those grounds first is the court's finding that the defendant software does not satisfy the patient information hierarchy language in the preamble of claim one this wasn't even an issue raised in the defendant's motions for summary judgment of non infringement besides that there are two independent reasons why the court erred in finding that the claim language was not met first the preamble is not limiting in claim one of the patented issue in this case simply put there is no separate step contained within the preamble language that is not set forth in the six limitations that follow the preamble language that must be met in order to demonstrate infringement and there is no the preamble as no other subsumed a requirement to the coins on that basis the preamble is not limiting but even if it were limiting the court did not apply its own claim constructions court held the martin hearing and you construed all the terms that are found in the preamble and for the patient information hierarchy when you put all that together it essentially means that you have the information relating to that patient that consists of categories comprising pieces of patient information and subcategories that comprises data relating to the patent there is ample evidence to support that the defendant software the two software issue in this case satisfy those requirements under the proper construction wh that the preamble is not a limitation catalina marketing in other press and that this court has held that when the claim refers back in the body of the claim and needs the preamble to provide the s c basis for is formatted with the steps the steps essentially defined what is set forth in the preamble so in other words the preamble says this is a method in a computer system for creating a patient information hierarchy and examined the code he found the data structures for making the information categories such as drugs he found the data structures for him putting subcategories under those data structures like dosages and strengths he examined the product manuals and he dependents code and found exactly where and pointed in his report to the places where the categories and subcategories are found in the code when it's run and the court the it in fact during the federal certification testing the user is required to set up the structure essentially populate the parameters with the requirements and the sub categories the result values and demonstrate that this works and in fact the first part of the procedure is the one point zero one i believe through one point one five or one six  requires that the user demonstrate creating the parameters and the sub grammar parameters essential to the framework for then going through the various test procedures the courts problem with that was said well that's kind of done in isolation from the other steps but under cases like ab dick there is no proximity requirement and there is no intervening step exclusion when for demonstrating infringement of method claims if we were number of different things the district court said any one of which would do you want to appeal so what is your argument about how you establish the order of the stuff if it's mandated by a claim language itself the final two steps of this claim referred to game a result parameters result in a how did you demonstrate that the infringing device which is capable of doing all of the same things but  did you demonstrate that there is evidence that the infringing device performs the steps in the identical order because in syria you could easily to see before a right it sort of doesn't matter i can enter in two hundred fifty milligrams before i say it's claims in terms of outcome especially when the linking in step enough but yet it could perform step see before form step it would not infringe your claim that's the problem you have but it would still ultimately be a computer program that operated to the same end i understand it my question to you is what evidence do you have that established because the court was troubled by what he thought was a failure of proof in terms of the infringing device can't simply enter five hundred milligrams until you have the marks of some one parameter established he confirmed that in the code and that's in his expert report the second thing that he did was he looked at the defendant's manuals and showed that the manuals what he did the equivalent was when he went to the test scripts and he said that in section one point six two steps a and b are done by the way the court got that wrong when it failed to recognize that dr cooper actually cited about attorney argument or any type of interpretation of evidence on target about the evidence itself in the record exhibit c to dr cooper's report went through the test script and for a stablished the link to the patients weight which you have previously entered as another parameter for that particular patient and he the only thing he did was for the particular steps that require an operation to happen in response to an instruction from the user he cited a later step one point six four because one point six four is where the test strips says that that  guess the answer your question your honor is that sure somebody could take the software and use it for any odd reason i mean there's nothing that prevents somebody from probably putting in a link or result value before you have something to link but the being in for him is irrelevant right you have to show an act of infringement i agree with all of that and where we showed active infringement was when the defendant demonstrated the use of their software during the test procedure they ran the script in order and they performed the steps in order and dr cooper showed that so yes even if the software were potentially capable those are those agreements all night because i mean the analysis of the district court shows that that there was one step out of order that's correct and they got yes and that's laid out in the district court opinion laid out in the bridge if we happen to agree with that then you're out of luck right if you agree with the district court then i'm going on that particular point on that particular point but the reason why the court got that wrong was because it misunderstood dr cooper's report again what dr cooper did west in order to satisfy the claim limitations in sequential order showing that the computer actually perform an operation he did shows all the data is collected doesn't go prove to me for at least that the data was important in this week or in specific order but during the test procedure it was and again the court misread dr cooper's an cited the procedure that showed that in the previous steps these actions were actually actually took place within the computer and were stored as discrete in the earlier steps demonstrating what i believe is exhausted all method claim that is not in friends and it is our belief both the district court and now there is a lack of evidence upon which a trial issue of fact would exist the helpful for me if you  the first is a record citation a three zero nine eight this is directly from the c c h i t test scripts and it may be three zero nine nine that says  and so my point here is that c c h i t certification can be a pain you think a different order than even dr cooper put in his report there is no evidence of the who what where when and why you tell the proctor in advance mr nivana in his deposition the c e o my client was not asked how did you get certified what were the scripts that you ran who did the certification when was that his  his deposition was a yes second boston are a must for massachusetts and so that's the type of evidence that you would put forth if you were to say that qualified qualifying with a c c h i standard was the equivalent of infringement now you can take that a step further and say is there proof that these test scripts are lined up with the claims i look at the district court's analysis and agree with that completely that there is not a only potential evidence of use was the deposition of my client as it relates to kind of or it's possible paul had their own deposition i will let their counsel address that but that the questions to my client were such as and i'll give the record citations in a moment did you perform testing yes or yes was we perform regression testing but they did not ask how was the testing done who performed the testing when was it to give me the specific instances show me the order in which it was tested and in particular which functionality in the software where we testing because you a product like this has thousands and thousands of features it's impossible without some evidence which feature breached or infringed this message there's no showing of that and that's the type of evidence it would be required to take this case to summary judgment and the fact that your client software is capable find disparate teachings from various portions of a user's manual is not enough and to be clear your software might actually be written in a way such that the system every time it's used does in fact yes but it may well be that the software was written in exactly this order the problem is the burden of proof is on the patentee to show that and they had despite having the code right they had the code yes i having the code nobody actually today i saida thank you mr kelly i'd like you to start by focusing on any issues and i think that mr data covered pretty well the issues he covered are there are additional issues there is nothing in the c c h i t that requires a software maker to give the functionality to use or to create parameters design their own hierarchy judge fitzgerald noted that but beyond that just saying that paul stated  an answer affirmatively at paragraph thirty to thirty two in a public document we do not allow our customers to make parameters we even added an affidavit to our summary judgment we are not afraid of losing our certification because we don't we felt a small practices it would be great liability nightmares for us to allow that kind of capability so we actually affirmatively state and i can stand here before the court until we don't do that functionality because the c c h i want to make three quick points first of all well i said by suppose somebody can operate software in any way i want to be clear that if you try to run the software and do linking before you had a parameter to link in a result value to link it would introduce an error into the software and defendants again you know dr cooper for the exact use did to show that it was performed in the precise order during the c c ip certification i know that the court the district court disagreed with that that resulted from the district court misunderstanding why dr cooper cited one point six four he didn't cite one point six four to show that a parameter was created and a result value was created after linking that would make no sense it would be like saying that you have to measure the distance between points a and b before you know where points a and b are it just can't happen and that's why  one point six four to show that it was created and b was created earlier and stored as discrete data and my final point is that even though dr cooper did not put you know a highlight in his report with the express statement that says in my opinion the steps are performed in order it was implied throughout his report and there is no law that i'm aware of that requires an expert to say in connection with the method claim that steps are