principle a disagreement between the parties is one of clean constructs and the issue is whether dialect standardization includes all within the same st or source language replacing a term with a common term notwithstanding dialect variations or if it's limited to replacing a term of a st dialect with a common term  whatever they want but in the interest of time let me move you to a kind of nd issue reclaim conception what is that a lie did and we just go to the question so tell me your position on why irrespective of whether we agree or disagree with all the nuances the district courts claim construction can we not affirm this based on no infringement in any of that why isn't the record is that your view that the down from the district court we quired as to whether microsoft had documents or information that would enable the plaintiff to determine the  expert to determine whether there were translations that would fit within the court's claim construction and that's laid out in in the reply brief in the appendix of microsoft representatives had no documents or reports which would identify those translations searches which would comport with the claim construction of dialectal standardization apart from those that did not that further amended and final infringement contentions and while we presented our motion for not infringement based soley on the claim construction and that was  would obviously not be proper because it would march the judge what we have before us but why are they not free to make this record the alternative argument that there was no infringement under any claim construction under any multiple grounds and the district court affirms on one grounds doesn't determine doesn't decide the other case goes up on appeal the appellate court can look at the alternative grounds and that motion to determine if they can affirm the decision of the district court based on one of those alternative grounds that would be glaxo versus they did they said no infringement under any claim construction the district court decided not to rule on the ground because it will be on the other grounds but that doesn't mean they didn't all across the ocean or that they weren't entitled to  it and he did rely on the stay pertaining to the microsoft motion when the judge decided that it moved did the microsoft motion so from his perspective and we agree with it what what was left after the judge decided our motion was really one of an advisory opinion and in the cases that microsoft are alliance upon black so only in housewares hill ron paul discussed in our reply brief involve a different procedural posture and it's where the judge district court judge is faced with the defendant's motion several grounds and only decides one in that case this court does have authority and jurisdiction to affirm the judgment of the district court on one of the alternative grounds our case judgment on which this appeal is based is totally from our motion which is based on errors of claim construction of the microsoft motion was mooted when the judge decided our that says we can't do that well it is well settled that the district court has no jurisdiction and therefore this court doesn't render an advisory opinion based that if they can provide alternative grounds for for finding some no imprint it's not an advisory opinion it's just old one of the cases correct that's correct in the abstract but the facts here  different alternative grounds argument that was used by microsoft was not rule right for determination in the district but that was what i was trying to get out before why wasn't it  had sufficient discovery we made the latter argument because the case with state clued in discovery including source code review by joint stipulation an order entered by the court pending the ruling on claim construction and stayed in all respects discovery final infringement contents therefore the microsoft motion for judgment of not infringement on other non plain construction grounds was not right to be ruled upon by the court that's what the judge district court judge ruled and that did use are you saying the district court judge said because there's been no discovery on this issue this motion he said he this conclusion was it wasn't right the main part of his reasoning as from the new point the memorandum in order of may th two thousand and nineteen your honor and is that appendix sixty five and microsoft's agreement than improved has failed to satisfy a required element of the cause of action should that's and then the court goes on in the next paragraph the next three paragraphs that the court need not address microsoft's affirmative defenses and one of those was not infringement and its motion for summary judgment was based on that affirmative defense there was no that's on our client that sorry to opposition we oppose the motion on several grounds and it didn't specifically address the issue that if the matter was not right given the state but we certainly made that clear  in our opposition to the motion in some detail and and that is a matter independent of the court's decision that moot the case the summary judgment motion from microsoft premature because you would need more discovery because there was a state on the case of discovery so you made that that was your response to the cross mention for summary judgment there were three all three of those grounds were asserted in our opposition to the microsoft motion but the only one and i don't as i look at it i don't think there was any decision by the court on the on the substantive opposition had not met or heard and there were tribal issues the fact i don't think the judge the district court follow a rule fifty six response we pointed out that there was a stay in place so there isn't even an opportunity to request additional discovery and that was the posture of the matter before the district court just that's not right is contrary to the stipulation and so the court's procedure the court established you know counsel argument that he needed more discovery in order to oppose summary judgment well that is premature because i have not had an adequate time for discovery is it is a response a summary judgment expressly permitted under the terms of the of the joint motion and stipulation that would be a response to microsoft's cross motion for s judgment which was expressly permitted and i want to talk a little bit about the supposed need for more discovery decide the fact that improved search didn't invoke the the procedure that you would invoke when when that's a concern   pro search had this had access to the source code for many months before any state was in place it had technical documents from microsoft before that it made no attempt to depose anyone about any of that even w state was in place and i think more importantly we submitted in support of microsoft's cross motion for summary judgment a declaration of garrett common aga senior engineer at microsoft to explain how the accused product works and not only did improve search not dispute any of his factual statements about how the product works its expert at appendix page one thousand three hundred and ninety five paragraph seven affirmatively accepted them is true  they did not improve search did not take issue with any of the statements in the common august declaration and what that declaration establishes among other things is that the bing search engine the seuss product not extract and replace any content words which is a requirement of both parties proposed constructions as part of the construction approves or says should apply and also being does not use a  language search engine it doesn't search using words in the nd language or fulfill that element of the claim claim requirements which is also a part of the searches own construction so i think that  given that they did not take issue with any of the factual statements that microsoft advanced this notion that somehow discovery would have changed things after they affirmatively accept that these is true that just doesn't make any sense end and council also argued that somehow the black and around cases are different they're not different at all the proposition is well settled when you present multiple grounds for summary judgment in the district court which is what happened here the district court except one and either rejects or doesn't address the others the others are available on appeal as an alternative grounds for affirming back the judgment that the district court reach assuming we agree with you we have the authority to the question is whether that's what we should do so why isn't it the better even if again all of this assumes that we can affirm on plain construction which no one decided but assuming that's where we are why would the better route still be to send the staff to the district court let the district court decide if they make a motion whether he should grant them or discovery on this question and  sixty which they did not do and for good reason i submit they had plenty of opportunity for discovery notwithstanding the stays and discovery won't make any difference because they have they have effectively stipulated statements in the common aga declaration are true and given the truth of those statements they cannot establish infringement as a matter of law under their under their own point construction so there isn't even if they have had a right to more discovery which which i submit they don't given the procedural posture in the in their failure to invoke rule three thousand and sixty it would accomplish nothing because they've already in effect stipulated away infringement by the by the the the way they responded to our motion and the comment i got declaration i don't know if the court has any further questions on the alternative grounds issue i'm happy  to to address them i'm also obviously prepared to talk about the coin construction issues i'll just say briefly there that the claims all require dialectal standardization of a constant work not just other aspects of the claim construction the more commonly known not only is that included in the description of the present invention in the summary of and the invention in the patent but as as dr shamos improves searches on expert ma no question thank you very much responding to his argument i'm clean construction and then you'll have a few minutes to talk about whatever you want to on the other issues that we were pressing on thank you your honor let me deal with the principal issues on cl construction for the as mr allen mentioned the main point that mike microsoft makes is that the improved search construction would read the work dialectal out of the claim language and the district court picked up on that agreed with microsoft limited to one or the other and microsoft contends that the purpose the reason its construction should be adopted is that the purpose of dialectal standardization is to account for dialectal variation before in responding we could make a rule fifty six requests for discovery the whole point of of the stay was to put a hold on discovery and any other  issues that the parties wanted to pursue pending the outcome of the motion that improves search intended to make the to adopt to not recognize t state at all the court had to stay in place and there was no they did not allow of improved search to conduct discovery in opposition to the motion with respect to the substance seven he points out among other things that the one of the main problems with the coming the corporation is that his conclusions rest on assumption that certain limitations were required by the district courts claim construction of dialectal standardization and kindly point them out on page twenty nine dollars talk to seamus declaration addresses