i'm sorry the response to the noah system that's right and you say i want to know is systems the invention issue here need not be implemented in a general or special purpose computer the only evidence of the invention machines you can use general purpose computers to implement the invention you can put the detainee's to the software d t e into general purpose computers at the various  software that can be software or it can be the d t c candy machine what machine looks like the machine is just a machine that it allows you to extract data to  machines that can detect when someone sends them information and they can detect when there's a change works in the splines let's say there's a number of microprocessors being produced that can be sent now does it involve electronics of course it  but i believe that there are machines by which these various functions can be performed likewise there are there are software that can perform this function would we call that you machine a computer i think that you could call a computer  implemented in hardware or software the statement that says it's preferably implemented in software tells you that it can be implemented in hardware  i'm like i said i'm not an expert in this field but regardless of all that we point to algorithms for each one of the functions throughout our r l the claim construction three and the district court did not address any of those out  now the fact that it's my understanding is it can be implemented in hardware speaking with the inventor and the other you know other people that are skilled in a ferry and i don't know exactly what those machines are but they tell me that a candidate now what we have to do is we have to look at this from the perspective of one of ordinary skill in the art regardless of that the fact remains that we put in substantial evidence of where the algorithms would be exist within the specification and then from that point in the green your honor i think that this is the primary thing here is us it's s a p s obligation to come forward with evidence from the perspective of one of ordinary school in the art that those algorithms do not me the are not corresponding structure they presented absolutely no evidence from that perspective that these algorithms did not have that in the patient instead they only provided attorney argument there is nothing in there from the perspective of not present any evidence from whatever from the perspective of one of orders going there whether it's a deposition testimony from one of ordinary skill in the art or from a declaration from one of ordinary skill mirrors or from an expert they had to come forward with evidence someone have to come in and say the algorithm that they point to here is not corresponding structure because they have to introduce that evidence once that evidence is introduced then and the burden might shift to tell congress to say wait a second that is evidence and you come in with a witness that says it's corresponding structure but what that's a piece failed to do here is they did not come forward with any evidence from that perspective they admitted that  that that's i don't believe disputed at all so we introduce in if you look at i believe it a a eight  sixty nine through ninety three throughout that portion of our briefing at the claim construction proceeding we set forth in very specific detail if you then turn to s a p s briefing and that's at a thirty one ninety seven through thirty two ten you don't see any evidence from the perspective of one of ordinary skill in the art all they do is they argue and they argue based on what the specifications says they argue that there is no corresponding structure or that what we identified as corresponding structure was not planning structure so what was the district court did was they turned the burden on a test they the district court eventually said that it was up to all commerce to show that there was corresponding structure but if you look at booty versus harley davidson all boys all of those cases talk about that when someone like s a p s comes in and says that a plane does not have supporting one twelve six structure particular those particular algorithms and structures that we identified were not met did not meet the corresponding structure limitation for one full sets not one place in there and there of retort to our claim constructions do they put that from the perspective of one ordinary skull ere they only argument and that is a critical distinction here we brought up this issue by the way all the way back to discovery we asked where is your evidence of one of ordinary skill in the  art that the claims are invalid under one twelve six never have they produce a single witness and there's a reason for that the reason is this they presented in the re exam that all the claims were invalid  now they can plead the alternative and that's perfectly ok but what they can to is of with the consequences of doing it the consequences are these they're saying that those elements each one of those means plus elements are and jurisdiction that's a threshold issue that this court must decide first and what happened in at this case is us those filed in the eastern district of texas venue and personal jurisdiction were proper over was the district court they filed the defendant filed stack filed a case in the just southern district of ohio nine days later mr hildebrand panel her father pat infringement action in the district of colorado when the case was the case in colorado was in transfer to the southern district of ohio mr hildebrand said i'm not playing in this game anymore and then the district of ohio did an analysis and found that there was personal jurisdiction over mr h nd and entered a default judgment against patent infringement action and then they also entered a a declaratory judgment that the patent was invalid and on and forceful i believe and so the the we've used to you as a plaintiff brought the suit in texas they promptly moved for a transfer and it gets moved to pennsylvania does that change your position any in terms of the futures direction sorry i misunderstood i thought you were saying that the pennsylvania court could enter rejection against you what they will put it this way i'm not saying that there's personal jurisdiction what i'm saying is what they can enter a judgment against you if there's no person of yours that's true but they still do it and that's the air that but that's not the question whether they still do it question is whether they legally can do it right now my hypothetical question is simply this let's assume there is no counter claim against you so you are not native defense correct let's assume you are simply a plaintiff in the texas action which gets transferred to pennsylvania right you're still playing when you're a plaintive walking in the court you concede personal jurisdiction as a matter of law i kno walk into the pennsylvania core assuming no counterclaim no that for that that jurisdiction was only for the houston district of texas where we c answered this issue in the genentech case the genter case the direct question was asked to district court had been concluded as part of his reason denying transfer as to whether or not there had to be personal jurisdiction over a plaintiff in a transfer that laid all of that out for example in the murray takes which the genetic or kids cited with approval explained that when a plane and starts a fight picks a fight and decides on the event and initiated the case in that a different statement mr moore and from the statement that it's not necessary for the transfer recorder to have personal jurisdiction over a party that is before it about which is going to make a judgment i admit i agree that it's a different statement you can make the statement perhaps is that contracts for hire is whether that the conceded jurisdiction from the original with approval is that once the plaintiff picks that flight if it gets transferred properly under the other circumstances their due process rights have not been violated the murray case is very specific on this let me give you an example your honor about if the case were any different what the ramifications would be and non practicing and company with no other ties anywhere else that's just formed for about medication could pick any venue and incorporate their just drop this company in that venue could be nevada colorado arizona or wherever it might be under their viewable long the court would be have no power and no matter how much more convenient another jurisdiction works no matter how much more we're in the interest of justice to be in another place where all the parties work even the inventors were under their view the court would be powerless to transfer it anywhere else and he's could game the system and bring cases wherever they wanted with impunity the murray court makes the point  and they actually cite to an interesting case now that you bring up that issue the phillips petroleum supreme court case that says unlike subject matter jurisdiction where it's part of an article three aspect of things personal jurisdiction comes from the idea that you have to have due process and the more a court makes the analysis very clear that when you have a fourteen zero for analysis the statute itself congress provides that due process the court can't just transfer case willy me read to you from your read brief moment you make this statement on page fifty five the district court in fact is would have applied the same old law as was applied by the district court in pennsylvania and moreover as l commerce emphasizes both claim construction and indefiniteness are questions of law reviewed the noble by this court making the origin of the decision for material to the outcome of that it doesn't matter whether a district court ever has jurisdiction over a patent case because long as it comes up here we can decide it in the laws going to be the same throughout the country i don't know you don't mean that do you  don't mean that at all here i hope not just your own thank you i don't mean that at all when when a plaintiff what do you mean what i do mean your honour's this when a plaintiff brings a lawsuit against the defendant there certainly is the recognized walk under international issue and subject matter jurisdiction this court would have to address subject matter jurisdiction no matter what the case i guess the point is that your honor gentex we believe dispositive inside of the case and no uncertain terms i could briefly talk about hold a brain if you like your honor if you're all troubled about it because that's the only case that we rely on they rely on we cite nine cases in our blue brief where the court has said that there doesn't need to be personal jurisdiction over the plaintiffs in the transferee forum they cite to one case hildebrand that's a very particular case and plays right into what you're talking about judge player the first case there was file in ohio against it was a declaratory judgment action against the point the second case was transferred only because of the first  in other words the when the patsy decided to file his lawsuit in colorado it was transferred for one and only one reason not like here where it was a more convenient then for the parties to the witnesses in the interest of justice it was filed because of the first filed rule the fact that it was a transfer case was brought up by this court once in that entire opinion and was in the background section from then on it was analyzed as the plaintiff's case where there was no question that that case had their personal jurisdiction over the pattern owner absent the defendant and when they reach the final conclusion i will concede that they dismissed both judgments they vacated both judgments together and that makes some sense if it was only transferred because of the first filed case and that case should have never been brought up in the first place decision like i said you would have a situation where an p e c non practicing cities could file anywhere with impunity and the idea that their due process was violated when they left massachusetts for shopping for texas where they had no connections farther away from home because that texas court went to a thorough analysis said that all witnesses were up north and it was more convenient for all parties in the interest of justice demanded it that is due process and that's what the gentex case and the british talk about i'd be happy to talk about that more your honor but perhaps you'd like to talk about the means plus function issue that's which to me is present please your honor the important thing here your honor is that it just as you pointed out judge wallach from the letter that we received last week they said all throughout the region of the district court that we're talking about a situation here where it's implemented on a computer where it's software and that's not by coincidence there are two statements i'd like to point you to the first is in the specification where it says that the d this your honor no matter what your views would be as to how much structure may be required in a software means plus function case this court's precedent is clear on one thing that's from the no systems case and they receive practice and numerous other cases w m s gaming your honor that when you're dealing with a software situation and when you're dealing with a special purpose type of computer like this where they say the way your honor in their specification that quote some custom programming is required they say that when you're dealing with that you have to have  this is not such case i would encourage you as i'm sure you all have to read the district court very well reasoned decision all of the things that counsel my colleague over here pointed to in the appendix from being from their brief to judge dealt with twelve pages i mean change data why is that for example all you can point to is a black box that says d t e it's no different than in blackpool it's no different than a black board where you have another situation where it was a black box what happens here is all they do is  the burden of invalidation is absolutely on us by clear and convincing evidence and the justice report pointed that out but what he found is and what is completely accurate in this case is he followed the credit proof of default systems case and the aristocrat case and you would have followed the no existence cases that have come out by them and all all of those cases say one thing your honor which is once you identify a structural in the specification the sufficiency of that structure your mind whether that sentence or systems case had an exact same situation it's almost eerily similar to our case out of pennsylvania two of all coincidences and in that case the defendants that these are the point of said the same thing that our colleagues over here are saying your argument comes down but no the system of the case says very clearly one month ago aristocrat said the same thing that the world is divided into two aspects a means plus function no it system says you have a first category where you have no disclosure of a structure at all court is time and again in the aristocrat case in blackboard and viola dean and no it systems said no amount of expert witness testimony can make up for an absence of something in this and in the  can be used to argue if irrevocably that it's true your honor it's like point the structure your point the specification in the court is certainly empowered and able to look at the specification for them to say we presented no evidence is to me  completely in the wrong direction sieg most important piece of evidence that there could possibly be on did on this issue with the specification itself and for them to keep criticizing us for not putting in some type of expert reports when the specification doesn't disclose any algorithm and when the does report specifically reviewed what they had and said it's circular if you take scanning it says go to the d t v if you go to the d t what does it say it says the d t stands it becomes pure functional claiming to which tells you that the first thing you've got to do is identify an algorithm if it's not there you don't get to step to your honor i understand and appreciate your honor i completely understand and appreciate that there might be divergent views once you identify something that the structure as to how much is needed and maybe the parties will get up and say let's have some experts talk about that well they don't think it is wrong or incorrect and where i don't think the court has gone in the wrong direction on this is the type of a situation like here where if you were to accept their argument that even getting it off the ground would allow you to gauge under the guise of one file paragraph six which we saw the last appeal on under the guise of one twelve paragraphs there and that the big if it will become surely functional claiming here is what their argument is up expanding for change data as one specification and show that the only things that they even arguably say is a structure like a d c is not an algorithm we think we have met the burden of coming forward by clear and convincing evidence and showing the absence of something and if they can come back and at least show us where there's a structure then you don't get to step two and that's what the cases say it's just like the a c m situation if i can finish my thought with your honour's blessing on the d t e issue here's this identifies a problem ron or i agree with you that there could be different viewpoints on how much structure is needed in the midst was a function i totally understand and appreciate that but i'll take one example of standing for a change date they don't say look at the d v d and when you go to the specification which is evidence which couldn't be any more important as evidence the d on scanning all it tells you and all they point to is that it says that the d v d stands for change data so you're back to the language of the claims and this court said specifically in the no assistance case of this type of purely functional language which simply restates the function associated with the means plus function limitation is insufficient to provide the required corresponding structure i think that's the end of the story i think the no existence case got it exactly right there they said that the plaintiff did not have the right to go in an expert report and they tried to on the summary judgment stage and they said here's all the structure and the court said no they didn't get past step one step two once you have a structure may have a divergence of opinion we think step one should be very clear there is no al so eight sixty nine three seventy two there you will see a detail explanation for mark lane construction brief where we go through and see the specific structure the d t and then we listen numbers of how that gets done in other words an algorithm how that happens and we specifically point out where that is and you can look all the way to a seventy two we also say that the other another thing a data collection site which has a database and a publisher within it and my understanding is that to be a specific structure or can be a program structure that that well because the monitoring and we give specific examples of that here now we would say that i don't know how i can reconcile no one with support with the previous decisions of this court so you would concede that no is against you on that issue i don't believe so because a for this reason for the reasons we set forth in the letter that you said came in may second and apologise i'd forgotten about that the reason that we don't fit into no i think no it is probably wrong given that mil budi all voice but it's doesn't matter because we showed can you going to any specific structure of the room yes i don't want you to read only one run record don't run don't cite something not right i just wanted to cite those now if you look at it and going through the sites if that's ok i apologize not presented anyone that said that that would not be the case  ok and then if you go down to the paragraph that is the last starting of the last full paragraph on eight seventy in one environment the supply chain cite the scanned at regular intervals for change data that's to ds new data to the data collection site upon finding a change the next one and a seventy one the process can be performed regularly upon the expiration of a pre determined time period or for example when a change in the da as he says at the outset we recognize there is no structure here there's no algorithm but that's beside the point because the burden is on the alaskan trencher then why not if they can see that would be a concession that there is no structure but you have to then get incinerate tax if we're going to go to in that direction but if there is a concession an admission by the panel that no structure exists then they're in trouble that's not what happened here we pointed to structure we pointed to algorithms for corps of onyx truck so there's some circumstance in which you think no one might be them not to be only i don't know that knowledge is valid because your is a clear and convincing standard to eighty two says there's a clear convincing standard type arises from the courses is clear and convincing standard and all those cases say that it's the challenger that must come forward first with that evidence  evidence he can hand is that candid in statement by the pet the expert saying the surge as we don't know if that's the case and i think there's a concession there would be evidence that there is no structure no such in the idea that there is a concession once a patent owner filed an infringement action to work to nationwide personal jurisdiction is wrong and it's wrong because hildebrand says it's just southern district of ohio and the district of ohio decided that they had personal jurisdiction this court reversed that and said that the district of ohio had to have personal jurisdiction over impact infringement action in a district does not mean that that patent litigant has conceded or admitted or consented to jurisdiction wherever that case but abroad you have to look at personal jurisdiction first