six wisconsin alumni research products use hash load tags corresponding to a group of float instructions and therefore do not make a prediction based upon a particular law instruction and third district court legally turn to the first what's respect in the second line if if we were to complete that that there was waiver with respect to the requests for instruction on the term particular where does that leave really over association or or particular it's particular your honor and it's not and in a on the claim construction dispute although that's an independent reason they don't help in any not why is it not dependent on the plane construction isn't  dependent on both sides agree that it's plain an ordinary meaning so if we're going to assess the jury verdict against the claim construction what do we do with that i mean we have to define plain ordinary plain ordinary meaning you are actually that's correct and i've tried to distinguish the two sets of circumstances determining what the plain ordinary meaning is and going to trigger a knowledge question about what happened when the court decided to construe the plan from the outset apple took the position that the plane or very many of them were taken there was a single load instruction that is we took the position throughout the case that the focus should be by which you mean one and only one and only problem is a number of these formulations that get thrown around are not necessarily inconsistent with any load instruction but possibly others as well well and if you question is it which side of that line just particular fall it in your let me break it into two distinct arguments if i could let's take the plane in ordinary meaning argument to what a chief judge cross question we took the position just as you say that the plane an ordinary meeting is a single load instruction consistently and we said the question is for the hatch low tags are they associated with a single load instruction and the answer is no the only evidence evidence you have dealt with the plane or in ordinary meaning of particular is is that a one forty four to a one forty five there the district court quotes to dictionary definitions that are the plain ordinary meaning they both describe it as a single instruction he then goes on to say that you could have it if it's trying to project something right like you're trying to protect like in the sad old days whether or the cleveland cavaliers were going to win in a particular game you would be saying it's not just associated with a particular bent of the bron james going so many points because it could also be associated with the particular event of the other team not scoring as many points or with someone else on the team scoring a particular number of points now the words if it can just because you're talking about particular meaning one thing appropriate the the end to see the reference to that load instruction why isn't it a perfectly plausible reading of the language of the limitation a to say that they're using the word particular in effect as a an equivalent of the word set but if the word said with their i don't think your argument would hold water would it i mean because it is could be said instruction or it could be other instructions it wouldn't be exclusionary well your honor i guess are true things when it's not said well i understand that the question is can it be understood to be the equivalent of said in other words that when you say  the particular instruction the particular instruction to which we have referred above and you're on it the answer is no for three reasons the first is the word particular rather than the word said is used twenty times in the specification took your honor to the bottom of column and in the top of column eleven and you trace through what's happening in syracuse two three and four you will see it  talked about a single instruction and even when you at the last minute said you wanted to you said you've probably already ruled on this but we're going to ask it again this instruction and you said you wanted to just say it was a single honor originally there was no lead to the question and then actually address a couple of the other issues that i have during the course of our time here's reason there respectfully there was a different set of circumstances and i think you required but if there is a construction required it is the single instruction but you never asked for it and then at the end of that at the end of the charge conference you should mitt one document that said you've probably already ruled on this we know we didn't ask for and it's a construction and now we want to be a single not one and only but a single no no your honor actually what happened there is when we responded to works motion we said we don't think construction for acquired but if it is i single instruction and if you decide to and instruct if you decide to construe you should instruct the jury on october the eighth which was the third day of trial the judge the shooter's opinion and construed we then said the very next morning you adopted a construct and even the least because he didn't need to be charged this was still tradition trial f it was before the charging conference was within twenty four hours of his ruling and that's why i said i disagreeing with the fact because it's a different sort of circumvent i just ask you a little about that i mean you've mentioned that this was a really sort of unusual seconds yes and i can't disagree with you but what went what was going on here i mean even and originally and indeed even in his when he decided granted your most or denied the motion and he gave you the construction that you now say you wanted which is single his last sentence is but don't emphasize the importance of that so i'm just get to the portion of the trial that judge proceeds referring to an issue of whether there's a claim construction coming in under the guise of a expert's deposition becomes an issue and there's a series of objections allow someone to reach the conclusion you just reached but after august that's money but if you go to the testimony that's in fact cited at appendix two two three nine two two four all and two to three seven t testimony what he says is yes there's aliasing one percent of the time or so but there's hashing one hundred percent of the time and one hundred percent of the time the loaded structures are associated with as a group with a low tech huge difference to our instructions and they're updating the same protection same time because they happen to have the same low fat and actually this is why there's only when is very important because with d of the time has nothing to do with whether the there are no tags that are hash float that apply to an instruction what about the documentation that that says you d predictor can be thought of as uniquely identifying load instructions and that seems to imply from the technical documentation that but that doesn't mean that it always occurs if you best way to put it if a particular mode instruction speculates and gets a prediction if she followed instruction has a data dependency in the apple system and it gets a prediction and that and a low tech when that low tech comes up again every single instruction that has that load will be prevented from speculative and so wild three seven five two patent goes every instruction that has that low tech is prevented from speculating and it will prevent speculation in a circumstance where the seven five to ten would allow now why it's more there was the it least the demonstrated capability of infringing in texas and you and i think the key here is to look at appendix page thirty nine twenty four to thirty nine twenty five and what happen report then we go to the next page and he's asked a question about the test ports he answers it generally but he never says again but the test port can test for whether it was ever used to test for anything here in the united states or anywhere and whether that test could tell you whether the way first were capable of performing program instructions if you had gone to the next question which would have been could they execute program instructions were they capable we would have been right back to the question we have joked to on thirty nine twenty four and he would have been allowed to answer it so the record as it stands and this abstract and said see this is enough well what you have he says that that test every chip and so what you're saying is he never went to the point of saying that you have to test it before you export it look at the question if line nine did you reach conclusion in your report as to whether after printing in austin and the functionality of circuitry and designers that like yes what's the basis for that and then that's what and so i think i'm reading that one line and again i would be arguing to you in any event that that one line doesn't tell you what's being tested for is it a test where the power will go off it doesn't suggest that there's any program instructions that can be executed that i would be arguing to you was insufficient as a matter of law in any event but when you read these two pages together and you realize what has occurred which is the judge has stricken and excluded testimony you're going to impose like harris live already it needs to be something more than direction and control they actually literally use those words right out direction or control and what they say is required in addition is an agency relationship a crystal isn't it relationship where one person holds the other out as her agent and the other acts as you know the other so do you think correct and we can have divided infringement and if if i'm being charged with infringement based on making a device and i make that let's say the case for a phone and then i contract with you to make the rest of the phone then i'm low i'm all for infringement for the entire phone but if i contract with you to make the case and the rest of the components of the misnomer for the joint and divided infringement issue i understand that but but my question is are you saying that it's long as i play some role in the infringement by making a portion of the implicated by two seventy one the truth but do you agree with the premise of my question that if i made the case and contracted with you to make all the components other than the case that then the supreme court precedent and that's that is what we said to the district court judge you know you get jacks to me just for you the last minute is this quite apart from everything we discuss there was a pretrial summary judgment it was based on matter of claim construction it would be wrong but even if you set aside the claim construction issue that was a question for the jury to resolve which you have on the record before you is this you have not to call wells testimony never really got a resolution the judge said and it sounds to me looking at the timing of all of this that a lot of what happened happened in real her in the middle of trial with her hurly burly of things that ended up getting decided probably and written overnight between the motion your response the judge is a letter and then the text order that came out the next day so there's there's some rough edges there obviously but what bothers me is that you've got an instruction partly you've got the construction by the court that is the one that you latch onto which is the single vote instruction traction but then when we get to the jame all the judge i find single at least open to some ambiguity as to what it means because it doesn't say single and no other so when we get to the j more sure enough the judge says well the meaning of the term is in effect he says and the evidence is sufficient to show that a reasonable jury could prove that the prediction was associated with a particular load instruction even if that same prediction could be associated with other low instructions all of which leads  me to believe that at least if the judge is being consistent that he believes that the single load instruction construction was consistent with worst view that this load instruction could be following things and i don't think there's any dispute one it's worth brought the motion to the second is we said no it's plain meaning this is a factual question but if you're going to construe it it means a single instruction and here are just cherry definitions and here is what the specifications is worth came back and said no no no it can be a group which it had to do because the undisputed facts are that we and we have a limited number of looked at x and it said it isn't he doesn't decline to rule because either of us has he said no i'm going to rule and what he does that is he says here are the dictionary definitions both of which are honor support a single unique instruction at least on that issue i think i mean i clearly was you clearly would have lost on that structure if he had given that instruction what we would be here on is arguing to that that claim concession was wrong right and i think request for a jury instruction or a claim construction using a single instead of the words of the claimed not particular let me ask you just i exactly that way then it's clear the pro science had waived any further construction we've already put but how would we evaluate the evidence without ourselves understanding what the parameters of the claim ok let me do it with the words of the particular with the actual claim language so it's a prediction associated with the particular loan instruction i'm using the instructions that it that a consumer structure ok ninety nine point nine eight percent of the time there is that association and there's no meaningful dispute on that dr august basically agree mr williams an apple engineer agreed here's the point about the single argument to time the use of the words a single to interpret that particular and i can give you the particular spot well but but before you do that and i'm interested in the answer to judge pros specific question yes and what i'm interested in is suppose country and you're arguing the merits now which i mentioned but but suppose that contrary to what happened there had simply been an instruction explaining ordinary meaning and the argument made to us on appeal was insufficient evidence what do we do do we say there is a range of possible plane unordinary meanings and we're not going to decide what an ordinary meaning names and therefore if something fell within this range we would sustain the jurors verdict or what do we construe the actual meaning at that point as applied to the facts of this case whether it's the word or a single there is some disputed fact that there is that association prediction associated with the loaded yes yes i understand and i'm looking for a more hit to the more abstract question of what is the what is our most of operandi here and what what should we do by way of considering a situation in which there has been a plain an ordinary meaning instruction and construction and it's not just one unknown but it's one and only every time so if there's one time out of a thousand where it is not associated with one and only instruction it's apple's position they would win they would lose under every day meaning any meaning that one wants to give that's reasonable with the words of a particular or the single what the factual record is that there is a part diction associate it with a say a single load instruction and only a single load instruction ninety nine point nine eight percent of the time and that's because it's because of a number of things there are only one hundred ninety two entries in the table so talking about millions of instruction makes no sense hashing is irrelevant to this so factually there is always an association except for a tiny tiny percentage of the times so for ninety nine point nine eight percent of the time there's infringement we are it can you give us your best record sites for what witness testify sure sure first of all let me give you apple's dr august testimony on it's at appendix twenty two thirty nine the chances in which a prediction will be associated with more than one load instruction is point zero dash point zero point one percent ok now that's the testimony that i referred mr leach to and he said well that's a relevant because that's talking about aliasing but your response to that ellie is seeing just point nine eight percent of the time it's discussed at length in our brief there's also reference to the apple engineer of mr williams who testified to the effect that it was a last than zero point one percent so that would be less than point zero zero one times so it's not largely in dispute that well over ninety nine percent of the time there is an association with one and only one association with more than one load instruction so the answer is yes but it's the same as saying that there is not an association with more than one load instruction ninety nine point nine eight percent of the time and and everyone agreed at trial there is that where is the linking between aliasing and the one load instruction because in twenty to forty and dr august and so if the jury is to credit this testimony that would mean that provided nine point nine percent of the time the load the prediction an entry in the table is associated with one load instruction correct and the answer is n you were referring us to dr august's testimony by my night and i did dr august is apple's expert right so he did fight on this in the sense of his trying to picture it differently ok but so let me give you the setting and then i'll significant evidence was put before the jury and so both sides had a factual clash on these issues and the jury ruled in favor of war so it ends up being substantial evidence question now let me eight twenty five seventeen to twenty five twenty five fifteen to twenty five seventeen and to kill or at twenty five sevente at starting at line seventeen he says explains dr conti it's greater than a ninety nine point nine percent chance that that the piece of information you use is going to be unique that's a twenty five seventy those are just examples i know but actually i think mr lee response to this in the briefing that maybe i've got the wrong thing but if you keep reading and that seems to be explained to qualified to mean something different than if you just look at it an isolation mark and indeed what apple does the apple engineers are smart they work really hard to come up good pick me they wouldn't use a zip code why would they use a zip code they use something like the street address operated and it operated our round it off far more than ninety nine percent of the time the prediction was associated as dr conti said with a unique tag or with one load instruction and there are many many other citations in the record but the designers and apple's argument is that that may be so in the operation of the way to look at the question of whether this association applies to more than just one in a typical case they couldn't structure it there are two reasons for that hurst in the pattern itself the seven five to panic column six beginning about line sixty one there is a discussion about using a partial address which basically is what hashing is doing it's dropping off part of the address ok similar to what we do with pat numbers right we drop the first four digits we just use the last three ok it says referring now to figure one and i six where the values x x indicate some higher ordered address bits that may be ignored in this example so they are discussing doing at the same way this is a discussion of hash so it's like dropping earth the higher order bits for a patent number are the first for good point number one is this is really a discussion of hashing or is it just the addresses for purposes of the discussion i e you know just not having some very very long address for purposes of explanation of how the invention works you know this is this is a discussion association because they are stashing dark to conti disagree they had extensive testimony about it there was argument about it to the jury in closing argument and the jury came out in levon there's a reference to the well reviewing a predictor circuit reviews a prediction table shown generally in figure five to see if they and the critical language that this particular instruction identified by its physical address is in the prediction table why is the reference to physical address not an indication that the particular instruction shows up in the claims and so why shouldn't we assume that that term is being used in the same way because it's also used in the context of the column six where it's plainly discussing a situation where the full particular address is not there second if you look at the claim language there's nothing that centers in the claim that you have to have the full particular instruction address i'm using the wor saying that there are actual load tags that have only one instruction yes and and other than him simply saying that what is the other evidence that would indicate that oh he went through the code the detector circuit the detector circuit is made by what they call an art it is a heard where rendition because these are hardware claims but it's similar to what i think the members of the panel will understand source code to be it's the exact technical way in which the circuit places where you think he most clearly said that he says in one place apple takes the load information and it produces one tag you take in that load you produce that tag for that loves are you saying that they're saying that every single lower only has one t k no i'm saying in protests only small number less than one percent can have more than one pack and all that would mean is that its own low tech now you make that argument at page seventeen of your brief from the full first full paragraph but you don't say that there's any affirmative evidence to that effect what you say is apple has not contended that every program has multiple loads associated with every low tech which is new and reversing the burden of proof so i wonder if there is evidence that there are programs that would infringe according to you because even under load instructions with it and every single one of those three hundred load instructions has its own low tech but note that that program would would infringe even under apple's construction correct yes ok and i think judge elmo is question in mind too is whether what you mean to be saying in this paragraph on page seventeen if you brief is that you have evidence to that effect that there are such programs and that they infringe i don't think there was any evidence of this very small pipe of hypothetical program ok where there is a load there is a unique low tag under all circumstances for every little instruction ok so we want to go ahead i think we have something with particular before we exceed time more than we wanted to i wanted to make sure you reach the vicarious liability question let me let me let me t mr lee pointed us to that testimony which was kind of rejected or not a law with respect to the witness saying this is what was happening because he wasn't there for the testing so do you agree with what to it was staying doesn't tell us what actually came in on the record ok here at a thirty nine twenty four to thirty nine twenty five question what's your basis for concluding that all the circuitry in functionality is present in the chip after printing objection followed by colloquy and then the witness my vice president of standards recertified this every two years and he use it to test the chips to make sure they work to make sure they're capable to do that on every chip couple things to  note he was president of the i trip believe that's why it's referring to my vice president who is personally familiar with these standards there is no dispute that the wafers manufactured in north in austin texas in fact have these tests ports and dr conti has other testimony that relates to this let's go to ok so so he can see that he didn't do any testing himself and so the judge says you can't talk about personal testing correct but then he says these all have test warts which means are capable of being tested right and he says that i tripoli standard tells you how to test and  and all chips have to be tested but is there any basis for him to say that that testing actually occurred in the united states since he wasn't on the premises to see the task but the important point gives the claim construction focused on whether the infringing circuits were capable of that's the plane construction and it was without objection by apple so naturally dr conti's thrust of his testimony on this subject was capable and the main apple argument was that you thirty nine twenty five and does that require the blowing of the fuses answer no no let me go to other dr conti testament this is now at twenty nine fifty nine by the time you're away for all the claimed circuits work here they're already you know it's like you build a house i don't think we have twenty nine fifteen minutes is it twenty nine fifty nine and ten i didn't know thirty nine o thirty nine twenty nine question where is the functionality created in existing for the austin chips answer it's created in austin question and does that have anything to do with when fuses are blown or where in pumping occurs answer no no question what does it have to do with answer it has to do with the circuits that are laid down in austin going to twenty nine ninety five and this is on cross examination question and before bumping have one hundred nine ninety five twenty nine ninety five excuse me twenty nine ninety five question and before bumping happens you can't apply power to the circuits right answer actually you can't but you can do that on a test picture twenty nine ninety six question still on cross and it's correct the pumps are what allow the power to the circuits right answer as i said you can do testing without having to pump first think that's just the sampling of the testimony he is demonstrating in those few small examples the capability this was you just explained but wait what about the next i'm sorry what about the next two question says you have no evidence that any such testing has been performed in the united states right and he says i don't know one way or the other yes yes so so well he answered that correctly there but actually proving testing wasn't a necessity the necessity was proving capability and the a seven had about three billion  and what normally happens doesn't go directly to capability because you capability goes to the ark t l code it circuits that are laid down in i'm saying that capability because we're dealing with capability the capability is required irrespective of whether or not anything was ever tested in austin or anything was ever done and asked and i would say it differently and let me try to answer your question directly on the capability question the question is what was done in austin did it make the three billion transistor circuits capable the answer is yes that's what testify to about all the circuits being made in manufacturing no other circuits for the chips were added later carrier so then apple made the argument well you cannot hope i can clarify that so but it so he's saying that there's circuits are capable of and that the that they're capable without pumping yes yes so a testing device is used with them a specific testing device that's not an act actually i think people ok so well but i mean it it they they don't work unless you have the particular they do not have to be electrically tested in order to do that attached to them presumably they can't be made to work in the form that they are they they're just not going to work unless you put them up to a testing machine right so in that sense before you hook them up to the testing machine they're not capable they're capable only if you put the rest of the components together with them that allows them to perform the way they're intended to perform right and this court is actually addressed it in a couple cases and hopefully you'll find this to be a direct answer in silicon silicon graphics versus a t i decided in the this court reversed the district court and said no it was capable of raster rising if i were to simplify it let's say one has an allegedly my infringing microwave oven it's got an electrical power or is it capable of warming up food yes it is i could say yes it is in the box it comes it's got the electrical court but in fact if you want to look at it from another perspective you in fact  outlet so the silicon graphics case stands for the proposition that even of something else needed to be done it is still capable up the same holding circuit had no possibility with a test for it or not to operate and the question was whether it was capable was a capable of raster rising this court said yes even though and i think it was an operating system was an ant and finch and was to the same effect one had to get an activation code to activate it and this court said no there's infringement  a difference between just activating and understanding whether the functionality is all there right and isn't that why we needed more data with respect to what the testing would show and what happens when access but again there's no need to access it to know that the circuits are capable if the claim construction said that there had to be ok so what do they involve the chips are put in a packet and then they need electrical connections to the rest of the product that's what pumping is it's referring to solder balls where shoes in is done for a number a couple different reasons in what it is it's like a little hardware switch or switches and apple uses these as an example to have security for software purposes because apple doesn't want its i o s operating system to be used on processors that are made by someone else so these switches  to the fuses you mentioned what is the importance of blowing the fuses answer by dr office well there are actually components in the microprocessor in the eye that aren't fully configured there are some measurements that need to be taken to figure out for example how to interact with cache memory and once those measurements are taken the fuses can be customized and blown for that particular guy and at that point will actually be able to communicate with memory so that actually activates part of the circuitry or complete some of the circuitry before that's not so what he's basically saying similar to before that's done there's no it's not functioning well he does say that but dr conti's testimony is exactly the opposite i'm pointing out that at least his testimony dr august is testimony is that this is activation very similar to what's happening in silicon graphics and in fincham the main point is all of the operational circuitry for which there was no dispute was all manufactured put on the wafers in austin and at no other place in the world were any other circuits for the empire chip put on much less the was tried on the cable will love jury instruction that's point number one and point number two on that you had significant evidence being proffered by each side with different conclusions drawn by the two experts opposing arguments by both and there was substantial evidence to support the jury's verdict i don't think it was possible but we're almost getting close to the time that i did just very quickly the there were allusions in the briefs that i wasn't sure of indicating that perhaps the chips from the austin plant were not all of the chips at issue in the case but i couldn't figure out that with the question on steely in the summary judgment motion of anticipation of first i think that cross was trying to get to the point of is did in akamai will we saying to what we interpret into seventy one a for all that when two seventy one a was discussed in the aca my opinion it was a discussion of vicarious liability and the court basically said control and direction is applicable and control and direction can be found by prior cases in two ways number one agency or number two by a contractual relationship and then the actual decision infringement analyses or only from ethically i believe looking at the language the fears reading because there was no limitation to it was that it covered all claims and there's another infringer argued preexisting law only applies to method claims not the system or apparatus claims and the scintillation federal circuit decision said no we reject quest's argument here so that we can apply the law and apply it as i said earlier in connection with the  decision of the order was seventeen was first akamai came later so would have had a ready been settled that the law for vicarious liability could be applied to system we start with the claim language itself and there's a very detailed decision might judge conley this is the static vs dynamic yes prediction steps ok so first point if you look at the claims themselves the last limitation of claim one refers to a prediction threshold protector preventing data speculations for instruction where are you exactly  speculations for instructions having a prediction quote we then a pre determined arranged end quote and pre determined range would make no sense unless there is  updating or unless it's dynamic because all steely discusses is having a flag when there's been a mistake to lation so we have this pre determined when ange language and the forty column for at about lying thirty one where reads in part on that and quote object of the invention to provide a predictor circuit that may i doesn't or at least that that steely still doesn't explain the tack here is my understanding of the apple argument that was based on dr cole well but a fair amount of what apple argues in its reefs happy do it dr colwell testimony at trial which wasn't before the court in summary judgment which even if everything was before the court purposes of something judgment dr colwell speculated as to how the steely system might operate he could not and did not point to any steely he wouldn't draw a conclusion such as a trial well i think that's the way it's post operate and he provided some testimony that some association are overwritten and what judge conley said was well that's just discarding something that's not updating the prediction as opposed to what is in the every embodiment in the seven five two patent describes what i just described a dynamic circumstance even where apple says wait a minute part of the spec is not dynamic in this is toward the top of number fourteen starting about line three where this portion describes incrementing and then apple quotes out of context and it's really a reference to weighting schemes or pattern recognition but if one reads that foreign language about weighting schemes as judge conley found that not only does not support apple's position but it's really a description of something that is dynamic thank you we have your argument thank you very much i'm still four minutes five minutes to keep that will keep things even yes thank you let me take it in the reverse order and deal first with production then with vicarious liability and come back to question of particular which is where we started on this question of reasons one is the claim doesn't limit itself to dynamic it just says production the second is a column fourteen if you if when you consider the i can just made you mr she said that the system of the seven five troop requires incrementing it for money that's the dynamic aspect column fourteen says you don't have to increment and it describes a waiting scheme and a waiting scheme could be done to me saying that the first is that and i still mean cases require some structural modification before you can use them that's what funky infusing it is it's a structural modification you can't use them the second distinction so that's what says is you can cast doesn't say what for doesn't say whether they're capable of performing program instructions that is the key i agree with mr chew on that when you got to that question so your point is that the functionality  until you bomb fuse cut you can't use the chips and that the testimony that mr chu cited to you all of which was before the judge struck  cockies testimony none of it says anywhere anywhere that those wafer search capable of performing program instructions doesn't tell you how to load software on to those wafers doesn't tell you whether software was loaded in their brief and that is that you ignore the page and a half a comes for when judge says no you know if you didn't test it if you weren't there if you don't know what the test was for i'm not going to let you say it what it was the issue really crystallized and what we're says is at the very bottom even apple's dr august's confirm such scenarios exists and he agreed and then you'll see quote a prediction will be associated with more and one load instruction close quote only when quote aliasing occurs close quote and then you'll see the citations this is the linchpin of their argument responding to the question of judge pro