before we get to our main business so we have a wasn't family occasion to celebrate and i have a motion to make and having made resolution video we pursue three years before you and i'd like to start with the instructional error we argue that the jury instructions on means plus function claims here the words overall structure in there but the paragraph we object to your honor is that a thirty three eighty four to eighty five and i think it's important to read it out to your honor's because here is where the district court added the undermining part of the instruction the district court instructed the differences between the components in the structure i have identified and the components in the structure in the product i'm having trouble finding the instruction for some really sorry it was thirty three eighty four to eighty five first part of the instruction the paragraph beginning at lines fourteen to twenty two captures the overall structure point thus the core of a dedication if the following paragraph that we find erroneous and respectfully i think requires a new trial and if we read it verbatim you'll see why differences between the components in the structure i have identified and the components in the structure in the product can be considered if the differences are such that it renders the overall structure in the product substantially different from the overall structure i have identified in particular where the different and or missing component is a component that plays a central role in the end genocide structure and what this did your honour's is in a sense told the jury to look through the wrong end of the telescope we don't dispute that the component are properly part of the evidence the components in form the view of the jury should take of the comparison between the overall structure what we do dispute strenuously is that the jury should focus on component by component analysis which they are invited to hear in the compounding error is that the district court described a central alabama concept which the district court failed to define so the central of the qualifier doesn't cure the problem if anything it makes it works because what the court s differences are such that it renders the overall structures to stanch really different i don't understand it to say if the central component is different from the other component that's good enough well your honor the jury is invited to start from the gran level of component by component comparison and that was very important in this case because of course the way that the defendants presented the evidence yes the on and teach you that the overall structure is different he didn't even exactly what you asked he didn't allow the jury to be instructed that it was ok to do a component by component analysis and just compare individual components and stop there it is only if it results in a determination factual even if it makes the overall structure different with respect to iran that with your respect your honor at the district court of stop that line twenty two i would agree with you but she did she went on to instruct us that component by component analysis is permissible that's looking from the ground up rather than from the top down so to speak and why that matters your honor is this inserted alarie interact by component was permissible she had only if it's analysis resulted in the overall structure if that part wasn't in  sentence you have a great case but she made it clear to the jury that test even when looking at components is how do they relieve you with regard to the overall structure let me try a simple example and try to get at what i mean we're not disputes suppose as to take judge example suppose we had a means plus function claim for a means of highlighting with transparent ink and suppose the components were a pan a cartridge and the ink well it would be an infringing use to change the ink from water soluble to hoyle based ink but it would not it would not be an infringing use if you change the component from ink altogether to say transparent tape used for highlighting so what i'm not suggesting that we think that components aren't part of the analysis of overall structure but it's a very different thing to ask the jury to go component by component and say aha water based ink is not all basic that's the kind of analysis that i'm invited here and the reason why it was so egregiously prejudicial your honor was don't agree with your characterization of the instruction at all well your honor if i think you're let me turn then to i want to be clear that we did not waive objection to the instruction and i can recite the places in which we didn't but your honor what the district court did is come up with a notion that component by component is the way to decide whether the overall structures are comparable product subject to these supposedly subject to the license because both the two thousand and two license originally from the mpeg l a penpal and the two thousand and eleven license were field of use licenses and not product licenses honor i'm originally reliant two point eight i'm sorry we rely on the original license two thousand to being a field of use license the only reason the district court said it was a product license is the line in section two point eight that  ten three fifty two and that section said that mpeg two compliant technology that also includes and one compliant technology is included it's not excluded from the license and the district court with asli read that as a product license clause it's not a product license was because mpeg two is backward compatible with them had one but what we're objecting to in the in the apple license claim is h there are nine and they're rated sections two point seven is not one of them and the words including but not limited to are far too indefinite under new york law sorry your honor no i'm remember the phrase including but not on the disc and you just answered it ok even if you disagreed two but we would submit is included in the non disclaimer clause but fields we think would put the principle argument need you need go no further than the fact that the side letter fails to disclaim two point seven you're done but your honor with my small remaining time i wonder if i could say briefly why we think the same construction is erroneous and let me simplify this down to really two points there's no controversy here about how plain construction work in a infringement by equivalence of the means press club function play the identified structure let's not incorporate structure from the written description beyond that necessary to perform the claimed function so no one claims functionality and the identified structure the corresponding structures of the function that must not merely enable the structure to operate it must actually perform it the district court committed two kinds of errors in her claim constructions it was she was careful she was meticulous but she absolutely committed those two basic let me give you one example of each claim one of the three seventy seven patent let's just look for the prediction means the prediction means is a prediction means for predicting a next frame signal and when you look this claim one of three seventy seven prediction means it's only motion compensator forty three that is the structure that actually performs the function of predicting an x frames signal that this report erroneous lee included the lead factor multiplier forty five this is just an easy example leap factor multiplier forty five was improperly included it's monthly and functionality the application of the leak factor is a different function performs a different function from predicting the next next frame signal part of the production process is and i mean we're dealing with a leaky prediction it is not your honor with respect and this is a very important point if i could refer you to the preamble the preamble claims  honor i'm talking about the three means clause and we don't you have to win on all three of your proposed clean constructions are only as to each claim only one so as to the three seventy seven claim one any of the three elements if we why does not warrant returning this back to the court because your honor we have we have a general verdict form and we have no basis to know which of the many exes that crossed out a component was the basis for the jury's finding and not infringement and if the jury specific verdict form when you neither asked for one nor objected to the failure to give one we're not we're not complaining about the absence of the specific form we're just relying on eye for eye and that you presume prejudice from a general verdict form and that we can't tell which of the basis for not infringement the jury the answer but i'm going to tell you why they did waive the challenge here if the if a court is to look at pages eight thirty forty one forty two of the record you'll see where judge of that informs the parties that she has found torode solomon two cases by the way that was all they did not mention of in her argument and believes that the language that they now find to be offending language she's drafted to add to the jury instruction and she says i'm going to give this instruction at thirty forty one she then says and then the lord has considered your other objections the ones that have already been lodged and that overrules dubs so obviously it's not an objection to this new instruction so she says the court will printout a final set and then she invites going over to thirty forty two are there any other final comments on the jury instructions met them sprung on everyone for the late game it was it was  solomon in both of those cases just patent he hadn't admitted in the patent or the prosecution history that one of the individual components played a central role in one of the  something like indispensable and then the other patent actually distinguished the camera over prior art versions of the other components the patentee of himself stressed the central of the of this component as part of the means structure how was this jury to figure out what was the central component or a non central component because this instruction given at the end after all the expert testimony couldn't go back and prevent present testimony and centrally or anything like that so how was the jury to figure that out well first of all if that was indeed as in the sullivan said in egregiously prejudicial error than putting aside the objection then there should have been a further request for an instruction about centrally but the simple fact of the matter is the best the way that the experts testified and then toward some of the not the only cases that the word central component in there has been i don't i don't think you saw the word we've cited at page twenty nine of the red brief i can give you particular site here if you'd like that but the main point is that as toro solomon and the cases that we've cited in footnote ten of the read recent page twenty five show this court frequently looks to the absence of a particular individual component in an overall structure to determine whether or not there is a me plus function claim standard for chap for testing a jury instructions correctness which is the very early and adequately cover the issues presented in the state the law without being misleading the instruction is perfectly appropriate it always told the jury to keep the eye on the ball of overall structure it always said judge moore your question to my friend here made that absolutely clear you didn't agree with her perception of the instruction the jury instruction also invites the jurors through look at the the components in the structure can be considered if the differences are such that it renders the overall structure in the product substantially different from the overall structure i have been identified and then she says in particular where the difference and or missing this court's precedents because every structure is every believer all structure is made up of individual components even the sullivans hypothetical example of the of the highlighting pet she broke down and individual defense very quickly the it's important to understand that in the skin the two thousand two license agreement there was a paragraph six point one in the paragraph six point one said that you may bring new apples you may re the integrated whole documents of the two thousand and eleven license agreement along with the two thousand and nine form license but if you look at that where as flaws that is that is showing the places where the parties disagree about what terms were wealthy rates were not so for example even a provision that was in section three of the agreement which is the royalty rate provision was viewed by apple and to be going too far not being a royalty rate or ter and the just looking at the four corners of the of the documents together it's quite clear that it was outside of the oil the provision which is section three of the of the document and was such a sea ch i think was sold and used the terms slam dunk to describe the difference between the two thousand and nine language of the two thousand and two language but it was such a sea change from the approach that was taken in two thousand and two that it  right but two point seven seems a little closer doesn't assume that the scope of what we're supposed to get wrong versus the definition of the technology and and again judge moore it may very well be that we remember that the term so i think that you lawford of a perfectly plausible understanding of term which is it's because when you offer what it's not you know i know but i did go but it goes further because i think the way to understand it is to go back to six point one of the two thousand to of that should not be you know that that are plausibly changed and if i could just give you a couple of examples of that three point one point seven in the two thousand and nine agreement changes  and provides an alternative oil to computation option section three point five of the two thousand night agreement changes the payment method from check cashiers check or other acceptable means to wire transfer or other acceptable me all the and i think a critical point here is that we put in our red brief on page twenty eight the fact that in p t z and it expert the trial did not introduce any evidence on the function for each of the claims that issue and that any dispute over the structure is frankly moot in a relevant if the functional language had been satisfied and also let me give you one example claim thirty one which is the income of the claim on the seven eight in b t s said the motion  between need a legit errors in coming instructions and the actual judgement of non infringement that was found by the jury here  were filed and that these patents related to specific functions are sorry specific structures for implementing those well known functions but when it came time to claim instruction in p g tried to sure have to do with addiction means stop or not about how many pages this was and that was get to the heart of the argument why should all of these components be considered part of the structure because that is what the inventors disclosed in their  by the inventors or they testified to that a trial told and even pointed to one of the articles that talks about leaky predictions as an alternative to something called perfect predictions but the only disclosure in the patent is this leaky prediction utilizing the fact why not all the circuitry that comes up with the leak number itself with to them probably saying iran technically two things could not understand my question yes i did ok one thing we tried to get that included judge have disagreed with us but secondly the quantizer forty if all of those various structures that come out of g p s thirty eight and circle around and come back up that subtract the thirty six if all of those working together that do the prediction and th the pattern describes that entire process starting at the bottom of the figure five lines sixty and going through about the middle of column six line thirty nine and describes how all of those structures are exactly what we asked for it was an example of a doubt for it was what she after hearing hours and hours of testimony came up with is what she thought was the most correct structure for the particular functions here and i know that i'm out of time so i limited the claims to the preferred embodiment when you asked him where do you get leaky prediction he went he took you to the specification to get a column thirteen and that's exactly what we have objective here with respect to the claim one of the three three seventy does not include leaky prediction leaky prediction is covered by other paths and your honor with respect to the leakey prediction is covered by other pens it's not part of the prior art we think when you read the claim limitation on page three seventy seven respectively it is a profit is a prior art in coder patent a patent claim perform the structure that corresponds to the claimed function all we argued is of the claim function must correspond to the structure in the specifications that is necessary to perform an effect but at this prediction means responsive to said encoder output signals forty three is not responsive to an encoder output signal by then the signal has been modified substantially and is no longer encoder output signal the only thing with response to do with encoder output signal is number thirty nine in the picture after thirty nine it's no longer an input or output signal so thirty nine not for the prediction means then you're really in trouble you've got an indefinite claim here because well three isn't define the function that is claimed to patent the claim that the prediction analyzer thirty a day alone is a structure that performs the function of producing a motion from the station type signal by all of this is in our previous we've argued that lance what is really at stake here is already going to allow equivalence of in for infringement by equivalence of means plus function claims to be undermined by a claim construction that throws a lot of components into the identified structure that really do not perform the play in function and if you do that that the error was compounded here by a jury instruction that invited the jury there trough a red x through many components that were not