technology versus international trade commission proceed good morning and may it please the court there are a number of patents in this case a number of issues in a limited amount of time so what i propose to do is to start with these two issues first the divided infringement extraterritor issues regarding the six five one zero zero zero patents and second the construction of the term long term satellite tracking data if there is time all address some of the other issues and respond to any of the court's other questions with regard to the six five one zero zero zero patents the international trade commission's error can be seen at page a sixteen of the opinion it sa serve allows these customer distribution servers and those servers by the way are operated by service customers and at the important word there is a last doesn't direct or control but allows those servers to download extended ephemeris data from the server instant fix server on a daily basis and these distribution servers again customer operated then forward the downloaded extended ephemeris data to the g p s receivers at the end user upon request what that last her part shows is that the customers are the ones who are making the election to request the data this is not a situation where surf is the mastermind infringement i'm sorry you used the word  and just clevenger to the point if you would like record citations for that latter point the fact that the customers have to actually look up take out their instrument for their cars from their car if it's a car unit hook it up to the internet and sync it you'll find that among other places that page eighty seven seventy that's the testimony of global updates at spurning all start that turn it on but they don't just have to turn it off they have to turn it on pick it up to the internet and request this data specifically and then again it also has to be enabled by that the serve customer which is the maker that has the server that is serving the end unit the point of all this being precisely what the point of all of this is that under the but i think this court and uni option of chief judge michele said that the directional control standard is effectively where the law would impose respondeat superior type obligation and that's clearly not the relationship between surfin it's in the end served under any principle of agency under any principle of tort law is responsible for the voluntary elective actions of not only the customers and the only elective act one in the whole show so second because the customer asked to make the determination that it's going to provide the data to the end user in the first place and then assuming that's made in this case then the end user has to again you know i don't take my g p s unit out of my car and hook it up to my computer but if i did then i might decide or decide not to download this data that's an elective action on their part difference here is in the audience that this whole system simply cannot operate period without the software in the technology to the service embedded in its communication to its customers and then the customer communication to  but i think this this court's decision in cases like acco brands say that manufacturing a device that has the mere capability of doing something isn't enough and if that's the case then it certainly has hit must be the case in the divided infringement context that where surface manufacturing chips that's all we mix chips in chipsets we don't make receivers we don't make the units that go into the cars in that circumstance it's got to be something like the acco always and inevitably standard and that's well if if i'm to respond to that question i think i need to disabuse you of the notion that all that has to happen here is that the user turns on the unit that's not the case again if you look at the record and if you look specifically a the eighty seven seventy was mr pandy seventy nine eighty four global locates pratt testifying that the customers don't just have to turn it on but they have to look it up and they have to get an internet connection that's something that important because not all of these units have wireless internet connections of them you may very well have to put it into a wire into your computer to go get this and then who get to the consumer the instructions on so what we have here i think is on some level you have no control over what your manufacturer makes as you know and there's nothing in the record that would suggest that just left or something where are we supposed to draw the line have not only one but two intervening actors you have the surface customer which is the maker of the unit the people who are maintaining the server or the rim in the case of the extraterritorial argument and then you have the end user and case the district court case that was later affirmed by this court where the where the district court said yes you may give them the keys to the vehicle but you don't require them to start up and drive it in there isn't it there is an attenuated causation here under the law and you wouldn't draw here has to deal with another series of cases that come along but i think that in that the test you have to look to is at and you already do have at least two points in your in your jurisprudence and that being b m c immunity option and you excuse me do have a direct control standard which is derived from a long and rich history of tort law in particular in the respondeat superior area and in this situation i think you have to ask yourself if the elements of a tort were the same three limitations or four limitations depending on which claim we're talking about would all four of those elements have been attributable to in this case serve by simply manufacturing the chip the answer i think is quite clearly no in a case like this if i can turn very quickly to the related extraterritoriality argument the argument here is quite simple the servers that what  the cite as i stand here judge dyke i can tell you for certain but it was raised in the petition for review and in turn the petition for review ref and the place in the record and in the briefing where this issue was raised the late  might that is my recollection i don't have the cite for you as i stand here if i can find it i'll come back on rebuttal and answer that but i do know it was made in the petition for review and i do know that was not addressed by the commission despite our efforts to have the commission address it and i know isn't that next case i'm sorry well your argument is that there were no servers in the united states and therefore everything obama offshore but at the time of the hearing that we're getting there is evidence substantial evidence in the record that there were servers in california why isn't on this point you know next case right be it then the answer to that is yes there was one server in california at the ale j so found we don't dispute that but that mere finding which is all that the i t c and broad om rely upon doesn't go so far as to say is what happens from the data from that server once it leaves that server it that server is exclusive to rip the same canadian company in the it's either of the three forty six patent itself or it's the fact that magellan was in the g p s business because it's the linkage between those two it's not the article in the air you breathe that great point but that article good afternoon you're on it may please the court there are two key points on this divide infringement issue the first key point is that surf bills instant fix system as an end to end system one end referring to the server and the other and referring to the chip and the software operating in the g p s receiver service own internal documentation shows that it controls every aspect of the instant fix system so that its customers an users will have to rely on it was they do have to turn it on they do have to turn it on your oddities the distinction there and is whether that big so the piece of provided in front of your on it does not make it there's actually no claim step directed is different for the very reason that judge dyke asked a moment ago that whether this is a different case altogether and whether this is not the traditional divide infringement case and we think that it's not we think that there's a clear distinction here that's in the claim machine on your adversary is saying that the customer of the middleman as we've described it has to do something if the middleman doesn't do something and again so the middleman what tell me exactly what the middleman has to do in order for the g p s receiver to work there's no evidence in the record on that point on it but i would imagine that if the customer's unhappy with its service it could certainly terminate unless it's down by contract but i think the distinction here in that and even more significant impact th looking for and where we draw the line how much more going to have to happen in this process and at the end you need in order for you to agree that there'd be divided and if there was a step in the claim that said forwarding extended ephemeris files to end user in addition to the already to the receiving in the communication step in that case we might have a different case that maybe divide infringement if there was a step that said and mabel processing thing turned on these are the steps that will follow that's correct i think it's also useful to understand that maintains control that's the whole point of this instant fix system is so it sets it up it designs a system it tests the system it infringes this patent and then it provides these these chips in software and continues to send these chips and software data to complete the act of infringement so it's not that you know in the in the context of the claim language this is what this is all actions that are being performed by surf that pushing a button or active being there seaver is no more part of a claim and say purchasing the device or taking the device out of the package those aren't in the claims well abraham for a trade secret misappropriation presumably magellan's looking for evidence of stolen trade secrets i e the three four six invention they're presented with documentation that's dated dated when when abraham was an employee of magellan showing conception of the invention and what do they do they settle it in a manner in which they say global locate can continue to use or to try to answer my question why is that inconsistent with ownership that's what people is that again that touches if you look at the document you're on and if you look at our brief we actually have an argument based on the language of the of the settlement itself the point there being that if you own something you don't and you just find record and that they we can say that it granted a license we can say that they allowed global ok to pursue this technology you know that they could have asserted a claim of ownership they knew this patent was involved in best again at the settlement and and the fact that it took this it laid out the three four six technology among other things and so if you read that in connection with all of magellan's other conduct or lack thereof it's pretty clear that they didn't consider this invention related to their business and were all tamil trying to look at what will lead to means here and that's all we have thank  raised below and the commission addressed it at eight to six six zero two here is what happened there was a thirty six deposition witness peter cook and all who testified as to location the servers he put them all in the united states we offer that evidence at trial and all never changed his testimony and that was conceded a trial surf called in other witness  who is going to contradict richard testimony and suggests a perhaps there was a server outside the united states as well on cross examination in the record ed a thirteen zero twenty eight mr mr panda conceded that he had no personal knowledge of this at all his knowledge of what they told him on that record he hailed and then the commission affirmed it it basically made credibility determination that the person who interpretations but it's more than just a license and the reason you know it's more than just a license is it's followed by the letter to the customer and the letter to the customer which is designated confidential because magellan treated in that manner said he did not take anything from our g p s project so you have the combination of full disclosure the combination of a settlement settlement that explicitly allows us to proceed in the area that we want to proceed and then a letter to a customer that said he didn't take anything from us from our project the issue of at least subject to different interpretations and the different interpretations to different interpretations of contract required the court to get into one who has the burden we do we have the burden of persuasion ultimately there is a burden of production that is nothing more than the normal burden of production and the liberty lobby type burden of production and the l g a considered both but ultimately we had the burden of persuasion and the a l j and the commission found that there were steps to sound that we had carried it and i think the record he and i think it it's more than that it relies upon the contract relies upon mr abraham's testimony who testified twice in this proceeding wants under as part of our firm have case and then called on rebuttal specifically to address this issue and that was the representation to the l j and we have cited the entirety of that testimony where there was nothing to indicate that the work he was doing was related to their how it actually ordered what he was doing the answer is yes because what he was cooking up to your honor's term as he was looking for something that could be used in consumer applications g p s existed before this series of patents was g and it's working it at home on the weekends on its own time that is a suggestion that he didn't think it was related and then if you take the conduct of all the parties up and yelling at him the entirety of the evidence that was let me start with a divided infringement issue you need option judge clevenger holds explicitly and i quote that thompson controls access to its system and instructs bidders on its use is not sufficient to incur on they're saying it's a description of a method for use with turned on what's the answer to that but i think that's that's probably true but i'm not sure that it gets them to where they need to be here because the point is and you can look it our reply brief a page is thirty one to thirty two in the citations they're located there and you'll see that these units do operate even if the extended ephemeris is not downloaded into them so this is just an this is just data that allows for the prediction of future satellite locations if you don't have it then the device will still operate it may not be is that it will still operate which you have been going on want one in the middle man turned well the step is the process analyze ephemeris received on a first location in that circumstance both both the middleman and the end user turned on ok use is receiving turned on that happened right well i want to make sure that we're communicating on the on the question what you mean by turned on because you earlier describe it as just being flipping the switch just act it and remember him but remember here that it's not just being being electrically operated it's that the customer has to make the decision to send this extended ephemeris this calculated data to the end user in the end user has to take the this is the method that people use when you have turned on machines connected in such and such a way and sending data and such and such a way there's they're saying that's the s if it's not what i'm saying i'm sorry doesn't work well remember that those those are the i'm sorry those are the customer servers they're at the communicating and transmitting steps so that's not serve again ok that's the important receiving step of six five one is also being done it serves customer service we are not the actor and we're not the actor on the processing step and other points of rebuttal but i think i