is bill lee and together with my partner laura fletcher i represent the u s i would like to focus this morning on the infringement in damages issues but of course would address and maybe other issues and all desires let me turn immediately to no infringement and i'd like begin by focusing on that claim limitation requiring and i quote the nd communication means for us transmission of data from the district court construed this is a means plus function term having the function of that again to quote continuous transmission of data the patent written description expressly contrast this continuous transmission of data with the transmission of data and no and the greek there is a guard time now on appeal l but it has said to you what continuous means long enough no one has ever told the jury below or this court how that column thirteen line twenty two dollars you will actually find the word card time so hard times not something that appears magically in the description of a huge product it's those seventy three pattern written description is talking about two different random access code in a channel climate and as you said for for short messages then you get to use the random access mode but when you need higher transmission rates then you move over to the channel assignment and so and then you toggle back and forth between those two modes and then the question is is is that what's happening in the accused products as well that you have mode one for short messages and then motu for longer messages your honor i think i would you right up until the last sentence where we have taken st burst and continuous messages and rephrase them as a long and short that is what they've asked you to do in brief i think you can read that brief forever and you'll never find a definition of what the differences between short and long which you can say be continuous and a contrast with the st code which is bursty of whatever length separated by guard i agree with you that you know the common meaning of continuous would suggest something that just keeps going and maybe never stops i don't know i don't know what kind of transmission that would really be but but this back seems to explore d this in the more detail and then tries to make  distinction between relatively short messages vs relatively longer transmissions your i pod without a doubt that says and then the latter one falls within the label of continuous whatever that actually are different from choose products the st is the fact that in our stream oak are forty five millisecond bursts are separated by card time and there's absolutely no dispute about expert bought a book in two thousand and eight and the book in two thousand and eight described a prior art system that pirate system had a mode that sent transmissions in forty five millisecond bursts separated by guard time says he was talking in two thousand and about a prior system he was but he was looking at a prior it system that had short transmissions of forty five dollars milliseconds and he said they are not continuous it's all expert addressed the st of the three and talked about how the backlog signal it is used in order to switch from the st mode to the nd he didn't address either of the other two in his opening testimony it's open testimony and then in his  uttal testimony he tried to make them try to make an equivalence right meant it's literally three lines it's three lines of conclusion and we would ask them what to compare that to their primary case odette x where there were  mountains of claim charge mountains of evidence eight different places where the expert testified about how they work structural quislings and there's a reason he didn't address it there's a fundamental difference between the patented system and the  nd part of the algorithm says you have to have pre determined and different criteria in order to switch back the expert never identified what the criteria were for the switchback make use systems out at all and when the court looked when the panel looks at the citations you'll find that they're talking about switching generically but not switching that and he never identified the manner in is i know there was some statement by your d side that suggests well not always but are there times where when the backlog value flips from one to zero actually system the hub makes the decision and what happens when there is no back wall and what the internet the i p o s protocol says is at that point in time the hub looks at all the  across all the terminals and then allocates in the most efficient way so even if a terminal no longer has backed off and this is why i never said i didn't say never here answer your question it may choose to keep the argument that hughes is essentially making here is the presence of a guard interval as a matter of law d means there can be no continuous stream of data and the problem with that is that's what we've claimed destruction argument they pursued that below and didn't even appeal to out of the magi to make it rain just saying please wait because they didn't make it no they made a request to construe the structure to include a functional limitation that would exclude t d m a which is basically the argument that they're making before this court they did not appeal that the left hand side in blue are two random access mode frequencies you can think of those as sort of a party line where all of the terminals are communicating in the heat through that term no using and i was i was intrigued by mr leasing that the claim distinguishes between erst and continues the claim at issue actually says short burst not burst and continues and that is critical here in an  effort they're trying to they're trying to play a good word game but let's put the words aside from want to focus on what's actually happening here the short bursty transmission of the random access mode can be easily seen by the light and dark blue boxes on the left two frequencies the right three frequencies and again there's a test ample testimony about this are where you have the variable length transmissions in the key channel access mode or what we will what they call the dynamic stream mode and if you look at for example f four that's the nd to the far right green bar that is a frequency that's assigned to a terminal in that terminal senses a backlog and makes a request to send data it will plug that frequency a four into that terminal and that terminal will shoot stream burst whatever term you want to use data for the length of that dark green box that you see again this is all in the expert testimony here that stream will go until the data that is sitting in the backlog of the terminal empties out and then it will stop and in in the in this combo combined  d m a approach of the next terminal that has a backlog reported to the hub will then be assigned to that frequency and that's where you have the light green box that follows is obviously all happening very fast and so what our experts said is to pick any one of those green stripes they represent a variable length burst of that don't we're stream of data or transmission of data the length of which can go from  the what you see here all the way to the end of the frame without interruption without there being a guard and in fact if you look at the patents description which they point to in their brief about lines twenty nine through thirty one column fifteen q the pattern says a specific frequency and a particular band with or a song that's what i just explain f for the green bar is assigned to the terminal and the data is transmitted for a specific purpose of time or until the data ends and they rely on this in the grave read that page three is a definition of continuous that is exactly what is happening in the transmission that so again the stream of information to the experts involved absolutely i would also add this forty five nd argument shows up for the st time in their reply brief but it doesn't matter our experts explain it to a person still in the art forty five  seconds that where the length of the stream is quite a long streak and it's certainly going for a period of time and the streams and in fact the figure i pointed you to on page twelve a huge internal document says that the dynamic  that he said in the prior art system t n a which looks more like the short burst mode frankly in the blue square some page of the figure on page twelve nobody's arguing that's a continuous stream of data and in fact another distinction here that is important is when the communication is happening over to blue frequencies there's no channel assigned to a terminal so no terminal has the ability to send out data at any particular length that it wishes to send out so i mean that's the main distinction frankly between the channel access mode and the random that random access you're forced into small bursty chunks of data which you you have no dedicated access to any frequency you send it out and track frankly there could be collisions of data and the like because of that you have a bunch of terminals trying to use to you know to punch a party line can you return to the point that you said it was a wave claim construction and argument transition from the lower to dynamic screen mode and didn't really quite get to the other pieces of the room so the expert on multiple occasions said the entire powerful corresponding structure was in the nd the issue that he was confronting in that testimony was the argument that hughes had made below that it was the hub and not the terminal that was making the switching decisions so that was the focus of the testimony it is true it was in the context of the forward switch but the logic frankly and the inferences to be drawn from that applies equally well to the reverse which this is not if you look at the corresponding structure that the algorithm if you will that in the patent tremendous cost satellite provider there's tremendous inefficiencies of keeping a terminal plugged into one of these dedicated frequencies for any longer than absolutely has to  a terminal is going to switch from random access mode to channel access to it when it senses a backlog that's putting it into a situation where that terminal is now heating up bandwidth in the system and costing the satellite provider money so the system a lot a reasonable inference here is the system when it senses that there is when it's told by the terminal that there is no more data in the backlog will switch it back as quickly as it possibly  reduce the cost and that so all of the testimony that you saw on the front side is applied equally well to the back side and in fact mr lee cites god i know there's a this is substantial evidence for you but isn't there switch and nothing in the world happens immediately so yes there may be some slight delay there may be some logic that the harp has the process when it gets that request from the terminal switch me back but there's nothing requiring an immediate switch so there's nothing inconsistent with that in fact i would argue that sentence of tireless supports what i'm saying what about the next sentence on the next census talking about an optional feature if you read it it says depending on configuration parameters the hub may assign verse now what that's fucking about is a delay time very brief delay time or that the hub will put in to protect itself from a terminal that changes its mind so imagine i have a terminal the records of back suddenly some data comes into the terminal which tells which then will cause the terminal to switch it back to a bit from zero to one again and tell me to then assign a channel back to you i'm better off keeping you in the channel simon  and waiting for you to tell me whether you're going to change your mind then switching you and then having to switch you right back that's not disobeying the terminal in any way just struck by how benign to was and just you and mr reed telling me all of this about  illogical for the hub to keep a terminal in channel access mode any longer than it absolutely has to earlier more the testimony is that the hub doesn't know what's going on and the terminal has to rely on the terminal the tel what other backlogs of users have and perhaps if there's not a lot of the man from the others it will continue to maintain this channel for the particular discussed i think the point here is simple our expert looked at the source code look at their documents and the testimony is the logic the reason we principally are this is exactly how a backlog based assignment system works when you have a backlog the terminal through tories control are absolutely not i don't know how i could argue it better than this court has stated in held in orange dine that margaret was overruled by swinton on the very issue that they see challenge the claim construction we make a very simple argument to claim construction says continuous the claim says continuous the experts agree that the i p s protocol is the governing document and it is correct the equivalent structure and a structure is a column eleven lines twenty one to lines twenty five and it's ferry specific and you will search the record in vain for are not tall enough there is not a thing that would answer that question and the reason there's no answer to that question of how long has helped long enough is said one thousand five hundred and thirty five to thirty six where their expert said this quote but there is a card time between the burst correct answer yes or question and that's what you meant by nine continuous correct that's correct