when you're ready mr mccormick of the claim construction issues of the five that we presented to your honor's those two having led to the summary judgment opinion of nine friends from one of the other three for us that they didn't leave a summary there before your honor because there was a it rests on two claim constructions not five but i believe your honor that the order once there was a final judgment the order of that court is appealable and let me suggest to you that we don't want to go back down to district court and with incorrect claims true but let me come back to that too because where the rubber hits the road really on our appeal is look ahead distance and train for about every day lead up to the summary judgement that was granted not let me start with  distance i had that the system was the only limitation in the claim that's an issue in this case on the walk a good distance is not a limitation ites definition but how it's computed how it's  the only limitation is that that look ahead distance is a function of speed that is the speed of the aircraft that is it's not a fixed distance it varies with speed but how do you determine distance without calculating time also your claim that's necessary to practice the invention and your honor let me focus on this time is inherent but not some particular like time what the court did was to go back to the descriptive part of the specification say i'm going to impose the added limitation that it must be a function of the speed of the aircraft and time to complete and the base of the new we believe that that was in correct time is inherent but not some particular portion of time but lots in the interest of time except that for the moment that doesn't get the summary judgment because neither of these defendants has in any court and will not today stand up and say our system doesn't provide time to complete in the face of maneuver and there's an abundant record that that's exactly what they're looking ahead distance is designed to do so how did we get to some reject we got the summary justice because after the court construed look at how distance to implode time to complete innovation of maneuver when the court got to summary judgment the court did not compare those two but those devices to that term the court compared those devices to figure five of the patent this is the record in a two fifty five figure five shows an example of how using a three step process example of how to look at a distance could be computed it's not even a body it's just an example of how the calculation could be done and the court decided that and this is that the summary judgement opinion it appendix one eighteen that they didn't have this particular method of computing that the look ahead distance and we don't believe with due respect the district court that anyone could read read this patent skilled or unskilled in the art and think that's what was invented there is no time element at all in the claim first the court adds time to complete invasive maneuver and then incorporates all of this specific figure five in this court has spoken to many times to count but that is not a proper way to keyword to the closest keyword runaway let me suggest to your honor that i can demonstrate that it's not an express definition train for about when you when you're landing is the closest runway going to be something other than the landing runway destination runway which is how universal in its sas sounds a little strange that there's going to be a closer runway when you're ten feet off the ground but universal says we don't do it because we don't use the closest runway well obviously the destination runway becomes the closest runway but let me come back to the to the language column can indeed uses the language that you suggest or are proportional to the closest but if you look at column  delta agent says as mentioned above the delta age this is the home a lot in line seventeen or eighteen the delta age terrain floor boundary is a function of the distance from the runway a function not proportional now is proportional in function the same perhaps it is but proportional but a function of the distance to the runway now your honour's let me suggest once again we honour's already identified why in the case of universal it is in addition to that we as we laid out in our bridge in the universal device it's destination runway that counts while it's on the flight plan but with sandel sandel doesn't dispute cos it's a sandel says we're not proportional because proportional they're going to read of course as the district court of actually did proportional to mean something distance of course and therefore and this is that their brief read brief in fifty one we don't have ours doesn't vary based on quote a simple distance the population well the pattern doesn't call for a simple distance calculation if you'll look at figure six which is an example the preferred embodiment it shows a step down it's generally a function of distance you generally if you're getting closer that train for is coming up from under you and that plane is getting much protection it's not linear and if you look at the district court summary judgment opinion this is the core of the mistake the district court made with due respect summary judgment opinion this is that the at the appendix of a one twenty one the court when it gets a summary judgement says well that's not directly proportional and with due respect that is not how this claim was construed by the district court however wrong years can you return to the microphone for college i thank you take your six shows an example of the train floor boundary stepping down as the plane is getting closer from the right side of the n with regard to train for boundary it seems that what counsel is arguing at this point is a new factual argument with regard to what proportionate means in the court's claim construction what difference does this make the landing runways going to be the closest runway in every imaginable instance particularly if you're on the flight path if you're off the flight path then the game's a different game well actually so in other words even given your claim construction don't show in french no you're on the issue of course nobody close it's runway in some instances is not the landing runway at certain airports but when your until you are practically touch down but the the key point here is whether or not it was proportional to the function in the actual system is proportional to that distance to the closest runway there is substantial evidence on the record from both sandels technical expert and the designer of this is that in fact the function is not proportional to the closest runway because of the way it's calculated in fact in certain situations you can have two different values for the same distance if that's the case it cannot be proportional  report credited that testimony and found as a matter of fact that the system did not have a calculation it was proportional and we believe there is substantial evidence to support that and i believe in fact that the relevant function of the distance of the runway the relevant boundary is in fact as defined by honeywell in its specification proportional to the distance to the closest runway that's the way the specification recites it and in fact for boundary as the distance but proportionate all we're doing with this and as it explained here is that they were just trying to prevent nuisance warnings we just don't want the thing to go off or on terrain warnings when you're landing well that's going to work and both of these systems i mean the goal of the system of course is to is to prevent see fit accidents and to do so in the way that this particular claim element is to prevent nuisance warnings that's in fact part of the proportional sentence to the closest airport to prevent nuisance warnings that's correct if we include that part of the definition don't  have a different outcome you know if you do it differently you can still prevent nuisance warnings using a different mechanism and that's no argument in the claimed term the claim term just says to rain boundar talking claim construe the claim construction is is what the specification defines and what was defined we believe the district court follow the rules of play construction to the letter you look at the claim language you look at the specification you'll get five history this is  to prevent nuisance warnings closest boundary which is going to be the landing runway in every instance when you're going down on them or struggling to understand you very which you know you're reading some part of the definition and not the entire nationwide actually our system uses a blended distance based on several different runways at the airport averaging the distance between those different best at the destination at the destination airport right it's a blended distance reviews or definitely the cases that relate to the issue of or in what respect to the district court upon the wall i believe that the district court expanded what is as as been said by this court a very narrow  and it can be applied sufficient to negate a pretty critical the public use or commercial sale to cases where the testing was performed to perfect the claim features one of the features is device for alerting a pilot now how are you going to know if your own learning and pilot unless you test it with lots of pilots and make sure you are communicating with them and alerting them again i understand that's in the preamble but i think that's a pretty critical part of the i only limited cases where the court has been allowed to inherently find limitations that are not express all that this is an express part of the claim this is it's in the preamble but i think it gives life to the whole claim you've got to learn the pilot now how do you know if you're adequately alerting pilots without running a lot of tests to make sure they're going to be messy and that's why this case is very instructive because it distinguishes between the necessity for field testing i e that it is necessary for the patentee to have the invention used in the public or to sell it in order to meaningfully test the those limitations that are inherent in the in the  claims and in fact in that case it found that the field testing was not necessary because g m could test adequately in house in its in house testing it had tested adequately in house to prove the d that patented invention but they didn't do that here yes in fact they did your honor but they the in house testing it with the we have a conflict in testimony right we had a bench trial we had findings and the question was whether this testing serve the purpose of making sure the invention would per performance intended use right with all due respect and there was testimony and documentary evidence both ways the district court made a finding so you'd have a problem trying to me that you're really attacking his factual findings rather than the legal standard that he apply no in fact i disagree because the evidence relied upon was all based on the subjective belief of the inventors that they did not believe that their system was yet ready quote unquote their system was ready for commercialization or for f a a certification that is not with the la has got to be objective lee applied there was no there was objective evidence based on that we have another line of cases that says it has to work in its intended environment yes we've got the intended environment of pilots who speak different languages pilots with different comprehension speeds and levels why wouldn't all of that factor into your actual testing to make sure it works with a learning pilot where is that intended environment recited in the panel where is it discuss anywhere where we're talking about aviation isn't this what pretty clear to want to skill in the are no in fact that's not true the one i go in the art wouldn't know that you got pilots of different reaction times and language capabilities what one of  ordinary skill would know is that the the system is described was something that was intended to improve over the prior that was clearly shown in the evidence before this court there's a there's a videotape demonstration showing actual flight on an actual plane the just report found that there's no limitation in the claim it's not even discussed in the patent what kind of aircraft to apply what the problem with this case is that was there any testimony by anybody that as of the critical  you could take this invention and install an aircraft and use it for its intended purpose that the evidence to show injected believe there was testimony from sandoz expert that the evidence of the videotape and the software that the court had in front of it showed that the invention worked for its intended purpose in an airplane flying against actual terrain and in fact saw the secret problems that prompted the institution of the research and development that had lent money to th that the best thing was to make sure that it would work for its intended purpose because this court has said repeatedly that it's an objective test and that the subjective belief of the inventor's that they need to win is entitle to minimal and in fact almost no way because all inventors will come up with reasons that they need to continue to experiment the fundamental problem that this court faces with this result is that it provides no guidance to district courts work to patty's as to what is going to be considered an inherent limitation not recited subjectively nobody says any of these limitations were reciting expressly in the claims and in what circumstances should this court expand the experiment and use negation is it a safety system contract for sale it's going to deliverable it's got commercial terms for delivery during in fact before the critical date and in fact the the point that the judge the judge below relied on was she believed that it was for experimental the contract said if it works right leaving open the point that they have still some experimenting to do to make sure it works and another clause says if it doesn't we'll sell you the look down technology your honor if you look at them because it's just discussed in the briefs the objective facts or there were and there was never any experimentation pursuant to that contract and in fact the inventor said that they believed it was ready before they installed the first unit on the gulf stream how can it possibly have been for experimental purposes if in fact there was no experimentation i believe you came in applying the standards set forth in the experimental use cases there was no testing when gulfstream how could it have been for experimental purposes that was clearly a commercial say thank you mr g p ws was offered to go through for three point two three million dollars in february of ninety nine for approximately five months for the group of eight your honor asked question perspective whether or not the product was deliverable and whether or not the product was actually in indicated quote this product offers the latest and best cheap e w s solution available today that's it a five point two seven subsequent correspondence after the critical date but referencing back those gulfstream sales indicated that the first sale of this system the cheapie ws was made in one nine hundred ninety four for installation in a newly developed business jet you'll see that the appendix is a seven one zero six seven zero seven but matter of look ahead distance both of these have evasion time bill kenwright that's not correct or in fact the matter is the way universal says it's not correct what's what's incorrect about that let me explain the way the universe was tall system works is fundamentally different than the way the claimed invention is just where you put a sixty second automatic time in and they figure the evasion time as a have function of speed which also includes a time factor is is judge extent of universal's on the of those not very whatsoever based on on any criteria of the aircraft any ability to turn any pilot reaction time which is specifically how to look at distance was defined in the specification of the your honor i don't understand why time is limited if not completely ok let me just very briefly you get ten seconds of good runner with respect to the public use which mr paul did not have a chance to address there are striking similarities between the harrington case that this court addressed and the fridge words demonstration both involved public use to reporters that were knowledgeable in that particular industry commercial indications of the actual commercial price for the that were published in the actual publications and i respectfully submit that poky use facts to support funding public use thank you mr borenstein thank you for the extra time sure would you give mr mccormick an extra two minutes so we can balance  mccormack you have a little over six minutes thank you your honor let me just say very briefly on climb construction summary judgment was the court has any other questions on that i just want to make one point you heard mr pollack say on the  take into account the distance as they get closer to the airport they generally do lower that distance what mr pollack said and this will be reflected in the record that the court quote found as a matter of fact that that was not a directly proportional relationship and i suggest to you with all due respect a district court that is not what the district court was supposed to be doing on summary judgment there was a dispute clear dispute in the record as to whether even if you accept question whether that's proportional that should not have been reviewed as a matter of fact let me turn to the claim to the car on sale bar issues and once there is any other questions on the first part of the argument and let me begin with the sale the gulfstream because every word you heard in the argument this morning and virtually every word in the briefing by the defendants goes to the question across the columns goes to the question of the sakya prong of fast whether it was ready for pat feature of the trial in this case seven days of testimony massive documents and substantial post tolerating i just read you if i can one sentence from the district court's finding this is that the appendix that one sixty one the court found that the authors to gulfstream collins and predecessor honeywell reflected in early conception of e g heat of us which did not embody the claimed inventions the  experimental quote as evidenced by the use of the back so this whole question there is experimental absolutely rocking and if you said to me and there's a very substantial record your honor i'm not going to belabor it it's it's the district court's opinion it panics want to eight nine but if he said to me ok you know i've got a short time give me your bash let me just suggest this you kept hearing in their briefs about how there were dozens of people who made these demonstration flights dozens before the critical day in round numbers how many of those people came to this trial how many did that time to come to this trial in person or by deposition to say we thought they were trying to sell us the system zero not a human being ever testified that these flights were commercial in nature indeed the district court found in the appendix that one eighty eight eighty nine in her opinion on the merits and no honeywell although i've been around a commercial doesn't make them experimental  correct she found that they were again primarily experimental quote as evidenced by the use of feedback to determine whether the invention to accomplish their intended purpose there's a substantial record on this urine or weekly after the critical day based on this testing were not claims were were not were unclaimed features this is just simply wrong only not only because based on the preamble language your honor pointed out to it is a fundamental review of the facts and extensive testimony and again this is there's if you have any doubt this is in the appendix at one seventy seven to seventy nine particularly one seventy nine the court had the benefit below there were four sets of r and d  design notes by happy for this system one through four by happy coincidence number three came two days before the critical day the court reviewed that all of the documents surrounding it all the testimony found reflected serious problems with the core claimed features of this case and i'd be happy to elaborate but this is all laid out in the court's opinion at one seventy nine and at that page the court hide those problems that have not been solved as of today directly to the claims not subjective testimony you'll see that again the term subjective testimony used in the sandel brief eight times and seven pages it was not the engineers the inventor saying this is how i felt it was the engineers saying this is what i did this is what concrete changes we made and how they related to the direct claims in this case the mccormack out of the  is design notes three that's two days before the than the critical bagel day ok the court finds again if you look at one seven seventy one seventy nine that as of the critical date months after george months after the georg flight was given inverted warnings caution comes before the before the warning if they have a problem with what they call rapid to sap had a i'm with claims that approach and the approach falls below the belt to the aircraft serious problems all of which changes had to be made not just after the george had to be made after the critical date several months later the court found i'd be happy to review the evidence that the george flight was not evidence that this was reduced to practice it was evidence of the opposite they said to george we want to show you our old technology which we've been proved down with walking and by the way we'll show you some of the work we are doing on the new system district  finding that that represented not evidence that it had been reduced to practice represented the exact opposite that the system was still in its infancy and had not been thank you mr mccormick thank you