opportunity to address some of the usage rights issues but i will move on to the practicing prior art error and the evidentiary submissions in this trial because that started with google's opening where they identified what they called this prior art griswold license server approach and they told the jury that the case was going to come down to whether or not their system was more like the google cry i'm sorry griswold prior art or license server system or more like the static invention i mean because it's very clear that there is no practicing of the combined teachings of the pirate that's baxter health care that they're prohibited from that yeah yes so where did google argue that content guard must make in a day that additional showing of practicing  believe that they did your honor i don't take that and i think that and is being destructive i don't take that and it's being conducted in other words i take that and that you just read in that sentence as meaning you can't say that you don't infringe because you practice a prior art and you can't say you don't infringe because you practice some combination of prior art so i take that as being you can't say that you don't infringe because what you feel because dr wholeheartedly and one hundred percent anticipate in other words the prior art or because you're an obvious variant over the prior art you don't infringe ok and back up and you object  what i said to judge gris gris walt was that this sounds like what they're trying to do is urge a clear prosecution disclaimer type of argument in other words they're saying look we're we find that  that would be  court and that's where after the opening and before any of the evidence was submitted during the trial i raised with judge still strapped the problem that i saw in the opening where they were making an association and telling the jury they could compare their accused device to this prior art grizz wall and see that it was more like the griz wall quote license server than the staffing quote trusted system and i said what they were doing there was they were saying look what dr stephens said in the background of the invention section of his patents about this griz walled device he said that's not what he invented we're going to show you that that's what we're doing and i told the district court that that was improper and then i thought well i'm not seeing here where you said it was improper because it was practicing the prior art why i said it was prosecution disclaimer your honor but i mean the difference well the fact is they were trying to urge that what they were doing was something that the inventor had said was in the prior ari's an objection in the course of the from where you characterize what they were doing as a practic believe i did your honor i believe i called it a disclaimer because i think that in this instance it was one of the same things they were comparing their device to something that they said the inventor distinguished and criticized that's on the opening page of their brief they face not in front of a jury ok and so it wasn't brought up with the mark and face there was never an argument raised in the argument from harm what i said your honor was that what they were doing was improper they were presenting an argument to the jury that said look what we're doing is what the inventors said his invention was different than no one could call and were saying and then they said and we're doing with a what the inventor said he didn't like and didn't in now we could sit here and say that whether or not i should have called that a practicing the prior art or the prosecution disclaimer but the substance of what was going on there was that they were trying to urge that the jury compare their device w grizz wall prior art because they said the grizz well prior art was something the inventor distinguished in the background of the invention section now if that were able imitation on the scope of the claims that was something that should have been raised at the marksman ses they should have gone into the district court and said the scope of these claims it's even if they're literal language might otherwise grab this alleged license your argument here has has some said what that was was in attempt to carve out from the scope the literal language of the claims something that was allegedly distinguished and that was what i meant by prosecution disclaimer i that was and i think i explained that the judge judge kills traffic as quite clearly i mean there's three pages of me explaining what it was they were trying to do and that is that they were trying to sit there and compare their device to something that the inventor had described in his background section and then they came in and even with their experts testimony their extra foot slides up on the overhead that showed this is  and they were permitted to do that and that's what i objected to with judge bill stroud and i do believe that i made that clear that what they were trying to do was an improper non infringement argument by trying to convince a jury that they could shortcut the proper analysis and cutting through and comparing to the claims by arguing that all the jury needed to do was decide whether or not the accused device was closer to this alleged grizz walled license server a tory limitation and that uses right absolutely wrong do you dispute that google presented evidence at trial that the accused products practice neither some of them they certainly out that we presented evidence through the testimony of our expert where it was very clear that what was being practiced in the google system met each of the integrity do you  never to compare the accused products to the prior i don't dispute that your honor i worked on those your instructions i know it was in there but honestly your honor i don't think that cures the harm here because one because the jury was told wants at the very end of the but no did i stand up throughout the course of that trial every time they tried to compare their product to be alleged prior art product i did not because that was the objection i raise that they did in their opening and i said they shouldn't be permitted to do that what they were trying to argue was that there was some measure of limitation or render on the scope of the claims and that that was an improper argument to be presenting to the jury in the way they did that is by comparing it to the prior art and by saying they're more like the prior art i'm not sure that objecting wants to getting rulings to ten seven of seven that reserve the objection for the rest of the ruled i tend to get a pretty negative response so i don't know what else you know the direction i'm sorry or you can ask for a continuing objection to i could your honor i didn't but at that point it was clear to me what the ruling on the objection was and we were under a time slot and judge bill struck tried funny case he's an excellent trial judge he moved his cases a lot i tried numerous cases in front of them i knew what he decided and everybody else knew what he decided and trying to get him to repeat it didn't seem like it was necessary i don't have a problem with there being one objection during the trial in understand that in many judges when you intertainment somebody standing up and mak multiple objections but what i do see that's lacking here is a well stated objection and you're making good arguments today but those arguments of i mean i have to read and reread and for what you're saying in the in the in the motive and the improper way in which they're not an infringement argument was being presented yesterday i call the prosecution disclaimer i did because they were comparing it to something that they said the inventor had distinguished and then they were going to say and i did say this in the objection they were going to say and we do what the inventor distinguished therefore we fall within the scope of whatever was carved out of the literal language of those claims and i  i'm sorry you said you compared approach is correct in fact i didn't compare the approaches the patents compare the approaches in fact on appendix page three seventy one from one of the content gart patent it begins by saying two basic b r m schemes have been employed secure containers and trusted systems the patent itself which the but which the jury was at being asked to consider and set up a difference between two approaches we then had to explain to the jury what is the difference between the two approaches and why did the approach that google took from the pelleas to not use the specific claim elements that were then called out in the in the claims and those elements were used to drive that are attached or treat attached to content physical integrity and behavioral integrity and the fact that these were a focus of the trial by the way is demonstrated by the amount of effort that is now being gone in an appeal to talking about all the proof that went in on these three particular claim guess to highlight the elements that were missing from ours that were not required to be in our system based on the secure container approach because in that it's to use an analogy from sports your honour's if you had an innovation that was related to playing zone defense and basketball and you were trying to distinguish and highlight the benefits of that over man to man defense you would need to explain and understand what does it mean to play man to man defense what does it defense and when you understand that you can understand why certain things that apply in a zone defense context don't apply in a man to man context here the patents are clear on their face that there are two different approaches that were known in the art google took an approach that did not require it to use use of dry it's physical integrity or behavioral integrity and i might add your honor that in the pages that supposedly contain the objection that was made at trial it is that you said your opening statement which they objected i don't know that there were specific objections that they included in the opening statement that i would talk about now i'm not sure what statements they're referring to now to be honest to prove that something i so maybe was in the opening statement and if i may on that on page ten seven zero five of the appendix or on or where i'm actually responding to that is what you said that he objected you and not that i'm aware of your honor i am not certain based either on his objection to this particular that he's now pointing to in this particular group of pages or in the brief what particular statements or comparisons he's objecting to obviously the district court judge who sat through the entire trial heard all the evidence was finally presented with this argument in the motion for a new trial the judge in his opinion denying the motion for a new trial said based on his sitting through all the evidence that there that there was no practicing the prior art defense and that we had in fact focused appropriately on missing elements for the infringement case and i might point out in th colloquy about the objection that they made an appendix page ten seven zero five at the bottom you'll see in my response i focus on the fact that it's the absence of the specific claim limitation usage rights that are attached treated as attached that is what is important and the discussion of the prior art is only meant to provide context for why people of skill in the art would in fact not understand google system as employing usage rights that are attached or treated as attached to content and that is stated multiple times on page ten seven zero five part of the colloquy that is being cited by content guard when i say for example what we are saying is when a person of ordinary skill in the art is applying light of the understanding of the art that exists of those people there is a difference in the art between how people understand licenses that are distributed from licensed servers and how they're distributed from a single server and we're only arguing that a person of skill in the art under standing the court's claim construction of attach or treated as attached would not believe that that applies to a license that is sent from a license server separate from the content what we told the district court judge and what we pursued was that this the background  been on our we were not your honor we were not arguing claim construction we were obligated to present to the jury evidence as to whether or not we met the court's claim construction and the court agreed that the question of whether or not our licenses were attached or treated as attached was a question based that the jury was going to have to resolve based on that construction the question of how people of ordinary skill in the art understood the license server approach versus the trusted system approach which their patents call out as being the two distinct approaches was the issue for the jury that was not objected to after this colloquy which doesn't even mention practicing the prior art  honor we were presenting evidence to the jury an argument to the jury about why our system did not in fact use usage rights that are attached or treated as attached based on the court's construction honor i might add one other point which is there was a jury instruction in the case the jury instruction was very clear i'm directing the pro create comparison that was supposed to be made from elements of the claims to the accused instrumentality not from the accused instrumentality to any prior art there's no suggestion there was no objection to that instruction in fact that instruction was agreed on by the parties the judge issued that instruction and there's no suggestion in the record that somehow the jury was confused or did not apply that that instruction and in fact if you look at the entirety of the openings in the closings not just cherry picked paragraphs what you'll see is that on infringement we argued the absence of three specific claim elements based on the court's constructions express use or draw its physical integrity behavioral integrity your honor if i might one thing i'd like to point out that's unique to our case as opposed to the google case is the physical integrity limitation we did in fact present undisputed evidence at trial from their expert their expert dr martin conceded that he was able to access information about licenses and about the digital works themselves from the google system the deconstruction of physical integrity is not being contested by content guard in this appeal that that construction is evidence and that it went to the jury i mean you go fair enough your honor i guess the only point i would make in addition to that concession is there was no substantial evidence to support a finding of infringement of that element not only did we present evidence that establish not infringement including the admissions from their expert but in fact there was no evidence that was presented that would suggest infringement of that element because even their own experts admitted they were able to access information about the licenses about the digital works from the google system and that testimony is on page thirty eight of the referee rounds i will say though i suppose i should mention just in case the court has any interest in it  we do have a section one hundred one argument among others and our cross appeal and i would just want to point out that in the briefing on this issue content guard does not actually disagree that the library loan  transaction is the free internet analog for what they're claiming in their in their claims what they say and what they said at the district court level is what we have three integrities that have to be applied to three attackers that have to be applied to a computer in order to make it a repository but if you look at the constructions that nobody's challenging of those three integrities they're really nothing more than functional goals they're not specific as to either hardware or in server system so he and that's at line twenty one through twenty four at ten five eight two this is the opening stages of the opening statement and then again at ten five eight art result system or whether you believe they are using dr stephanie trusted system approach plain and simple that's what i was objecting to your honor that to me it looked like it was going straight to what i characterize as prosecution disclaimer but i do believe that it is an analogous thing to a practicing the prior art because what he was trying to do was say we practice what was disclaimed by d and what was this claim by just a griswold was i'm sorry the doctor septic and the griswold system was in the prior art that said your honor i'll also point out that google doesn't really challenge in their briefs the kinds of arguments they made to the what they say is we we didn't say we practiced the prior art we said we were analogous to the prior art and that's on page forty five of their brief so they were trying to excuse this we didn't say we were the same as a prior art so we don't infringe declined that the license server that he was describing was actually different than his invention because it required a constant communication link back to the license server each of the claims in this suit require that the usage rights be enforced on the user's computer not and so that the license to use to try to have to be in forcible on the user's computer that's what the claims require they don't require any particular way for the computer to find the usage rights that are a click a bolt to a particular movie but certainly there has to be a way for the system to enforce those rights but