existing technology or at least doesn't involve newer which is the critical question and the consequences of a divided assignment would not be at issue but what the j d s does in a case now i'm going to assume for a minute the claim to or for does incorporate new work is to separate the assignment of newark and the preservation of existing technology that is what cope decided one hundred  more years ago when this court has repeatedly said a kind of attempted assignment that is not permitted under the patent laws and the patent laws by virtue of pope have said for more than one hundred years what the consequences of that kind of ownership that is the fundamental legal error that the district court committed the district court simply misread israel bioengineering because israel bioengineering is a case in which ownership started divided and never ownership was going to be assigned and the supreme court said when you can't be assigned you can not only assign cling to and when you try to assign only claim to what you are conferring is not an assignment of ownership so it agreement plus pope b that you have from hopper had some existing work of its own and some new work and ron hopper were the first one to the patent office that it would have had the same rights that you consequence of the agreement plus the pope case that whoever is first at the patent office gets the advantage of possession of the new work if i understand the question it would depend on who inventor and then the question would be presumably the front offer employee inventor would have an assignment agreement to front offer and then the j d a would operate perfectly symmetrically to attempt to confer with joint inventor ship and so when you have you start with joint inventor ship you start with joint ownership is really about the situation where one of the owners brought a suit and the problem was the other owner had never clear on every single paper page microsoft cites that there were co inventors different owners because they each assigned rights to different different owners and the problem was that there was a nother owner whose ownership had never been a is precisely the pope's situation where somebody starts the consolidated ownership and tries to assign part of it and the law for anjan some years has been you can't do that in these circumstances and when you try to do that no ownership is assigned that is that's the first argument about about the g d it's entirely dependent on on the pope and the net result of this of course is that father forgets to use new work gets t license it freely to everybody else but he doesn't get control over eighteen m t s existing technology and the g t a took great pains as microsoft itself said in its jam oil motion as the district not only to try to confer joint ownership in new work but to preserve individual ownership in existing technology the result of the district court's opinion is to give front off or control over something that th working this report said you're wrong about that you the jury cannot find that now as to claim four in particular we think that that the jury was perfectly entitled to find that and that the district court committed its its error by excusing it by ignoring the really quite crucial evidence about what james johnson actually built to conduct his listening tests he built a device using alliance and i think d v d computers actually to listen that's what we're talking about now the listening device or at the decoder and there was ample testimony that the very large scale integrated hardware v l s i hardware is such a broad term that a jury is perfectly entitled to decide that what johnson actually used to listen provided the structure in describing his technical memorandum in these listening tests to see if the sound was was any good was in fact pre april again there is both expert testimony about what we're up a person of skill in the art would have understand understood to be within the invention ns and also johnson's own testimony that he read of the frequency transforms which is nine hundred eighty eight application the five ninety eight allocation described quite generally read the first claim in the in the five minute application is perfectly general as to frequenc either one one other point that this is not an issue even which the question would be possession in the written description since this is a contract question about what is new work now to be new work you have to not be a number of things you have to not be front office existing technology you have to not be a team ts existing technology and you also have to not be anything in the public domain before april  still win everything in terms of damage is assuming we agree with the damages and all of the issues with respect to them that that that's right and that is because because every item that infringes the four fifty seven also infringes the  it's not true in reverse but it is true in that direction and so what happened here i mean the let is sort of the black box issue and make no actually i don't think it's a black black box issue microsoft agrees that the only evidence on  how to do these damages was the jury actually said we're going to use a point five percent rate the numbers the number of computers and their average value is undisputed microsoft explicitly agreed  seven sixty nine on each pad so it would require a reformation of the actual verdict to get to the result which leaves an average eight second leaving just because we're in this area it is also important to note for the court that there's only one decoder claim in this two thousand and four something that may or may not become relevant depending how the court decides the issues i just wanted to think about so i would like to begin with the patent as well and in particular address the preexisting eighteen to work point there were a few things that i disagreed with and counsel the issue under the j j is whether the work had been done by a t and t prior to april one thousand eight hundred it's at the m b t see climb for instance and you look at the testimony which was relied upon by the district court which is a fourteen seventy five seventy six you will see with absolute clarity that mr johnston had not done how do we know good question the contractor answers that for you because if you look at the definition of preexisting work in the contract give us a cite for that twenty four to ten yes your thank you very much claim to prior to april of one nine hundred eighty nine in the testimony makes it absolutely clear as john ritter clearly recognized eighteen thousand itself did not do it it's not a question of what a person of ordinary skill could have done knowing what  discussed as if it's one thousand nine hundred five or one nine hundred eighty six which is prior to any any alleged conception of the stuff in claim for and you'll see that there is no nexus between them just general discussion of the alliance computer and the  computer actually doing the method steps in playing one or playing two or actually performing the steps that are necessary the functional steps in claim for so while you can talk generally speaking about an  computer and you can have some guesswork as to whether an online computer has a v l s i in it which frankly is not supported by this record and you can have guesswork about whether it might have had a d s p in it which is not supported by this record which you cannot possibly conclude from this evidence of record is that it was running the algorithms of playing one or the algorithms that are necessary to be done through the functions of playing for and so that's what red judge brewster got absolutely clearly correct there's not a bit of testimony from mister johnson it was a trial that he did that there's not a bit of testimony from dr giant their own expert that he used the alliant complete computer to do that nothing not once and tell and so when judge brewster did his thorough and well reasoned opinion in this case he studied the evidence and he concluded that those generalities were not enough and frankly they weren't even reliable at the jail stage but there relied on here through sort of documentary something like that but instead it did it talked about patents there were new work in it and not only says it in that was the couple of paragraphs later i think it's the one that talks about the applications and who can prosecute them it is very clear contrary to the evidence of record because we've also cited in our exhaustion papers they have the testimony of the head of licensing from front office i would encourage you to look at that as well but think about it what if it was one client in the patent that was front office and one that was allusions and then one that had been jointly developed together what would happen then you would own the only thing that makes any sense is the result that judge brewster which is when they're doing new stuff  that's what you're advocating here pope explicitly says we can do exactly what judge brewster it here and i can't give you the page number quote but i can tell you it's on the  so i think given my time constraints i wanted to mention that we believe on the four five seven that this case is is directly controlled by this court's precedents and  windows media player does not necessarily use d h q and they admit that they have proven no specific instances and that's what this court's precedents require impacts consistently and the cork in each of those cases found as a matter of law no infringement in the court was presented with arguments in each of those cases that circumstantial evidence was good enough and each of those cases articulated the exact same rule the court said that theories and hypothetical scenarios are insufficient you have to show at least one well that's really not that really isn't your position isn't it took that what they showed was they couldn't show that they would actually want to use that is to say to display that on june fifteenth  that he exaggerated the frequency so he just decided i'm not going to do it he never said it was impossible to for him to demonstrate it he said it was very difficult that's in their blue brief note seven and he said it was not particularly practical so he never said it was impossible that's a word that shows up in there in fact it isn't possible because h q never runs because we actually ourselves at microsoft tried to make it run as  everybody testimony shows for mr johns before it was ever accused by them and if the court wants me to respond to point out in their footnote where they said they we didn't take it out for was accused i can give you the actual sites where you can decipher the truth on that but we tried to make it run using this industry standard tool visual studio barber and we couldn't make it right and that's what software engineers to do dr polish never even dr but the argument is it happens it could happen we just don't know whether the could happen is time to the minus nineteen or one of three they didn't even give a theory seven microsoft's position trial was not that the percentage of probability of each q running was too small it was never great we had ample circumstantial evidence that it did the fact that it was designed to work the fact that it would be called you know variety of circumstances where errors made the default in code or the fast in which the fa not there was a vigorous debate between the experts about whether circumstances that would cause failure of a fast in code or would also cause failure of the h q in code or i think the only thing i need to say about that was that this is a classic dispute among the experts and our expert dr polish answered everything that dr strong had said when microsoft did it take the h q in code or out first of all  shows it could have done it but it kept it in for three four years before eventually taking it out and second when it did take it out it had to make a variety of adjustments to make sure that it wasn't being caused the and microsoft's programmers in a white paper website indicated the kinds of errors that caused the fast and coder to fail are the kinds of errors that do in fact occur occur in practice and a programmer should take account of all that which is enough for the jury to conclude that the h q encoder does run which is the only was the only question not how much just let me go back to the zero eight zero i may briefly with the j t a says is to be homed under the ownership of vision it has to be new work let me repeat what i think i said in my opening argument that doesn't simply only to make the point about what section one of the g eight da says you have to get into the category of new work i don't mean for one second to take away from the evidence that the jury could conclude that claim to and claim for in fact come within any kind of possession or results concept of existing technology but to be new work is a narrower category than not to be  statement made in an in an opinion like the statement in akko to read it outside the context of the opinion to stand for a general rule that it couldn't support especially when it would in fact clicked with molecular djimon out of the cases that the recent