morning morning all right we are here before this court today for a second time about an issue that should have been resolved by this court's claim construction order in the first appeal but because the district court did not follow this court's guidance and committed additional errors we are here again today there are three main flaws in the lower court's decision to grant summary judgment of not infringement one pertains to claim construction he failed to heed this court's guidance on claim construction for the term selecting an area having boundaries instead of following that claim construction he criticised this court's opinion as providing only limited guidance and then proceeded to ignore it the second issue pertains to this infringement analysis instead of conducting a proper infringement and alice says the courts compared t the accused system to a hypothetical that was posed by a judge during oral argument on the first appeal where the proper methodology would have been to comparative claim as properly carrying out a call we suspect as displaying dob time limitations by one party and so you lose no your honor we read it respectfully disagree with that position because we believe that we have more than sufficient evidence to show that the move system performs every single step of the kind every step including the step of selecting at area an area having boundary but moon system i understand there are mean to interrupt event that if you're finished our view of this is that there are three different ways in the movie system of how to initiate the selection step which is carried out by the computer and that the user by clicking on a point in the map by activating the zoom bar or by selecting from a menu of town names is really only one of my forget it i think maybe a menu of zip codes as well but regardless the action actions of the user although part of his selecting steps because they certainly initiated or they instruct the computer as to what needs to be selected don't don't allow this selecting step should also in compass the processing that the computer then goes through in order to execute that function to we have no we have no issue with the user also being a participant in that action but primarily as it initiator but that's the whole purpose of an interactive computer program it would be pretty much useless to have one user is performing at least a portion of this according to their argument all but in any event if the user performing any portion of that then you've got somewhere we believe that the user may well be a participant in it but it's not a required participant under the claim and the user may be provide the environment in which the claim steps are performed but they are computer directives claim  off the map and the user zooms in and out right what has happened there who is selective the boundaries the user or the the computer computer's all boundaries are first of all even the area of the grounds being what to reckon for instance yes your honor you're saying all only the user does not perform the selecting except there is some kind of computer participation as well  selection rights so you're saying this district court read the words only and to the selecting because i believe the district court read the selecting clause as having to be performed only by either a user or a computer and not by an interaction of those which in our view is on an unfortunate view of computer interactive computer inventions in general that we i believe we filed the letter to this court after that this to the district court had already issued its summary judgment decision may i proceed yes the to third error that the district court committed pertains to summary judgment procedure in general and here the court instead of showing all justifiable inferences in the nonmoving favor the district court actually took it upon himself to resolve factual issues and made findings fact that should have been left to the jury these terrorists were cumulative and in our view require that summary judgment be vacated  and in addition real requests that summary judgment be entered by this court in favor of rio at least that the selective selection step is performed by the infringement below real has waived the right to are given on appeal they didn't argue this infringement they didn't argue joint infringement but there's an argument any theory of infringement because you did and akamai had preserved that issue they had argued for a change in the law as had mckesson mckesson had argued that the law should not require infringement the infringement law should not require performance by a single contributory and they got knocked down by the laws and that existed actually get a chance to go back and and argue under the law as it existed at the time but it was misunderstood by all course actually they did not argue induced infringement in response to summary judgment motion they played it in their quiet it was there and it was under the misunderstanding of the world about what it meant they didn't have a chance to pursue it well for the super i think you're referring to the supervening decision doctrine which says if there has been a change in the law since the lower court considered it that's an exception to waiver problem here is for that doctrine to apply the law must have been so well subtle that it would have been pointless for the party to argue that that was not the case here at the time the parties brief summary judgment your time we brief summary judgment we brief summary judgment in october of two thousand as in sorry two thousand and twelve mckesson both mckesson and aka my this court decided to hear them on bank in april in may of two thousand and twelve and one of the issues that this court was agreeing to here in the captain were the circumstances if any that a party can be liable for induced infringement when there are separate entities performing those those separate steps knowing that that was one of the issue really made a very strategic decision not to make any argument based on the notion that the user performed the selecting that did you know before  inducement was going to be the key to joint infringement issues obviously couldn't know that but i knew it was on the pill one of deep and i can tell you right now i didn't hold the bar what percentage would have said inducements going to be the way this is resolved i think everybody was looking at direct infringement that said if you look at the order the caisson order the bank or this is one of the issues quote if separate entities each performed separate steps of a method claiming under what circumstances if any would either entity or any third party be liable for in this ng infringement or for contributory infringement we are correct that an exception to the waiver doctrine a change from law to change of law heard why do you think there is an exception to the exception because there is a supervening decision doctrine only applies if it would have been pointless to argue for a change in the law how can almost implicitly under attack in every torrent they're always being reconsider the court doesn't always agree to hear on bank the very issue that  absolutely the whole nocturne a whole idea waiver is fairness why should the district court have they raised this at the district court level we've already been up here twice had they resisted at the district court level we would have been able to put forward the evidence to show no induced infringement but they didn't argue it in fact before we even got to the summary judgment stage move asked the district court to say summary judgment pending a decision  contemplates the notion that a computer can select in the district court recognized that this court set selection takes place when a user or a computer chooses an area having boundaries not when the computer update certain display variables to reflect the selected area that with this court construction when a user want to do a property search on the new website one of the very first thing that user did was select a geographic area and as you noted that could be done in a number of ways clicking on the area on a map on a truck down menu putting in the zip code as an initial area into a search thing and one theme is that the first area was selected programed to retrieve the latitude and longitude coordinate that are so gated with a particular area of the map or a particular name in a drop down menu you can think of it like this this is how i think of it you go to a restaurant again you look at the menu you decide what meal you can have you select the meal you tell the waiter waiter goes brings you back your meal i don't think anybody in that argument and that and that to circumstance would argue that the waiter at selecting the meal you say i want to live near u c l a i want to have a school elementary school within ten miles and you put in those inputs and then the computer went to decided what area with  pull up that would be from here selection in this case if the user says i want to search beverly hills i want to search l a and the computer which treats us it's the second problem with real argument is they say when the computer goes into trees the world court it associated with the selection that that itself is selecting the problem with that this is all summary judgment right it is it is but the problem your honor is there there were not  they didn't come back and say it was only responding to a summary judgment motion that's responding to your motion i was a waiving anything when they responded to your motion because in responding to our motion and non infringement they response should have been what it was no we don't disagree and two it should have been but even if that's right there is a law that the that this federal circuit hearing the law on in this infringement and on join recall was quote the specification file history inclined to find a method whereby the world coordinates equal to the boundaries of the first and second areas are selected by the host computer that was in the first appeal this court cicely rejected that argument here's what the court said in response to that argument to the extent that real argues that selection of an area takes place when the computer said the world coordinates equal to the boundaries of a selection cursor rather than window box or selection cursors why isn't it simply and frankly this is going to be a philosophical issue beyond any of our ability to respond to but why isn't this of factual issue of an infringement dispute about how the new system works it just recorded sept of their argument and for the purposes of the appeal we can accept their argument to the question is what is the need to clean to draw from that when the new computer set the world coordinates equal to that to the boundaries selected by the year when given a claim construction yes isn't it time for the jury to decide whether it is is satisfied by the move system i disagree because there are no disputed issues of fact we know that what the disputed issue of fact we know what that we've accepted there are there recitation the fact as to how the new computer worm you don't agree that in every instance you could characterize the same issue is either an infringement or claim construction yes but in this case it's not again what i'm asking you ok this is a pure reason is we've already passed the claim construction stage isn't it time for the trial not given that every we can read construe claims indefinitely into the future read construing what we said or didn't say we said it once isn't it time to go back and let the jury decide whether moves system that despise the language we've given you respectfully no because on the facts there are no facts on which the jury can find selection given the construction by this court that said selection does not take place in the computer update certain display variables to reflect the second area that is the selected area that is what seem new system did as admitted by reals expert dr shah shah he said yes it's updating display variable now he said it does more to but the more that it identified was simply sending a request to them that vendor not selecting area this court not only said but selection in it said what selection isn't and what the new computer does is not selection under that construction why spend the resources time and effort sending them to a jury when we already know that on the facts they can find iraq on my anyway just through the whole thing and when it goes back well  don't think it should go back from iraq and i think this is about a clear case of waivers there could be and be a clear case of waiver when they responded to your summary judgment your issue without mentioning an issue you didn't mention we did we didn't mention on same construction that computers where the computers to throw supported equal to the boundaries of a selection cursor rubberband window box does not constitute selection the reason why that does not constitute selection is because that is the step assuming and the reason why updating display variables does not qualify as selecting is because that displaying those are different steps of the claim so there is a step selecting step that's different from suing and from displaying and that's how we read this decision and that makes perfect sense and i also would like to point out that there is more than sufficient evidence that we'll have a deuced to show that the move computer performs the selecting step and that this evidence that real the deuced was ignored by the district court and instead the district court accepted the fact that move a deuced and found them to be true and on that bases granted summary judgment and we believe that this was a flawed approach to summary judgment next i would like to point out this the selection of an area having boundaries is a computer executed step because the computer provides the data whether they be in pi form or in the world forwarded form or in some other form that provides the boundaries in the first place and it processes the data for the next step in the claim so that you can go through this selecting the displaying the zooming and the identification of the property i don't like to point out that the participation of the user in clicking on a single point is such a minimal participation in the selecting set because clicking on a single single point is by definition dimensionless and really does not select any boundaries  nowhere in the entire specifications of the computer does break there's no question that the patent specification describes the utility of the invention in terms of the benefits to the user which is also the precise utility and point is much less of a participation of the act of selecting than the what the computer provides in terms of processing the boundaries and processing the data in order to get to the next steps of the claim