two thousand and ten fourteen twenty four yang grew against destiny media technologies now may it please the court in this case audio and other content are uploaded from the united states to destiny server the files  changed in the server in canada and sent back into the united states in a different form which is secured time lot and possess a bill by the recipient at this point in the proceedings it must be assumed that the process of the being performed by destiny and the reason i say that is because the point we are in the proceedings is critical to understanding why there are two issues in front of the court and not just one the district court in green bay wisconsin has a very interesting procedure which actually is a very good procedure for some patent cases where if there is a narrow discrete issue which does not involve very much discovery the parties are entitled to argue that issue that issue alone and perhaps get it right to the heart of the matter here that issue was supposed to be canned to seventy one ever apply to digital products we certainly agree that that is a narrow issue an important issue and one where there is some support actually a significant amount of support in this circuits rulings that it might very well not be under the literal language of existing we believe that issue because there were district court opinions on the other side was right for a legal determination with very little discovery there was one fact up position t expert at the reply brief stage in summary judgment and we were the respondent so we didn't get to reply to reply brief and in the court's decision a claim construction crept in that  destiny argued for the first time in that court held for the first time that two seventy one g shouldn't even apply to this patent because it doesn't claim a process for manufacturing anything digital or not but instead as a method for distribution we would like to argue to this court because it is dispositive it is important that to seventy one can apply to digital products in two thousand and eleven notwithstanding the holdings in  in two thousand and eleven digital products are goods their goods with value their goods that are bought and sold their goods that are possessed by the recipient even though they might not be i say they might not be tangible because at some point in their possession the microsoft case of the supreme court eight hundred did it did suggest that a the data on hard drive may be tangible however for purposes of this case the importation of the dead don't we admit is not tangible it is a bit going from the server to the recipient however it does go to the recipient and the individual recipient in a form that can be possessed the the audio content movie content book content is now bo my cd store has closed i buy my music on i tunes borders as in the process of closing i will get my books on kindle and i believe when congress was discussing the issue of goods importation of goods and good produced by a basket or process that would cover these kind of digital goods had congress considered it in one nine hundred eighty six because it did concern the issue of goods i say this not withstanding the holdings in bear and n t p the reason i say that is bears holding concerned information research information and not something that even today would ever be considered a argument and even if i thought there was completely wrongly decided that's something you have to argue to the in bank or i hope you realize a panel of this court can overturn that i understand that if that were the  absolutely necessary rationale right there that language certainly is in there and bear does require a physical product and a tangible and decides the case before it based on that not based on it's not as if they are said well here's the narrow grounds for decision and by the way we don't really have to rest there because since word since we've got your attention we'll just say that these things don't apply that the statute doesn't apply to nonphysical products even in bear however the issue was that the concern of the court was the protection of abstract you know from and we believe that the logic of the two district court opinions that cited which did discuss fair do take into account the the more modern issue of the digital products and it doesn't do offense to the ball but it does not pass through the border in a physical way it does pass as information as as debt so we do ask this court to clarify there and i do i don't believe it is over ruling bear because  the same research data from bear or the transmission of information in n t p would not be covered because what we say is that digital goods are bought and sold by  consumers today and no one can argue that the music files movie files etc our goods that are bob sold are within the intent of congress but why don't you move on to your second point which because this is record that makes clear that that's an issue that should have been decided the court made clear that discovery was going to be limited to three issues the location of the servers the nature of the result of the processes on destiny servers and the software marketed by destiny in the us notably missing was any discussion of claim construction because under the theory that bear prohibits an physical product from being covered by two seventy one g it doesn't matter what proves that it wasn't the issue in the case at least as the parties had agreed to it is destiny's own summary judgment motion which is right in its argument on two seventy one g makes the n t p and bear argument and did not assert that this the claims of this patent should even have the benefit of two seventy one g b so the response by yang to rw was simply arguing the issue of can a digital product be covered by two seventy one g b we never had the opportunity because of the fast track narrow discrete summary judgment procedure to interpret the patent put on evidence of what the concept of providing access means to show the court that the patent itself does say that the providing access is the transformation of the uploaded files into one of several types of files one being an encrypted file and a deep christian key which together can provide access at the proper release time or state or the sending of an encrypted information at the proper time both of those are transformed products that we say is the digital product but here's the here's the i guess the question i have from a plane construction standpoint is the claim says receiving and storing at the server a content file so you receive it and you store it so you didn't create it and the server gets it it's already created you receive it you store and then lay it down and set and stepney providing access to the law content file well you know interpretation and may i answer that two ways the procedural way is the party simply didn't have an opportunity to argue that my substantive answer would be and it would be more developed below with evidence because now i'm speaking outside what i viewed as the scope of the fastrack summary judgment procedure the content file referred to but saw the advertisement where has the set the uploading and the receiving of it did have a transmission transform ation of the digital data and that is making corruption i'm talking about either the encrypted and or the streaming and both of those are disks discussed in the as the preferred embodiment of this claim so the claim construction that vote content mirrored it refers to exactly the same type of data going in and going out as opposed to the underlying content more or music would be it would be a claim construction inconsistent with the specification of this patent and therefore the the preferred inviting it would be outside of the the same construction obviously this would be much more developed if it were part of the record but isn't this is a relatively easy case the district court got this case right because fundamentally it's not a question about whether a digital product can be a pro the fast track summary judgment was not something that had been forced on the parties it was actually voluntarily brought to the court that we would want to use fast track summary judgment dispose the extraterritoriality issue furthermore while it's true that the opening brief that the actually filed for the summary judgment motion concentrated on the tangible issue raised here with regard to seventy one g in a better case and also something in the interview was touched on an now the issue here is that in the opposition brief that was filed by the appellant they actually raised for the first time the notion that the manufacturing step was going to be summary judgment motion you move for summary judgment of non infringement correct and you would agree of course the district court's not free to grant summary judgment of non infringement on some issues that you didn't raise and that they never had an opportunity to address like suppose the district court said well you know what i don't know if there's any log in information here like goodness you didn't argue anything about logging information the words don't probably appear anywhere your brief they didn't argue anything about it it wouldn't be fair for a court to on one basis and one date was only a pretty good digital media and their case resolved this issue but yet then the district court decided the case on a totally different issue well that's what i'm trying to understand is did you provide notice and did they have an opportunity to respond to the issue the court actually decided we did not provide them we didn't tell them that we were going to do a claim construction other than what was in  our in the opening brief we did raise some plane construction there for what we thought was personally it but it was the opposition brief that race for the first time the notion that this in christian that there would pop about in the patent was going to be what they consider the manufactur had the reason why they didn't bring it out as a claim construction and specifically as they had a problem with or even got the summary judgment motion we had looked at the last line of the patent claims providing access at the recipient specifically in opposition to the twelve the six motion they said prove infringement this case does not require plaintiffs that for evidence we're going to find its customers or defend its control over their customers at the time of customers referring to that recipients computers and that's at a zero zero seven three and so having said that to the district court they were now stopped because well now in front of this court they're saying that the they say in the briefing page twenty one that the  oral argument argument to us today is that he was deprived of notice and an opportunity to be heard when the issue of whether or not the content is created by the process that was something that didn't occur in anyone's briefing until your reply brief and the district court decided on that basis and so i'm trying to appreciate do you agree with that representation a factually no a so where was this issue brought up earlier show me in a brief or in a document in the appendix where it's clear that this was the ground upon which you were moving for summary judgment on  were i don't have a specific citation of where we sprawled out the specific question of do they manufacture anything i would have to i'm i'd be happy to provide you that information but as i recall it was the  as a result of the opposition brief where they did raise the notion that the providing access step was the manufacturing step that they did via they got them around the problem of what you raised the content file and scene basis is actually the content file provided by the record label and preexists i mean i'd like to point out in response to your question that what they say about that kathleen element in their brief on page nineteen is they say that while the album single track video or album artwork might be exist in some form the recited content file did not that unique invaluable content file is the product both created and important in the united states now if that is different because of this because there was some different form that means that they're referring to a different content file that step be receiving in a story at the server a content files are therefore by definition there and be any infringement  so well did they ask for any sort of reconsideration that the district court to be runs an issue that this is unfair we haven't been given an opportunity to provide notice or we haven't been given notice we haven't been given an ruling they filed a notice of appeal is there a mechanism by which they could have asked for reconsideration i don't know offhand i believe they could have asked for reconsideration and i think the court probably would have taken staking that seriously because during the phone call  expert admitted this was the case you can attach lead to an email so the email transmission data stream now contains what was the content data so the notion of distinguishing email me n t p case from valuable argument might be an argument for why this particular if this particular product might not fall under two seventy one g but you seem to be running away from the notion that the word may mean bear hinged its entire analysis on the word made it equaled manufactured and since made equal manufactured therefore it only applied to physical products do you think that's a defensive statutory interpretation marking rightly points to two other uses of the word made and make in the marking statute well of course you can't mark something that isn't physical right you can't mark an intangible so it doesn't surprise me that that might words built a physical taking but  seventy one ed it says it's an act of infringement to make use offer to sell or sell yet this to seventy one day clearly applies to intangible products too you can make software you can make digital i'm happy to answer that and to read th made means into seventy one g b doesn't it make sense to look at the same word in two seventy one day and understand that it's been broadly interpreted to include digital products and is not limited to physical i know that to ju supreme court in the eighteenth tee case sort of poked at that issue and said that well the the manifestation of the intangible on the hard drive of the destination computer is the is the making of this data so there is the notion of the tangibility arises at least can can arise in the manifestation on the disk drive is one thing that the supreme court looked at but in this case the importation  that you were faced with and that this court was faced with an n t p versus rem when n t p brought the argument that a patent claim over a method of transmitting distributing inputted message was manufacturing the email and as court rejected that argument thank your honor we stipulated to the fast track summary judgment because we knew very well that the district court and ultimately this court could decide on the discrete issue that the bear language is to be taken literally and a digital product could not be covered under two seventy in order for you to win don't we have to say that there doesn't apply to the scans you would have to say that bears language that to seventy one g only applies to tangible product is is an incorrect wording and while it can be made or manufactured a digital product can be made or factory we do want this court would have to make our list of the ground that th was employed by the truck court that that is something we have to overcome the you know you would have to know yes and there are two ways you could overcome without going on both the first way you could overcome it  is by saying that that language regarding tangible and manufactured wasn't necessary for the holding and in fact something can be made or manufactured in two thousand and eleven without being tangible physical hold it in your hand the other way you could tweak or or change the language to bear is to rely on what justice ginsburg more than poked at but did actually rule in in the microsoft case and that under two seventy one and she said windows in the abstract windows the master is an abstract information however a copy of windows whether that is put on a disk or sent to a hard drive can actually be a component and component while it's not physical it has the same property type good type attributes of of a good certainly what of what congress would have considered it good in one thousand nine hundred six as you can see by the arguments destiny is giving today there are many other issues in this case issues that were would be certainly argued in this manner but none of which are necessary for the discrete fast track summary judgment as you it is a rare procedure the judge was a little surprised that someone litigating a patent case we would go to one argument as opposed to offer all his arguments at the same time we think that showed respect for the discrete issue respect for the cool this court's decisions in in the early case in the earlier two cases and the fact that that law was a purely legal issue that could be looked at into district court in fact under review by this court have come out with a contrary ruling  we don't think it's fair that having agreed to the fast track summary judgment procedure and if you look at page a seventy one through a seventy three the initial of the appendix which is the initial summary judgment briefing all that argued is n t p and dare say information can never because it did not argue the claim construction and we in fact say it's not so plain that the claim is not a method of manufacture yes the preamble says a method of distribution but that now is one not necessarily limitation and two are full reading of the claim if that were developed shouldn't so limited we never had that