and components of the claim system in order to prove liability or i'm sorry to plead liability for use under section two seventy one  the the main components of the system are the modules that reside in the backend of the accused tokenization system so those are in the physical possession of the credit card companies so let's take for example a master card master card possesses physically possesses the those components but if your honour's will look at the  preamble language to the system claims it includes a for example world wide cloud infrastructure including a plurality of devices  the part of that plurality of devices here would be the point of sale device at the nec donald store that is used to transmit the personal account wide why don't we go to the eight sixty pat claim nine if page twenty one of the appendix and if your honour's are all there a system for authorizing access to digital content using a worldwide cloud system infrastructure the infrastructure compris g connected modules in operation is computing in storage now just to focus on that language those are the six modules that i referenced before that do reside at the back end of the system but reading out is not within control and not in physical control what we argue however your honor or functionally well they're in control and you don't have to actually control or critically injured the module that's correct that is our position here or i'm not sure if it makes a difference i thought one way you could make your poi is to say mcdonald's is indirectly controlling everything by sending that everything that is listed in these modules by indirectly the signal that they automatically makes all of that  the computing in storage prizing a server a database devices and  macdonald's comes into the scope of this claim and if if you look at the scintilla in case for example which holds the use under section two seventy one of a system cl complaint would be the point of sale device that receives the customer's personal account number or what's referred to as a pan which is the personal credit card information point out this claim language which we're referring the court to now however we did attach these patents to the complaint and if anything mr grecia should have been wrong about said gillian but also the premise of your argument is wrong if you read these claims properly and that's going to be a matter for claim construction later in the proceeding there is actually a physical mcdonald's stores contain these point of sale devices and we did allege all of this claim language by attaching the patents to the complaint would you when when the court because the these data processing devices that would this language in the preamble doesn't extend to the six components which we cannot allege  because we had alleged in the original complaint that there was no physical control over the six components and that this preamble language was of no moment and that we could not even if we amended the complaint could not plausibly allege use liability under section two seventy one and if you get did you latest i mean so just so you're on the same page i am i think everybody agrees that on the facts as understood by the district court on the motion to dismiss on the facts that cases a little bit different from sent to lee and to my mind at least that leaves the question should that difference make a legal fair for difference and i do not personally find that particularly easy question we have briefs in which the two parties talk about two cases and nothing else nothing about the history of they use the term in the statute in the history of they use the term in supreme court precedent you're standing here and saying actually the case really doesn't involve but call it the hard question of a pure use of system assertion where the entire system is in somebody other than to have raised that your honor let the address that gratiano is his position is that scintilla and does control here in that case this court held that physical possession of the components has nothing to do with the use analysis but you're putting us in a position where we have to decide that issue because you haven't what they say well the preamble is itself limit plurality of data processing device in which these modules operate the modules don't operate in isolation but rather they need these other elements of the claim part of which is the data processing devices which mcdonald's does physically possess and which sends the query to the good morning your honour's to address briefly the threshold question that was raised here whether there's a fact issue i'd like to address that that's been that's been waived there was no arguments in opposition to the motion to dismiss that the preamble created a limitation for a point of sale device that may cause i think they would agree with that they said they moved relieved and after the motion to dismiss was granted in ways this point was not an issue that was raised in opposition to the original motion so that so when for example a district court in the seventh circuit dismisses a civil rights complaint for wealth pro reason and and then the plaintiff says well give me leave to him and the answer is no you can't do that because you didn't say that the first time i think your honor that the rule is i understand it is that in opposing the opinion responding to the reconsideration request applying the factors in the southern circuit and found that there wasn't sufficient grounds for reconsideration however i don't believe that the  the denial of the motion for reconsideration my understanding is it's with prejudice but again that issue hasn't really come up and i think the other the other point is in the it that issue there was no need for a claim construction because of the way that complaint was pleaded the complaint did not allege any elements of the system other than the six components and in fact the reason why this  procedure or procedural context arose was because the complaint provided very detailed allegations reading the claims and claims system components onto the credit card system and so the complaint in other words laid out essentially a claim chart where mcdonnell's didn't appear and i think based on that we moved to dismiss saying this is a legal question mr grecia posed and that's basically how the issue comes before the court today was your opponent says well what we did we did have a complaint and we attached to the complaint the the patent and in a way it's almost as a talk to the court to find argument that sort arguably implicit in in some submission to the court is that the court has some obligation to dig that out and figure it out for itself my understanding is that the arguments have to be made explicitly and briefed and address direct way and that i don't believe that was that was done in this case think you can go on and argue the larger question the more difficult question what some tell you news but i think the panel would like most parties to just to grief this question of whether the motion for lea to amend should have been granted and whether the motion for leave to him and brought this case with incentive because our it would then allege that one of the components decided pretty close in time to one another and they both address a similar fact situation our view is they need to be reconciled it's really only one way to do it in both of those cases there is a system cli user using in the colloquial sense of the word is using the personal computer the personal computer is sending a signal into the system and the system the end user the system i'm sorry it's not the end user of the system  i think that a distinction needs to be made between using in the colloquial sense and using in the sense of infringement for patmore purposes and i think the distinction is made by what the claim say i think yes in every infringement analysis you start with the language of the clans and in both sent telly and and in uniloc the score properly went first to the claims to see where the boundary lines were drawn in the scintilla in case the court said very explicitly that this was a question of a system that was included components within the claim boundaries they were up where they had more than one operator or multiple operators and so the court said in that case we have never directly address the issue of infringement for use of the system claim that includes elements in the possession of more than one actor and we are shorthand word for that is a multiple operator system that is client jump data and then receiving back or he just receiving so sending and receiving from a point outside of the claimed system so mcdonald's has a point of service device like a card reader so when someone comes to buy some burger from mcdonald's either the customer will swipe a card or the person behind the register will swipe the card a signal gets sent into a system which allegedly practices the claimed invention and the six system components in the claim are all at the back and which is owned by the credit card company whether it's a master card or visa so mcdonald's would send a signal and get a verification ultimately back the claim addresses tokenization process a verification essentially a security method which is all contained within the six components on a credit card system so a mcdonald's would the front end components were part of the claimed invention as the claim was drafted here it's not in that sense it's exact our case is exactly like the you know law case and uniloc microsoft operated the back end of the system microsoft clearly that the claimed components included only components in the possession and control of microsoft and not yet not quite the claimed components right there in the court say something like there were certain components the component in the p c that had to be met but it didn't but i think the language was it was the environment within which the other claimed components had to be used and microsoft because it used those other ones in an environment that in which there was a p c somewhere in the picture but there had to actually be in the case your honor was that microsoft was claiming that did not have use liability because it did not control end users computers and the court as i read uniloc said that while the user computers are part of the operating environment in which system operates as a whole the way the claim was written the of the components all read onto the microsoft equipment only so  answer and therefore microsoft was a user correct not net that didn't that there was no issue in that case about whether microsoft was the only that's correct your honor and i don't believe this address the situation where multiple parties were consider users of the same system for the same use i don't i don't you're right that's not in in the uniloc decision and the question there wasn't i think i repeat my statement that it was frustrating to me that the briefs which are tiny discussed two cases each one of which is not exactly on point on their facts different language may be pointing in different directions but i want to put that aside for a minute at which point i want to say well we better widen our field of review to other sources of law statue  history what the supreme court has said about what it means and we have none of that none of that to tell us when we have to relativity recent cases and we now have a slightly new fact pattern what do we do with it so it's not much of a question i guess or old i understand your frustration your honor i get the gist of your point and i understand my response would be that mcdonald position is the answer from a policy perspective would be that you have to look at the claims the claims are primary the claims to find the scope of what the inventor nobody believes and think the question is if if the question so i think it's a policy matter the answer should be no one isn't because it renders the claims it undermines the point of the clients you can claim a system in many different ways you can claim a single components multiple components you can draw the boundary lines wherever you like if you take the position that anyone who has some obtain some benefit from the system and the claim system at some level and and and and directly or indirectly controls and directly or indirectly emanation that's that's correct your honor so sending a signal into the sends a signal and gets a signal back and gets a benefit that's basically what we're talking about if we say that person is a liable for using the system then regardless of where the claim lines are drawn then we're undermining the role of the claims then we're then we're  imposing use liability on someone who is entirely outside the client's doesn't physically possess or directly control they can't pull the plug on and they can't change they can not send the signal and t gather it's a premise for the issue we're discussing the signal does in fact you know push the first domino and all that other dominoes fall right behind that there's no there's no question about  claims and saying someone that there's not directly possessor control is liable then perhaps the customer may be the customer not mcdonald's once we're outside the claims we're where do we how far do we go and where do we end i think mcdonald's position is the proper rule is to look at the scope of the claims and aren't standing of the uniloc decision as this is what the judge or the court did in in uniloc is to say if you look at the claims you have to distinguish between the greater operating environment which is not claimed specific and what the claims say simply because there would i be right and i guess wondering about the following write a message claim exactly like the system claims that it's everything in house receiving not sent so that it's all done by one person and then you want to capture exactly the same thing you're saying when you write the system version  you really shouldn't do that you really ought to put in the sending and not just the receiving it order to capture the one who is actually controlling the thing indirectly b module i that's a good question or i don't i can't answer that i don't know that you know what the brand model is i don't believe that there's a branding much i know there's not a branding model that is in mcdonald's direct control i don't know associated with customers credit card information the token is then used at the point of sale and so mcdonald's benefits from that in a number of ways primarily it more secure transaction that is not as susceptible to hacking also there's there's more practical if anyone's actions hacked donal's liable for that as of october two