce did not pick the highest value. The value that it ended up with was in the middle of the range of values that were out there. The appendix at 1809 discusses plaintiffs' apparent anomaly as does appendix 714 and 717. Also, the plaintiff's concern about the fact that the ADA data only went for the first half of the period of review is not really relevant here. If you look at the appendix at page 1512, it demonstrates that 86% of the honey produced under the ADA data was produced in March through June. It was produced in the spring, and only 5% was produced in October. So, even if the prices went down by October, that would have been a very, very small change in prices if there were an October ADA price. How do you reconcile the 25% higher normal value than the export price? How do they make a profit at all? Well, at page 32 of our brief, the first footnote, we explain the calculations issues that the plaintiffs raised. In fact, they took a simple average of the ADA data as opposed to a weighted average of the ADA data to come up with what they viewed the ADA normal value to be. But what the Department of Commerce did was took a weighted average because much more honey was produced during the spring. And we explained that fully in our brief at the first footnote in our red brief. So, is the difference is the argument here? I mean, what seems to me you're saying is, because even if we had accounted for the other data, it would have affected it by only by a small amount. So, that's the rationalization for not accounting for it at all. No, it's not a rationalization. What it does is, though, it demonstrates that the plaintiffs claims that the Department of Commerce somehow skewed the data or came up with a patently unreasonable or absurd determination. Just doesn't hold up to the actual evidence before the agency. Well, at my view, they don't have to show that it was patently absurd. They can just show that it wasn't the best and you could have done better, right? Well, what the plaintiffs can show is that Commerce's determination that the ADA data was the best is unsupported by substantial evidence. And one way to do that, because the substantial evidence standard is very differential as Mr. Margot. But it's not necessarily picking between two stark alternatives, which is ADA versus the three articles. What I think they're proposing is some combination. So even if ADA is much better, clearly as a whole than looking at the other three, my question goes to why it seems to me you're answered and why Commerce shouldn't have included or taken account of those articles is simply that, well, harmless error, even if it had it wouldn't have made any difference. Well, not at all, because Commerce fully explained why it found those three other data sources to be unreliable. And there would be, it would be unreasonable. But even if we expected the timing, I thought I understood you did just say, well, yeah, there was a problem with the second half, but it wasn't the entire portion of the second half. It was just one quarter of the second half that should have been affected or treated differently. Well, it was 5%. And the department... We said that you said October. That's correct, but if you look at page 1512 of the appendix, there's only certain months when honey is harvested. So there's, so different months have much larger percentages. And the primary... So the data you would, your argument is our data was only off by 5%. No, in fact, our data, if there was a spike in prices, the October 2002 data that Commerce used as a surrogate for October 2003, was before the date of the spike, any spike that's alleged by the plaintiffs. So, in fact, Commerce's determination is consistent and internally accurate. And in fact, and the remand results, Commerce explained in great detail why the three articles were unreliable. And because of their unreliability, the agency and its professional judgment determined that it would not increase accuracy to add three unreliable sources to the average when there is reliable data. Well, the other side would point out that at least some of the articles or one of the articles was relied on by Commerce and another proceeding, which sort of calls into question, you're like at statement that this information is unreliable. Well, the article is more reliable, but to say it's unreliable entirely, if it didn't restructure it. Well, the article that plaintiffs' alleged was relied upon in a different proceeding was the Tribune article, which had even higher values. And Commerce determined not to use the Tribune article

. Well, at my view, they don't have to show that it was patently absurd. They can just show that it wasn't the best and you could have done better, right? Well, what the plaintiffs can show is that Commerce's determination that the ADA data was the best is unsupported by substantial evidence. And one way to do that, because the substantial evidence standard is very differential as Mr. Margot. But it's not necessarily picking between two stark alternatives, which is ADA versus the three articles. What I think they're proposing is some combination. So even if ADA is much better, clearly as a whole than looking at the other three, my question goes to why it seems to me you're answered and why Commerce shouldn't have included or taken account of those articles is simply that, well, harmless error, even if it had it wouldn't have made any difference. Well, not at all, because Commerce fully explained why it found those three other data sources to be unreliable. And there would be, it would be unreasonable. But even if we expected the timing, I thought I understood you did just say, well, yeah, there was a problem with the second half, but it wasn't the entire portion of the second half. It was just one quarter of the second half that should have been affected or treated differently. Well, it was 5%. And the department... We said that you said October. That's correct, but if you look at page 1512 of the appendix, there's only certain months when honey is harvested. So there's, so different months have much larger percentages. And the primary... So the data you would, your argument is our data was only off by 5%. No, in fact, our data, if there was a spike in prices, the October 2002 data that Commerce used as a surrogate for October 2003, was before the date of the spike, any spike that's alleged by the plaintiffs. So, in fact, Commerce's determination is consistent and internally accurate. And in fact, and the remand results, Commerce explained in great detail why the three articles were unreliable. And because of their unreliability, the agency and its professional judgment determined that it would not increase accuracy to add three unreliable sources to the average when there is reliable data. Well, the other side would point out that at least some of the articles or one of the articles was relied on by Commerce and another proceeding, which sort of calls into question, you're like at statement that this information is unreliable. Well, the article is more reliable, but to say it's unreliable entirely, if it didn't restructure it. Well, the article that plaintiffs' alleged was relied upon in a different proceeding was the Tribune article, which had even higher values. And Commerce determined not to use the Tribune article. And the plaintiffs aren't even alleging that Commerce should use the Tribune article because the surrogate value for honey under the Tribune article would be much higher than the value that the agency came up with in the final results. But the sources that plaintiffs' proffer, none of those have ever been determined to be accurate by the agency. Turning to the use of MPHC financial statements, plaintiffs' biggest complaint about those statements is that it allegedly imposes a last in first-out accounting methodology that apparently skews the final results. If you look at page 8 of S. Wells' reply brief, you'll see a table where they talk about profits and losses under different accounting regimes. I just wish to note that under that methodology, according to plaintiffs, MPHC would have lost money under a first-in first-out accounting. Is honey perishable? There's no information on the record one way or the other about the perishableness of honey. But that would affect this, wouldn't it? It might affect it, but what really affects it here is the appendix at page 1525, which is a portion of the MPHC financial statement itself, where MPHC states that it made a profit. So what plaintiffs are attempting to do is impose a methodology where that doesn't conform to the evidence. The third and final issue is the adjustment for commissions. Department of Commerce simply followed the statute. Under 19 USC, 1677 AD1A, the Department of Commerce has to deduct commissions that were collected or that were paid in the United States by the respondents' affiliates. So that's what the Department of Commerce did here. Now, plaintiffs are alleging that somehow the agency has to make us what's called a circumstances of sale adjustment between whatever costs were incurred by S.Well, in China, in selling the merchandise to its United States affiliate, and compare that with the sales experience of the Indian surrogate company. But under the statute, Section 1677 18, sales of merchandise in non-market economy countries, quote, do not reflect the fair value of the merchandise. So there's simply no means of making such as circumstances of sale adjustment when the activities are conducted in non-market economy country and paid for with non-market currency. And therefore, commerce was well within its construction of the statute in declining to make a certain circumstances of sale adjustment. Thank you. Thank you, Mr. Tossini, Mr. Lberga. Are presenting the honey manufacturers? Yes, Your Honor, thank you. Good morning. May I please record this honey perishable? No. Well, not in a sense a tomato or lettuce is perishable, has a very long shelf life year to serve. But it will eventually degrade, yes, it's a natural product, but it does have a long shelf life, certainly long enough to justify the use of a life-o presumption. That was simply an artifact of how commerce went about adjusting the data to come up with the profit number. It just turned out that it assumed a life-o based on the kind of data they had before them. But there's no evidence on the record that that necessarily skews

. And the plaintiffs aren't even alleging that Commerce should use the Tribune article because the surrogate value for honey under the Tribune article would be much higher than the value that the agency came up with in the final results. But the sources that plaintiffs' proffer, none of those have ever been determined to be accurate by the agency. Turning to the use of MPHC financial statements, plaintiffs' biggest complaint about those statements is that it allegedly imposes a last in first-out accounting methodology that apparently skews the final results. If you look at page 8 of S. Wells' reply brief, you'll see a table where they talk about profits and losses under different accounting regimes. I just wish to note that under that methodology, according to plaintiffs, MPHC would have lost money under a first-in first-out accounting. Is honey perishable? There's no information on the record one way or the other about the perishableness of honey. But that would affect this, wouldn't it? It might affect it, but what really affects it here is the appendix at page 1525, which is a portion of the MPHC financial statement itself, where MPHC states that it made a profit. So what plaintiffs are attempting to do is impose a methodology where that doesn't conform to the evidence. The third and final issue is the adjustment for commissions. Department of Commerce simply followed the statute. Under 19 USC, 1677 AD1A, the Department of Commerce has to deduct commissions that were collected or that were paid in the United States by the respondents' affiliates. So that's what the Department of Commerce did here. Now, plaintiffs are alleging that somehow the agency has to make us what's called a circumstances of sale adjustment between whatever costs were incurred by S.Well, in China, in selling the merchandise to its United States affiliate, and compare that with the sales experience of the Indian surrogate company. But under the statute, Section 1677 18, sales of merchandise in non-market economy countries, quote, do not reflect the fair value of the merchandise. So there's simply no means of making such as circumstances of sale adjustment when the activities are conducted in non-market economy country and paid for with non-market currency. And therefore, commerce was well within its construction of the statute in declining to make a certain circumstances of sale adjustment. Thank you. Thank you, Mr. Tossini, Mr. Lberga. Are presenting the honey manufacturers? Yes, Your Honor, thank you. Good morning. May I please record this honey perishable? No. Well, not in a sense a tomato or lettuce is perishable, has a very long shelf life year to serve. But it will eventually degrade, yes, it's a natural product, but it does have a long shelf life, certainly long enough to justify the use of a life-o presumption. That was simply an artifact of how commerce went about adjusting the data to come up with the profit number. It just turned out that it assumed a life-o based on the kind of data they had before them. But there's no evidence on the record that that necessarily skews. The outcome, yes, if you do life-o or five-o there are two different outcomes, one's higher, one's lower. But there's no evidence that choosing life-o versus that would be wrong compared to five-o in these circumstances. What commerce was charged to do here was to use the best information available it had to it. The EDA data, counsel for the Chinese industry has all but admitted that it was the best information that was on the record. When commerce compared it to the other information, it didn't say that the tribune data was not reliable at all. It said it was less reliable. And that data, the problem with trying to find a way to use all the data that the court's been concerned with this morning, is how does one go about averaging the data when you have different levels of reliability, you have different, how do you wait it? Commerce could have, for example, said, okay, we're going to use the data that we got from the tribune article and the tribune author. That data range from 40 to 105. The median of those numbers, the average, simple average of those numbers is right about 75. It's right about the number that the commerce department used. Those data actually support the number that commerce ended up using in this case. The Kerala article was found to be not reliable. Averaging, unreliable data or less reliable data with the best data doesn't give you a best information available standard in what it gives you. It just degrades the best information that you had. Why aren't all prices in a market economy reputable data points? If you had all prices across the whole economy, they might be. But what you had in this case were individual data points that didn't represent some kind of spectrum. In the EDA data, you had that. Now it was for the second largest honey producing region in India. But it was many data points over a long period of time. These other points were single points in time in a single place. And so it would unfairly wait the overall data toward those points. I see my time is up. Thank you, Mr. Leberto. And I think it's a little frustrating. A couple minutes to the problem. Thank you. Thank you, Your Honor. I'd like to make one point on the financial ratios. On the use of LIFO rather than FIFO

. The outcome, yes, if you do life-o or five-o there are two different outcomes, one's higher, one's lower. But there's no evidence that choosing life-o versus that would be wrong compared to five-o in these circumstances. What commerce was charged to do here was to use the best information available it had to it. The EDA data, counsel for the Chinese industry has all but admitted that it was the best information that was on the record. When commerce compared it to the other information, it didn't say that the tribune data was not reliable at all. It said it was less reliable. And that data, the problem with trying to find a way to use all the data that the court's been concerned with this morning, is how does one go about averaging the data when you have different levels of reliability, you have different, how do you wait it? Commerce could have, for example, said, okay, we're going to use the data that we got from the tribune article and the tribune author. That data range from 40 to 105. The median of those numbers, the average, simple average of those numbers is right about 75. It's right about the number that the commerce department used. Those data actually support the number that commerce ended up using in this case. The Kerala article was found to be not reliable. Averaging, unreliable data or less reliable data with the best data doesn't give you a best information available standard in what it gives you. It just degrades the best information that you had. Why aren't all prices in a market economy reputable data points? If you had all prices across the whole economy, they might be. But what you had in this case were individual data points that didn't represent some kind of spectrum. In the EDA data, you had that. Now it was for the second largest honey producing region in India. But it was many data points over a long period of time. These other points were single points in time in a single place. And so it would unfairly wait the overall data toward those points. I see my time is up. Thank you, Mr. Leberto. And I think it's a little frustrating. A couple minutes to the problem. Thank you. Thank you, Your Honor. I'd like to make one point on the financial ratios. On the use of LIFO rather than FIFO. The Department of Congress made a decision. They used LIFO. They didn't use FIFO. There was no reason for that decision. They just were doing one. We're not doing the other. There was no reason why one was better than the other. But the reason we're making this point, we're not saying they should use FIFO. We're saying if you have to make a choice between LIFO and FIFO in a financial statement. Without having any reason to use one over the other, there's something wrong with that financial statement. To have dramatic difference, there's some flaw in that statement. And that's something the Department didn't consider. They threw out our statement because if they didn't have an auditor's report, they didn't have a piece of paper. Instead of the piece of paper, we have a stamp and a certification. And the possibility of the Department of Commerce would ask they would be able to get that report if the report exists. Nobody knows. And they accepted a report where they arbitrarily selected LIFO rather than FIFO, which gives a difference between... When use of FIFO produce a negative profit? It probably would produce a negative profit. But that's what it would produce. I mean, the Department didn't say, didn't do LIFO because FIFO would produce a negative profit. The Department picked LIFO because they picked LIFO. There's nothing in the record that the White Department made that determination. It's critical to the record, which is that the Department had to make an important assumption. There was no ending inventory in that financial statement. There was no material cost in that financial statement. And because of that, the Department had to go into the air and say, we're going to use LIFO. Now, whether it's right or wrong, may not be more important as the Department had to do it. They took a financial statement that had an incredible flaw and they tried to rehabilitate that statement

. The Department of Congress made a decision. They used LIFO. They didn't use FIFO. There was no reason for that decision. They just were doing one. We're not doing the other. There was no reason why one was better than the other. But the reason we're making this point, we're not saying they should use FIFO. We're saying if you have to make a choice between LIFO and FIFO in a financial statement. Without having any reason to use one over the other, there's something wrong with that financial statement. To have dramatic difference, there's some flaw in that statement. And that's something the Department didn't consider. They threw out our statement because if they didn't have an auditor's report, they didn't have a piece of paper. Instead of the piece of paper, we have a stamp and a certification. And the possibility of the Department of Commerce would ask they would be able to get that report if the report exists. Nobody knows. And they accepted a report where they arbitrarily selected LIFO rather than FIFO, which gives a difference between... When use of FIFO produce a negative profit? It probably would produce a negative profit. But that's what it would produce. I mean, the Department didn't say, didn't do LIFO because FIFO would produce a negative profit. The Department picked LIFO because they picked LIFO. There's nothing in the record that the White Department made that determination. It's critical to the record, which is that the Department had to make an important assumption. There was no ending inventory in that financial statement. There was no material cost in that financial statement. And because of that, the Department had to go into the air and say, we're going to use LIFO. Now, whether it's right or wrong, may not be more important as the Department had to do it. They took a financial statement that had an incredible flaw and they tried to rehabilitate that statement. And we had a statement which the only thing that possibly is wrong with our statement is it's lacking one piece of paper saying the order is saying it's okay, where our statement has a certification and a number... Which you acknowledge that piece of paper might not exist. It may not exist. In which case, what do we need to do? Is that a fact that you can have another audit? No, if the paper doesn't exist, that means our statement is complete. If the paper exists, let's try to have the Department ask to see if it exists. And we put it on the record. But the fact that the Department just summarily threw out our financial statement because it didn't have this one piece of paper which may never existed while at the same time, except the financial statement which didn't have... Admittedly, it didn't have an inventory which made that decision. There's something fundamentally wrong with the process which has such an incredible impact on the final results of the moment. And it's not just acknowledging for the Department to be able to do this and I actually use the word get away with it, but that's what I'm going to say. It's just...it's wrong. They have discretion, but the question has to stop some place and believe this is the place, it should stop. If everything else is in our briefs, thank you. Thank you, Mark. In case we take them on the record.

I'm the only one who has not seated. Excuse me. That's all right. You've listened very well standing up. We have five cases this morning on the calendar. Patent case from the District Court, a trade case from the Court of International Trade. A contract case from the Court of Federal Claims and two veterans cases, one of which is things submitted in the briefs and won't be argued. Our first case is Silicon Graphics versus ATI Technologies. 2008, 1334 and 1353, Mr. Manning. You indicated you want to take seven, eight minutes and say seven. Yes, ma'am. You have, I counted eight issues to argue. No doubt you'll pinpoint the most important to them. Yes, yes, your honor. Your best arguments. May it please the Court. As to anticipation, ATI has appealed the District Court's Jamoel ruling that the four references presented to the jury do not anticipate. One critical claim construction error that the District Court made in denying ATI's motion for Jamoel was to limit the claims to specialized graphics hardware. The District Court said for the first time in the Jamoel order that the claims were limited to a computer system operating on specialized rasterization hardware that allows for high-speed interactive rendering through a graphics pipeline. These words specialized rasterization hardware, high-speed interactive rendering are nowhere in the claims. There is no word in the claims that could be reasonably limited in this way and certainly the term computer system in the preamble cannot require specialized high-speed rasterization hardware. There are no words of manifest exclusion anywhere in the specification limiting computer system. And SGI's argument importing. Didn't your experts say that the frame buffer was hardware based? Our expert, Judge Radar Dr. Patel, said to my recollection that these claims and that the frame buffer may be hardware based but also would cover software. In other words, that the patent could speak about both hardware and software. In fact, two of the anticipating references open GL and render man or what's called an interface which is basically teaching hardware and software how to interact with each other and how to operate. And so Dr. Patel was always interpreting these claims as involving both hardware and software surely never denying that they covered hardware and that hardware was being spoken about but that the computer system was much broader than hardware alone. Another procedural error in the district courts, Jamelwell opinion, was when the court adopted. But this is a jury case. The jury then would have had substantial evidence to find that the frame buffer was hardware. We, your Honor, had a motion and limony excluding any references to specialized graphics hardware because we knew that this argument would be made. The motion and limony was held in a balance. Numerous objections were made throughout trial to these arguments and cross examination. Of course, that's going to be an abusive discretion standard. Do you want to tell us that this magnificent district judge abused her discretion? I do believe that to find for the first time in the Jamelwell ruling that these claims were limited to specialized rasterization hardware graphics hardware. But to believe my point is, is the substantial evidence is against you on one point, abusive discretion is against you on the other. You're really rolling up upstream. I do understand that, Your Honor, but we also believe that to have such a finding on these claims with the preamble saying computer system does rise to that level. Another procedural error in the district courts, Jamelwell opinion, was when the court adopted a construction of rasterization that was narrower than the construction provided to the jury. The court found for the first time on Jamelwell that rasterization requires entirely floating point scan conversion. It was not the construction that was in front of the jury for the entire trial nor was it the construction in the jury instructions. The new construction of rasterization requiring entirely floating point scan conversion was adopted at STI's urging a trial and in their Jamelwell briefing over ATI's repeated objections. But talking about what claims 1 to 6? Talk about claims 1 through 6 also claim 9 and really predominantly claims 1 through 16, Your Honor, with respect to the word rasterization. Because claim 1 says which operates on a floating point format. Yes. So what's wrong with that claim construction? If I may request which element the court is referring to and claim 1, the second element? Maybe that relates to cross appeal rather than your argument. I believe it does, but I'm pretty sure. So your agreeing with the supposition that I was making? Yes. But I guess if you could clarify for me, I don't want, and obviously we're not going to get into the cross appeal of this juncture, but it's unclear to me. It seems to me that what you're saying is consistent with what your opponent is arguing in his cross appeal with respect to the construction of rasterization process. Am I wrong about that? No, I don't believe you're wrong about that, Your Honor. And I believe there is some consistency, but I believe that the court for the first time in Jamelwell to find that rasterization required scan conversion entirely. And floating point was wrong because the district court had previously found that rasterization involved translating and filling in. And while scan conversion was entirely in floating point, scan conversion was not a part of rasterization ever throughout the entire trial. So then to find that it was a part of rasterization in the Jamelwell ruling at opposing counsel's urging for the first time in the Jamelwell brief had some inconsistency with which I will address in my rebuttal had some inconsistency with arguments that have been made previously. I believe that under Hula Packard versus Mustek it was improper for the district court to adopt this construction after trial to deny ATI's motion for Jamelwell. I will now move to the issue of abandonment. ATI has appealed the district court's dismissal with prejudice of the invillality counter claims that related to patent claims that were found not infringed on some rejudgment. The district court found on some rejudgment that 12 claims from the 327 patent were not infringed and there was no longer a case for controversy. The district court thereby divested itself of jurisdiction over ATI's invillality counter claims for the non-infringed patent claims. For counter claims to be abandoned, the court had to have jurisdiction. The court did not have jurisdiction and therefore ATI's counter claims were moved. Is your position that the court didn't have jurisdiction because in the absence of anyone saying anything, the claim, those particular counter claims just were gone? We believe that the court did say something very clearly in the district court's summary judgment opinion. It was a 60-page opinion but that the court very clearly said no case or controversy remained. And hence it was clear that there was no jurisdiction remaining with respect to the claims that were found non-infringed and that the only conversation was... If there's no jurisdiction, those claims weren't dismissed, right? They were still there. You didn't move, did you, to dismiss without prejudice given that you thought there was no jurisdiction? We did not formally move. Someone had to do something with those claims. Even though you're saying there was no jurisdiction, they're still sitting there on the docket and someone has to do something to resolve them, correct? That's correct, Your Honor. That's exactly what we're asking this court to do is to dismiss without prejudice. Which is something you never asked the district court to do? Am I wrong about that? I don't think the court is wrong about that in the discussion that preceded the trial. I cannot point to the record right now where we did that after trial because the court's Jamilwell ruling came down. And when it came down saying that these counterclaims were abandoned, I was shocked. I called the court immediately, requested briefing on the issue and we then briefed the issue and there was a subsequent opinion on the issue in which we believed there were three serious errors that the district court made in that analysis on the abandonment issue which we point out in some detail. In our brief, one of those errors was that the district court indicated that we had not discussed prior to her ruling that we could go forward on these four claims of 17, 18, 22 and 23 that it was that the trial was restricted to those four claims and that just born out completely incorrect by the record, those four claims were discussed explicitly with the court almost in the transcript. Two or three pages immediately before the court ruled that we could go forward. Mr. Mayor, the new one saved me seven minutes here and to that time you can save it or use it. I will save it and I thank you very much. Mr. Bolger. Thank you, Your Honor. Please support. I'm Councillor Silken graphics and I'd like to start by shifting the focus to our appeal and discuss that. Our appeal is on three claims construction rulings and a ruling regarding an implied license. I'm a licensed defense that was asserted as an affirmative defense in this case. Before I go there though, I'd like to identify two fundamental facts which I believe provide kind of the foundation of this debate and this dispute. The first one is the idea of what the core aspect of the invention is which relates to and all the claims deal with the use of floating point format data throughout an entire graphics pipeline which is comprised of three parts. Can I ask you a threshold question? Am I wrong? I understood the other question. Was the other side arguing in the context of anticipation for the same view of rasterization process that you are arguing for on cross appeal? Is that your understanding of it? It's hard for me to know because they changed their position. They argued that the district court that rasterization required scan conversion and it required it to be entirely in floating point. That's not our position. Our position is that the district court's definition of rasterization was essentially correct. So their expert testified at trial that that's what the definition of rasterization including all those other limitations were and that's why the district court included it in the J-Mall rule. That's all that had to do it. Well you did what the district court said on how she defined rasterization but you disagree with how she applied rasterization process. There was a longer clause on your honor. A rasterization process operating in floating point format and she construed that as requiring 100% floating point throughout the entire rasterization process. That's on of our red brief. It's on page 22, 23 I think for the actual clause that was in dispute. Basically there were three reasons that that was in the ronious conclusion. She construed it. The district court construed it as a whole. That was improper because the claims don't require 100%. We look at the there's a heavy presumption that what the claims say is the correct interpretation. The ordinary meaning should apply. In addition, the specification clearly notes that several points that rasterization can include multiple processes that can be in fixed point which is diametrically opposed to what the lower court ruled on rasterization. I know you are doing also on scan conversion and construction scan conversion. Let's assume we disagree with you on scan conversion and we buy into what the summary the invention says which is scan conversion process is now handled entirely in floating point. Does that affect our analysis of the claims and the use of rasterization process and the claims? It doesn't because rasterization doesn't mandate that scan conversion operate entirely in floating point. Mr. Boninter's calling for says the scan conversion process is now handled entirely entirely as the word on a floating point basis. That's correct, Your Honor. And the reason that there's no disclaimer with that language is because if you read it in context with the rest of the summary of the invention, you can see that they're talking about a number of processes individually operating in floating point. If you go down the next line, you'll see that it talks about various other rasterization texturing, fog, all operating and floating point. And then you read further into the specification, you see that at column 11, lines 39 and 42, that it says one or more of these rasterization processes including scan conversion, fog, texturing can be done in fixed point without the flow. And then you can see that the scan conversion is now handled entirely as the word on a floating point basis. So the scan conversion is not done entirely entirely entirely entirely entirely entirely in the summary of the invention. So if the person that judge rate of red tea, so if we can strew this, if we read the claims in the context of the specification, and we can strew scan conversion entirely on a floating point process, is requiring that scan conversion be in a floating point. What does that duty or arguments on cross? In those claims that require scan conversion would now be redundant because they also specify floating point parameters. But they would also be very narrow, which goes to my other point, which is that they've basically changed a very trivial number and made a fixed point. The XY coordinate. Before we get to, I guess I'm not clear. You would concede then if we read scan conversion entirely on floating point is being definitional. Then you would concede that the claims that include scan conversion are not in French. 100% floating point as the way the district court ruled, I think that's correct. But why wouldn't that infect our view of the other claims, which don't in reference scan conversion but talk to about a rationalization process, if we all agree that the accused devices go through scan conversion, which is not on floating process? Because the phrasing and the other claims were specifically structured to capture the operation of other rasterization processes other than scan conversion and to require that those other processes operate in floating point. So we would read those claims that don't specifically reference scan conversion as not, not consisting of scan conversion. That would be the proper reading of view of the specification and the number of, but let me address the scan conversion disclaimer argument. Just one for the point because this court has talked about in several cases, approximately. The claims fusion of six should be remanded. Absolutely. And claim one is, but again, I would back and say that scan conversion shouldn't be, there should be no disclaimers on the sole use of summary of the invention paragraph. It's location as a defining because the Praxar decision and the other decisions that this court has identified on this issue where summary of the invention included language that could be construed as exclusionary, like at the word entirely. They went back and they looked through the rest of the specification and how the terms were used in the claims. And Praxar is a good example of this, the voter decision also. And you see that the way of those other statements in the rest of the specification and how the claim was used in the, I'm sorry, how the term was used in the claims, where there was a redundancy by adopting the disclaimer. The court clearly ruled there was no manifest exclusion and no intent to parse out. So if I understand this correctly, what you're really arguing is that lightning or fog, if it's appearing in a motion picture, some complex operation would need a floating point. And more mundane operations for teen operations would stay in fixed point. That's part of this invention. What the invention was about, it wasn't about putting scan conversion entirely in floating point. That's one aspect of it. There are other aspects and that's the important factor here that brings this case into the libel floor shen case and also in the Praxar decision and pulls it out of what happened in the CR bar case. The fact is in this case, the, the difference in Praxar is that the summary statement was later clearly contradicted in the rest of the specification. Do you have a similar indication here? Yes, because what is it? The column 11 aligns 39 through 42. These specifications specifically states that the enumerated processes above, which include scan conversion and rasterization, can be done in fixed point without departing from the invention. I'm not what line of you. I'm not. 39 through 43. 30 not yet. Where does that include scan conversion? Well, I apologize. The rest of the passage above identifies the various blocks associated with that particular figure, figure I think it's four. And the various blocks are processes with the fall within the rasterization, including texturing and things like that. The same paragraph occurs again at the end of column 12 lines. I can't remember the lines right now, but it's basically the same kind of caution that don't hold us to 100% floating point because there's so many parameters. Computer scientists would know there's too many numerical values that are being handled throughout the entire process of these computer systems. It's flowing 27. Again, it should be noted that one or more of the above blocks completed implemented in a fixed point format without departing from the scope of the present invention. And that in figure five, you'll see there are a number of rasterizing and scan conversion operations within that. But let me just to clarify, even if we were to just agree with everything you've just said with respect to scan conversion, your position would still be that claims to through, well, at least the claims that don't specifically reference scan conversion would still her claim construction with respect to rasterization process would still require a reversal. Absolutely. Her rasterization. Well, let me ask you just hypothetically a housekeeping question, then with respect to that question. If we were to agree with you on that point, does that open up or revisit? Does that throw out all the questions of prevailing party, mootness, invulidity? I mean, does that all re-opens all of those questions, including invulidity parties? Right. But I mean, if the anticipation issue or maybe some of the other invulidity issues that fell off were based on what we've reversed as a claims construction, then all of that has to be revisited, does it not? The way we're issued doesn't because it has nothing to do with the claims that were actually presented a trial. So there's no claim construction, J-Mall issue on that. And the other, even those four claims, if the construction was considered to be so bad that in fact the jury verdict, then that would have to be reversed. But we don't believe it was. We think there are plenty of other reasons anticipation fail in this case. Can I have a couple more minutes? I was going to jump to the Microsoft license, which is a three-year-old and construing that license. And again, it's section 2.4 of the license that they asserted in the Microsoft, which immunized acts when a combination product was found during the fringe to 327 pattern. And it was based on whether the product windows was actually contributed any of the claimed elements within it by use of this term separate in a part. And the error of the lower court was first to focus only on use infringement and not get into discussions regarding... Are all the ATI cards working with windows? No, but a vast majority of... What remains? There are other operating systems out there, Lennox and Macintosh. But the vast majority worked with windows. But windows has absolutely nothing to do with the graphics processing. The only evidence they showed was their expert Dr. Wolf who said that you can't load programs into the ATI card, third party games and things like that, without an operating system, which is absolutely correct, undisputed. However, that's not the separate in part analysis. The separate in part analysis looks at the entire infringement, panically a possible infringing conduct, and assesses whether any of them would be still infringing if windows didn't contribute, it was not part of the combination. And the fact is that the apparatus claims, as we show on page 16 of our reply papers, there's a clear diagram of theirs, unit that shows all of these features, the rasterization circuit, the scanned converter, the fog unit, all of these things are in there, and has nothing to do with windows. So if we affirmed you on the license point and agreed with you on plane construction, would we still need to remand? I think so, you're on, on the way the cases developed, it still needs to go down and add a final determination on the question of infringement. I don't think the record before you is sufficient to provide a finding of infringement by ATI, removing these defenses. And I do have a couple, I'm going to leave a minute, 30 left for my rebuttal, unless there's anything on the Microsoft issue you want to get into. If you want to sit down, I'll give you all your rebuttal back. Mr. Manning, who has good amount of time. Please the court. SGI in their closing argument, and for the first time in writing in Jamal Well Brief, stated that scanned conversion entirely in floating point was a part of rasterization. This claim construction was adopted by the district court for the first time in the Jamal Well Order. SGI concedes on page 14 of their gray brief that ATI does not infring any 327 claim under the construction of rasterization that SGI successfully urged the district court to adopt on Jamal Well. SGI should not be permitted to urge one construction as to rasterization to the district court and argue for a different construction on that same term in this court. It seems to me that maybe the answer or at least a response to your point is that there's a difference between rasterization and rasterization process. And that that explains, I mean, even under the court's claim construction of rasterization that would not preclude what the other side is arguing with respect to a rasterization process in the context of this comprising claim, practiced by the word A. The district court, your honor, to my understanding found that there was no difference and only construed at Markman word rasterization and said that it would then be used throughout the way rasterization is used and as to rasterization process. In the district court's summary judgment opinion, the district court amplified or clarified that construction of rasterization and said rasterization process as a whole, as two parts translating and filling in, which was the prior construction and the construction requested by SGI translating and filling in two parts, not entirely in floating point or that scan conversion was a part of rasterization. And when the district court then found those two parts translating and filling in the process as a whole, the district court said that meant that some aspects of translating and filling in needed to be in floating point. And because we do not do any translating or any scan conversion in floating point, but only X and Y coordinates in fixed point, the court found no infringement and that was the basis of the ruling. But I do believe that there's an inconsistency in the argument they've made at Jamelwell versus what was done in the Markman hearing and we request that the court hold them to the argument they made in Jamelwell to avoid anticipation. And not attempted and then broadened the definition to come back to include infringement and based on the concession they made in their brief the case would be over. Now if I may, I'll move to the SGI license with Microsoft and then back my time permits to scan conversion. The first problem of the Microsoft license, basically it's this question, can the ATI product in fringe separate and apart by itself when it is not combined with windows? The answer to that question in the district court was emphatically no. The 327 apparatus claims require a circuit structure for performing rasterization until windows provides programming. ATI GPUs are unprogrammed general purpose processors and they cannot contain the alleged infringing structure. That was unrebutted testimony from Dr. Wolf in the district court and any testimony that was cited by their expert Dr. Glyker, district court found did not come close to creating a genuine issue of a material fact. On the second issue, the second problem of the license is assuming intent would Microsoft be liable for inducing infringement and the answer there is emphatically yes. The great grief is the first time that SGI ever argued that inducement is outside the scope of the second problem by not raising it at the district court or in its red brief SGI wave this issue. Now assuming the court goes on and looks at it, this court is well aware of the two aspects of indirect infringement, contributory and inducement, contributory requires knowledge and inducement requires intent, the second problem of the Microsoft license assumed knowledge and intent thereby referencing inducement by referring to intent. Intent has meaning only in the context of inducement to believe that the district court correctly applied the Microsoft license to this case and to these facts and that the district court should be appelled in that regard. Back briefly with the time remaining to scan conversion, I would note that in the patent that columns 11 and 12 in the section cited essentially lines 4 through 46 and column 11 and lines 18 through 32 in column 12 that there is no reference to scan conversion. In any of the and any talk of scan conversion in figure five there is no reference to scan conversion in figure five of the patent. So all of those comments do not relate to scan conversion. Scan conversion is spoken about in the very beginning of the patent as this court has noted and the parties essentially agreed on the definition of scan conversion as the process that specifies which pixels of the display screen belong to which primitives. That's column one lines 31 through 33 and conceded in their brief brief at eight. The only disagreement was whether scan conversion should be entirely in floating point and this court has noted what the words say and I have run out of time and I thank you very much. Thank you Mr. Manning. Mr. Bollinger has time for a rebuttal on your cross appeal. Thank you. Your honor. The first thing I want to make is on the definition of rasterization and the district court got it wrong and when they ruled that it had the 100% as a whole and so our discussions on that are quite clear. That application isn't the right that scan conversion doesn't appear anywhere in columns 11 or 12. It's it's embraced by the term rasterization and in fact if you look at the functional operation in those problems. They I'm not sure if the word actually appears I'm not I don't think it does but if you look at figure five a you can see specifically that there are these polygon rasterization five of one line segment rasterization point rasterization and those are those embrace scan conversion certainly the polygon rasterization does because of the language. But am I wrong that figure for the the portions of column 11 that you were citing to us before went to figure four not figure five the column 12 that with figure five right that the column four and you see rasterization here is broadly identified in five 406 and next to it you have texture fog and anti aliasing and collectively all those described as rasterization. The first block 408 clearly captures an abrasive scan conversion because all of these talk about the scan conversion and it was good that Mr. Manning identified the definition of scan conversion in the patent because it defines it precisely as we presented in the district court at Markman with power the requirement of entirely floating point. So when you define something in specification and you exclude something like that I think that it gates the effect of the summary of the invention in the statement there I'd like to if I could just jump back briefly to the the Microsoft issue in my remaining time we argued consistently below that the second form required a showing of contributory infringement the district court rejected that and said basically and ruled that all it needs is. Direct infringement of the accused combination to read the second problem of 2.4 double I there's no way that can be properly construed that way the only way to make sense of the second problem is to limit it to contributory infringement and to apply the requirement that if Microsoft is to satisfy that second problem they need to show that it's a staple article commerce with substantial non infringing uses and windows clearly can't beat that. It's it is a staple article and it has substantial non infringing use and that's why they never made that argument they were limited to trying to bootstrap an inducement which we oppose at every stage and unless there's any other questions I appreciate the court's indulgence. Thank you Mr. Ballinger. So in case we take an under advisement. Next case is Shanghai S. well. Now versus the United States and the Sue honey association that I'll. 2009 1163 Mr. Marsha. Good morning I'm here I'm here for Chinese respondents to challenge the Department of Commerce's determination and a second annual review of the anti-dutping video order on honey from China. That period December 1st 2002 from November 30th 2003 we raised three treason appeal all of which relate to the matter in which department calculated so are good values. We know our burden is great. I say I'm certain you will hear today from the Department of Justice and Petitioners and Turners as they have argued in their briefs. The Department is entitled to considerable discretion to have the interpreter the anti-dutping law and the law of this court connect substituted judgment for that of the agency or we wait or re-way the evidence. We accept our burden since we know the discord also recognizes this DLC discretion only goes so far. The Department is required to calculate margins as accurately as possible. That's the key to the number one. Well so the Department cannot accept the seller gets which lead to absurd results. To calculate accurate margins the Department should align as broad and representative sample as possible. And this is critical for our case the fact that the sample size may have many price points does not matter if the sample is not representative. And they are going to refer to the data that they use to calculate the starting value of the EDA. Is it your position that the EDA they use the EDA alone and didn't rely on your your the articles you're posing. But is your position that what they should have done is not just rely on your three articles but relied on some combination of the EDA and the three articles. Yes Your Honor. We accept the fact that the EDA data represents the price of raw honey in one region of India for a representative period. But it's a very limited period. It's the first half of the period of review and it's one region and it's high priced honey. And we believe that the record shows that the price of honey is very volatile and we believe the record shows the price of honey actually declined in the second half of the period of review. So what the department did is by accepting his price as the price for the entire POR for all of India it ignored substantial evidence on the record as to what the price should be when you look at all of the evidence. And what they they had reasons for discounting the Kerala article and the Jarkhand article and the Giri's in article. Yes Your Honor and we believe that the lead of the reasons they use to disregard those articles are the same reasons they could have used to disregard the EDA data. For example they say that the articles are only for one period. The articles are only for one reason. Single beekeeper. Single producer. Single producer. But if you're operating in a market economy the single producer represents the market. The single producer is selling at a market price because India is a market economy. So the fact that it's a single producer is what we're saying is not a valid reason to reject this article. The EDA data. I mean we admit it has a lot of price points. But the fact that it has a lot of price points doesn't really mean that those price points are representative as to what the price of raw honey is within India but in all of India for the entire period. So the EDA data is part but the reasons that they rejected our data you can reject the EDA data for the same basic reasons. It's not representative of a price throughout India for the entire period of review and it's critical in this case because you know it was multiple producers for the largest area in India. I don't believe the record shows it's the largest area. It is a honey producing region but I believe the records can show that other regions in India are just a significant and honey production. If you look at the EDA data again it's one region. The other articles are data from three other regions throughout the P.O.R. Was the EDA data compiled by a first year business student? I don't know where could the EDA data? The EDA data is on the internet. The EDA has a wonderful stuff. That's the Kerala article of course. Well, you're on articles. This is tough. It's very tough because we're dealing with information that we get from India on the internet. I'm not saying that the EDA data is not good data for a particular region for a particular period. What I'm saying is that you have all this other data that the department just says no, no, no, no. They reject all the other data we put in the record. And then they reject the other evidence that we put in the record where we show that the price is very volatile. We look at the EDA data itself. It shows from one year to the next price's jump. And then very significantly you have our Tribune Article which was published in the description. The price is in the Kerala region generally or lower. If the economy is not as strong there. The prices are going to be different in different regions of India throughout the period. And that's the exact point we're making. They've allowed, again, one period, one piece of data. Even though it has multiple price points. But of critical importance to us, you look at the Tribune Article which department using another review, which department is said as reliable, so it's of data. And when you look at that Tribune Article, it says that the price declining in the second half of the POR and very significantly it says even if the price was 40 rupees per kilogram, India beekeepers would still be making honey. So here you have the Tribune Article saying that you can make money at a price of 40 rupees per kilogram in India. So what's happening in India was happening in the EDA that you had this tremendous ability of the Indian beekeepers to make a tremendous profit. If you can make money selling honey at 40 rupees per kilogram, the EDA data shows 76. So basically you're taking and what was the reason that they had this tremendous price increase in India. Again, if you look at the Tribune Article, it's because the EU was banning Chinese honey. So the Indians just kind of moved in and it was a tremendous demand throughout the world because of a non-market force where the European Union puts a ban on Chinese honey. So the Indians could increase the price of honey. And then they're taking that same Indian price which has this tremendous profit and you're saying that's the surrogate value of Chinese honey. Where the Chinese, if there's a ban on their export of honey, the Chinese price would be even lower. So we're getting hit really from all points. What they're using and what they're rejecting what we're saying is the department is not looking at the entire record. They're not looking at all the evidence we're putting in. And one more critical point. Now, the very... The fact that they're not looking at it. And opine as to what was not reasonable or why they didn't use it. So they looked at it. You're just disagreeing with the bottom line is to be usefulness and utility. I'm more than... I guess if I'm just saying disagreeing with the bottom line, I'm saying we're reweighing the evidence. But I'm not doing that. What I'm saying is what their whole methodology is flowing. What they're doing is they're looking at each piece of data that we put on the record in isolation. If you take one of our articles, if we had just one article at the EDA, and you put those up there on a board and say, well, which is better? I'm going to have to say that the one article to the EDA, the EDA, is better. But that's not the point. What they should be doing is looking at the totality of the evidence and trying to make the correct decision to get the most accurate margins by looking at a broad and representative database as to what's going on in India throughout the whole P.O.R. And if you're not going to say that one by one, and not going to stand out. You say that the commerce set the normal value based on a raw value of $1,800 per metric ton. Where did you get that from the raw value? The raw value of honey, that is... Where was that in the record? I hope we have a... I had my clerk searching. We couldn't find it. I hope we had a site as how it's to raw. It would be from one of the confidential exhibits, and I think we didn't use a confidential number, but that would be the data of raw honey that is on the record. Can you give me a page site and I'll look at it. Would it be possible for me to send something in afterwards right now? Hopefully he'll get it after I sit down, but I may not be able to. Thank you. But I absolutely can't get that, because that's there. So again, what we're saying is on this particular issue, what the department did is they take one piece of evidence that we put in and compare it to the E data, and it's constant one by one, they knock down every single piece that we have, because the EDA data is not that bad. But what they didn't do is they didn't look at the totality of the record, and they especially ignored all the evidence in the Tribune article as to how Indian beep keepers can make a profit selling at 40 rupees per kilogram, and how the... The tremendous increase in Indian prices in the middle of the POR was because of the ban on EU honey. If you look at everything, if you look at the totality as to what the DOC should have done, rather than go one by one, we think that the way the methodology was contrary to law and the decision was not supported by the evidence. I'd like to talk about, if you have any more questions on the first issue, on the second, really clinical issue, which is financial ratio. And here, it's a little bit different here, the Department of Commerce had two financial statements, they had NHPC, and they had APEAS. And again, the results are just incredibly different, they accepted NHPC, which is an uplift on the honey price of approximately 40%, because of the NHPC ratios, and they rejected APEAS, which is an increase of less than 6%. So because of that decision, again, our margins are much higher than we believed would be proper. And the reason they rejected APEAS is because they said that the financial statement was not complete, because it didn't have an order to report on it. Well, the financial statement didn't have an order to report on it, but we don't believe that sufficient for the Department of Commerce to throw out this statement, which came from APEAS. And we had third party evidence in the record that shows that APEAS is one of the leading exporters of honey from India, and had substantial domestic sales of honey and India. The APEAS report also, and this is very, also very significant, if you look at the balance sheet in P&L, it has an order to stamp on it, and it has an order to number, and it says that these, the orders are shorter accounts. We really have a problem getting information from India, and everybody has a problem. But in this case, the Department of Commerce, they had an order to number, they had a shorter accountings, and they just said, well, it doesn't have a report, the statement's no good. And if the Department of Commerce had a problem, well, do we have to assume that they said the statements no good, what they concluded as I understood it, was that the other statement, the MHPC, which I guess had auditors notes and all of the schedules, was better, was more reliable. Well, isn't that right? Well, they said it was more reliable because you didn't have to report. That was the reason. But if you look at the two statements, and assuming that our statement, let's say, had an order to report, would they have said that the, I mean, the APIS statement, I'm sorry, assuming the APIS statement, had an order to report. I mean, the APIS statement, it's from a shorted account with a number that I assume is a certifying number, and it has a full set of schedules, and I think that's a factual mistake. If you look at the, the APIS order to report, you have schedules listed, A to P, on the back. So what do you want us to do here on appeal, to look at the two reports, the Commerce's judgment was, this one is more reliable because it has all of these notes, and it has all these schedules, and whatever. And we're supposed to, on appeal, say, no, they were equally reliable, notwithstanding more notes, or more information on one and the other. Well, I mean, how, how we to do that on appeal? One thing you could do, which I assume, I don't expect you to do, would say, you know, we're right, and they're wrong, the APIS is more reliable. One thing you can do on appeal, you could say, look, if they didn't have an order to report, let's try to see if you could get an order to report. You have a chart of the account, let the Department of Commerce try to call somebody in India to see if there's an order to report. We don't even know if one ever existed, but let's give it another try to get an order to report. During the court of this proceeding, the Department of Commerce, a question arose as to information in the EDA data. So what did they do? They write a letter to EDA. The question arose during the course as to the Tribune Article. What did they do? They go to the Tribune Article, to the author of the Tribune Article, and they ask him questions to go on the record. I'm not saying we don't, I'm sorry. You want to save three minutes? You're well into that time? We'll give you a call. I'm going to go to the rebuttal. Thank you, Your Honor. Mr. Placini. Mr. President, the Department. Please the court. I'm Commerce relied on the best available information here. First, with respect to the EDA data for valuing raw honey, really the only issue that may be of any concern, the plaintiffs raised, is that somehow the export prices that were placed on the record for raw and processed honey were allegedly lower than the raw value, raw honey prices. However, those export prices were only lower after, as well, adjusted those prices using its own adjustments. In fact, the domestic industry adjusted those prices too and came up with a number that was higher than the surrogate value used by Commerce. Why not just consider all of this information and factor it in or out according to its strength? Well, that's exactly what Commerce did in determining that the... I did rejects it outright. Why not account for it? Well, Commerce did, but it found... You could account for Carola as being a region with lower prices. It would require a little more economic analysis, but you don't. She just rejected. But those articles that say the Carola article were based on much smaller sample sizes or the source of the data is... Market economy, they ought to be part of the equation, right? I mean, any price factors into the economy, right? Any price might factor into the economy, but a single small volume... But why do you exclude the three lowest? I mean, that looks a little suspicious. Well, Commerce put it in and then point out that it's a single point on a larger grid. Well, if the Department of Commerce were to do that... It might lower the price a little bit, but that may be appropriate. Well, in this case, any lowering of price would have been infotestinal. The ADA data was based upon 700 beekeepers, and the other articles provided involved either only one producer or was clearly unreliable, because there was absolutely no statement concerning where those prices came from, how the research was done, etc. And in fact, what Commerce did was the 75 value was more in the middle of all the prices. The Tribune article that, as well suddenly embraces, was propered originally by the petitioners, because the values in the Tribune article were higher than the ADA data. So, in fact, the Department of Commerce did not pick the highest value. The value that it ended up with was in the middle of the range of values that were out there. The appendix at 1809 discusses plaintiffs' apparent anomaly as does appendix 714 and 717. Also, the plaintiff's concern about the fact that the ADA data only went for the first half of the period of review is not really relevant here. If you look at the appendix at page 1512, it demonstrates that 86% of the honey produced under the ADA data was produced in March through June. It was produced in the spring, and only 5% was produced in October. So, even if the prices went down by October, that would have been a very, very small change in prices if there were an October ADA price. How do you reconcile the 25% higher normal value than the export price? How do they make a profit at all? Well, at page 32 of our brief, the first footnote, we explain the calculations issues that the plaintiffs raised. In fact, they took a simple average of the ADA data as opposed to a weighted average of the ADA data to come up with what they viewed the ADA normal value to be. But what the Department of Commerce did was took a weighted average because much more honey was produced during the spring. And we explained that fully in our brief at the first footnote in our red brief. So, is the difference is the argument here? I mean, what seems to me you're saying is, because even if we had accounted for the other data, it would have affected it by only by a small amount. So, that's the rationalization for not accounting for it at all. No, it's not a rationalization. What it does is, though, it demonstrates that the plaintiffs claims that the Department of Commerce somehow skewed the data or came up with a patently unreasonable or absurd determination. Just doesn't hold up to the actual evidence before the agency. Well, at my view, they don't have to show that it was patently absurd. They can just show that it wasn't the best and you could have done better, right? Well, what the plaintiffs can show is that Commerce's determination that the ADA data was the best is unsupported by substantial evidence. And one way to do that, because the substantial evidence standard is very differential as Mr. Margot. But it's not necessarily picking between two stark alternatives, which is ADA versus the three articles. What I think they're proposing is some combination. So even if ADA is much better, clearly as a whole than looking at the other three, my question goes to why it seems to me you're answered and why Commerce shouldn't have included or taken account of those articles is simply that, well, harmless error, even if it had it wouldn't have made any difference. Well, not at all, because Commerce fully explained why it found those three other data sources to be unreliable. And there would be, it would be unreasonable. But even if we expected the timing, I thought I understood you did just say, well, yeah, there was a problem with the second half, but it wasn't the entire portion of the second half. It was just one quarter of the second half that should have been affected or treated differently. Well, it was 5%. And the department... We said that you said October. That's correct, but if you look at page 1512 of the appendix, there's only certain months when honey is harvested. So there's, so different months have much larger percentages. And the primary... So the data you would, your argument is our data was only off by 5%. No, in fact, our data, if there was a spike in prices, the October 2002 data that Commerce used as a surrogate for October 2003, was before the date of the spike, any spike that's alleged by the plaintiffs. So, in fact, Commerce's determination is consistent and internally accurate. And in fact, and the remand results, Commerce explained in great detail why the three articles were unreliable. And because of their unreliability, the agency and its professional judgment determined that it would not increase accuracy to add three unreliable sources to the average when there is reliable data. Well, the other side would point out that at least some of the articles or one of the articles was relied on by Commerce and another proceeding, which sort of calls into question, you're like at statement that this information is unreliable. Well, the article is more reliable, but to say it's unreliable entirely, if it didn't restructure it. Well, the article that plaintiffs' alleged was relied upon in a different proceeding was the Tribune article, which had even higher values. And Commerce determined not to use the Tribune article. And the plaintiffs aren't even alleging that Commerce should use the Tribune article because the surrogate value for honey under the Tribune article would be much higher than the value that the agency came up with in the final results. But the sources that plaintiffs' proffer, none of those have ever been determined to be accurate by the agency. Turning to the use of MPHC financial statements, plaintiffs' biggest complaint about those statements is that it allegedly imposes a last in first-out accounting methodology that apparently skews the final results. If you look at page 8 of S. Wells' reply brief, you'll see a table where they talk about profits and losses under different accounting regimes. I just wish to note that under that methodology, according to plaintiffs, MPHC would have lost money under a first-in first-out accounting. Is honey perishable? There's no information on the record one way or the other about the perishableness of honey. But that would affect this, wouldn't it? It might affect it, but what really affects it here is the appendix at page 1525, which is a portion of the MPHC financial statement itself, where MPHC states that it made a profit. So what plaintiffs are attempting to do is impose a methodology where that doesn't conform to the evidence. The third and final issue is the adjustment for commissions. Department of Commerce simply followed the statute. Under 19 USC, 1677 AD1A, the Department of Commerce has to deduct commissions that were collected or that were paid in the United States by the respondents' affiliates. So that's what the Department of Commerce did here. Now, plaintiffs are alleging that somehow the agency has to make us what's called a circumstances of sale adjustment between whatever costs were incurred by S.Well, in China, in selling the merchandise to its United States affiliate, and compare that with the sales experience of the Indian surrogate company. But under the statute, Section 1677 18, sales of merchandise in non-market economy countries, quote, do not reflect the fair value of the merchandise. So there's simply no means of making such as circumstances of sale adjustment when the activities are conducted in non-market economy country and paid for with non-market currency. And therefore, commerce was well within its construction of the statute in declining to make a certain circumstances of sale adjustment. Thank you. Thank you, Mr. Tossini, Mr. Lberga. Are presenting the honey manufacturers? Yes, Your Honor, thank you. Good morning. May I please record this honey perishable? No. Well, not in a sense a tomato or lettuce is perishable, has a very long shelf life year to serve. But it will eventually degrade, yes, it's a natural product, but it does have a long shelf life, certainly long enough to justify the use of a life-o presumption. That was simply an artifact of how commerce went about adjusting the data to come up with the profit number. It just turned out that it assumed a life-o based on the kind of data they had before them. But there's no evidence on the record that that necessarily skews. The outcome, yes, if you do life-o or five-o there are two different outcomes, one's higher, one's lower. But there's no evidence that choosing life-o versus that would be wrong compared to five-o in these circumstances. What commerce was charged to do here was to use the best information available it had to it. The EDA data, counsel for the Chinese industry has all but admitted that it was the best information that was on the record. When commerce compared it to the other information, it didn't say that the tribune data was not reliable at all. It said it was less reliable. And that data, the problem with trying to find a way to use all the data that the court's been concerned with this morning, is how does one go about averaging the data when you have different levels of reliability, you have different, how do you wait it? Commerce could have, for example, said, okay, we're going to use the data that we got from the tribune article and the tribune author. That data range from 40 to 105. The median of those numbers, the average, simple average of those numbers is right about 75. It's right about the number that the commerce department used. Those data actually support the number that commerce ended up using in this case. The Kerala article was found to be not reliable. Averaging, unreliable data or less reliable data with the best data doesn't give you a best information available standard in what it gives you. It just degrades the best information that you had. Why aren't all prices in a market economy reputable data points? If you had all prices across the whole economy, they might be. But what you had in this case were individual data points that didn't represent some kind of spectrum. In the EDA data, you had that. Now it was for the second largest honey producing region in India. But it was many data points over a long period of time. These other points were single points in time in a single place. And so it would unfairly wait the overall data toward those points. I see my time is up. Thank you, Mr. Leberto. And I think it's a little frustrating. A couple minutes to the problem. Thank you. Thank you, Your Honor. I'd like to make one point on the financial ratios. On the use of LIFO rather than FIFO. The Department of Congress made a decision. They used LIFO. They didn't use FIFO. There was no reason for that decision. They just were doing one. We're not doing the other. There was no reason why one was better than the other. But the reason we're making this point, we're not saying they should use FIFO. We're saying if you have to make a choice between LIFO and FIFO in a financial statement. Without having any reason to use one over the other, there's something wrong with that financial statement. To have dramatic difference, there's some flaw in that statement. And that's something the Department didn't consider. They threw out our statement because if they didn't have an auditor's report, they didn't have a piece of paper. Instead of the piece of paper, we have a stamp and a certification. And the possibility of the Department of Commerce would ask they would be able to get that report if the report exists. Nobody knows. And they accepted a report where they arbitrarily selected LIFO rather than FIFO, which gives a difference between... When use of FIFO produce a negative profit? It probably would produce a negative profit. But that's what it would produce. I mean, the Department didn't say, didn't do LIFO because FIFO would produce a negative profit. The Department picked LIFO because they picked LIFO. There's nothing in the record that the White Department made that determination. It's critical to the record, which is that the Department had to make an important assumption. There was no ending inventory in that financial statement. There was no material cost in that financial statement. And because of that, the Department had to go into the air and say, we're going to use LIFO. Now, whether it's right or wrong, may not be more important as the Department had to do it. They took a financial statement that had an incredible flaw and they tried to rehabilitate that statement. And we had a statement which the only thing that possibly is wrong with our statement is it's lacking one piece of paper saying the order is saying it's okay, where our statement has a certification and a number... Which you acknowledge that piece of paper might not exist. It may not exist. In which case, what do we need to do? Is that a fact that you can have another audit? No, if the paper doesn't exist, that means our statement is complete. If the paper exists, let's try to have the Department ask to see if it exists. And we put it on the record. But the fact that the Department just summarily threw out our financial statement because it didn't have this one piece of paper which may never existed while at the same time, except the financial statement which didn't have... Admittedly, it didn't have an inventory which made that decision. There's something fundamentally wrong with the process which has such an incredible impact on the final results of the moment. And it's not just acknowledging for the Department to be able to do this and I actually use the word get away with it, but that's what I'm going to say. It's just...it's wrong. They have discretion, but the question has to stop some place and believe this is the place, it should stop. If everything else is in our briefs, thank you. Thank you, Mark. In case we take them on the record