evidentiary testimony offered up by the chief scientist of citrus albert alexandra as well as its expert kevin defect as of the second issue in validity sixteen i contend that the court's analysis of the quote unquote public use of the c u c me conference system was incorrect while no one will dispute the existence of a conference system known as c you see me prior to the critical day the issue is what was in that conference just prior to the critical date of the patent su invalidity on the basis of anticipation and there's an undisputed evidence of the read before miles reflected what was in the system i decide i believe that there is a significant dispute as to what was in the one of two if you want to weigh in fifty one ten mr cochran was cross examined and he stated he didn't offer the code he didn't read the code he didn't read the code of practice so how can he say that they read me files are accurate it's one you know i can write a document that says lightspeed is possible but that doesn't necessarily mean it's possible there still has to be something you know there has to be a there there but he testified that he worked with the programmers or you he testified that he didn't work with the programmers but he relied on their representation in the end he could not independently verify there were better people to ask for example mr carter was asked who should who would have been the best person to offer testimony as to what was actually in the product and he stated jim dorsey jim dorsey was expert on the issue of invalidity testified that he saw no correlation between the documentation the reading the files and the source code he stated clearly that he reviewed the source code and he did not see any correlation between what was in the  court would look at for example page forty five seventy nine of the rec rd this is volume three your honour's and this is actually page fifty one of mr clause nurse testimony he was questioned starting around line ten  five seventy nine says mr clause you're speaking but that is not the descriptive of the functionality of the software as of that date in other words neither dr jabez nor mr carter have shown any evidence in the source code itself that it contained any so what is your opinion then that the read me files do not accurately describe the functionality of the source code answer there is no evidence correct and then if you turn the page to page forty five eighty of the record mr clause or continued around line now you mr clause are reviewed the source code files correct answer i have questions and you review the read me files correct answer i have so he reviewed the source code and he found no correlation between client ok well i seems to me fair to say that the consequence of all of this is what he's saying is i don't think they prove their case he's not saying i was looking for from you as he's not saying that source  effectively said yes i believe the read me files are correct but i really have no basis for offering that opinion saying this is a basis i work for the program he worked with the programmers but he said he relied on representations of others so the query should have been on for the purpose of what are those others actually say in those others work for example mr dorsey i'm not questioning that he said he was told that but that's hearsay from that can't be used to prove the case if anything mr dorsey should been brought in to testify as to what  the source code do what were you doing on this day mr carver very clearly stated that mr dorsey was the best person to talk to in that regard but his knowledge was based on representations by others and there's no evidence that those representations were true so in that regard the burden belonging to citrix on the issue of invalidity countered with the testimony of mr clawson or who reviewed the report on invalidity coupled with mr carver statements that he didn't really know for sure beyond the statement that he was told by others i believe that creates the serious question of material facts for the purpose of summary judgment has the diff the deference goes to pick him in that regard the court below of the the district court found that there was not infringement contending that dr stevens and the expert upper fix yawn did not prove the presence of various elements and one of those key elements was in the case of the five one five in the three or four patents one or more characteristics of provided conferencing data being based on current capabilities of at least one client with a district court construed characteristics of the pride a conference in data to be size and content the district court also construe client capabilities to be inclusive of bandwidth between a client and server now looking to the operation of the set sync technology which is the quantum folks heart of the sick tricks communication model there is that concept of which represents screen captures over the course of time and it was evident by the testimony of dr stevenson who relied upon both the testimony of dr jim de as well as the deposition of mr alexander rock is if there is a slow connection all that is required is that one or more characteristics of the provided conferencing data be based on the current capabilities now there is the issue of timing of when that current capabilities determined so in the context of the one nine one in the three three one which we sort of refer to as the in conference because those determinations are made during the conference that's a bit of a no brainer your honour's in the sense that sets think is designed to operate in the context of the conference i have but it would be to go back to just ice question  where is there validation is a term i think are used by the parties validation of the client's capabilities in the said take system so that takes place with respect to step things integration with the operating system in the communications back of the computer were steps inc is operating well to be the specific exactly what the sets do that constitutes validating an individual client as opposed to simply pushing the pipes down the line and then the client to pick up this many of them as frequently as they can depend on their capability that doesn't can't count as validation i think so said let me make sure i'm i say that and then i want to make sure i have your answer you aside think is integrated with the operating system in the communication spec which involves the use of the transmit of the transmission control protocol that's not helpful to me ok that's all computer speak ok tell me what data data cannot be sent from one computer to another without integrating the pet operating system now what happens the way steps think integrates with the operating system of a presenter presenting computer which could be you know the conference you're now if that's a very slow network it when it finally received that confirmation of it have to do with the client capability because client capability is inclusive of bandwidth connections so the courts construction as shown on seventeen ninety five confuse it sounds to me as though you're saying that the operating system is going to prevent the next pocket being sent with the but in doing that how is it valid the client capability so the operating system the way it interacts utilizing the transmission control protocol it will not you're correct it will not send the next the poc until it's received that confirmation by relying upon that confirmation which the delay may be related to a very slow network for example of a very fast type you might go by sensing that the way they're checking the point capability it says when it comes back asleep more or less once the confirmation comes back and it through nine included data that data it was representative content and it was representative of size think of a flow over so in other words you've got several different clients out there some of the clients have fastest and some have slow system that  is going to wait in the case of that last slow computer is going to wait until they say we've got an open door we've processed number one and there's going to send that whichever one is at that point in the of the issues as they exist here first of all with regard to the scene you see me system and the finding of them validity in summary judgment by the district court there is no dispute here that the scene you see me system excerpt which are relying for anticipation it seems to me is not exactly clear as to whether the system checked the client capabilities before the beginning of the co seven through thirty eight seventy eight thirty five seven seven through seven eight of the appendix and this cap feature in the server which i don't understand the tap feature and what it is the connected from the server one has to have been connected already and that is what tells us that the connection to the conference server occurs before this validation is checking  as some of these claims require determination of the client capability before it can be it's after connection to the server but before the conference begins that's exactly the scenario right here you're saying then that this material on thirty five seventy six and seventy seven describes a system in which the cap function and disconnection the file of him of the cap process occurs before the beginning of the call but after the connection is that the of client after the connection tools are speeding it again yes yes your honor so that covers all of the planes that covers the claims where you have to validate prior to joining a call and it also covers the feature of validating during the conferencing if you look at that portion of the read me file it's one of them but unfortunately we don't have a hex test for it when we actually do your honor so what we uses what we had here if we had to read the files we had the source code both prior to the critical date that's undisputed we had the testimony of the chair cagr explaining the functionality of the system and then we had d around that right now if we could but he pointed at this precise portion of the appendix that i'm talking to and explain that i may be want but i think that's not in the park to him that we can certainly make that available your honor absolutely absolutely certain make that available absolutely so so in the end of the day what we have is we have to read the files we have the source code we have mr congress testimony mr cagr who works with his hands with this project for now they went after a couple of different things below first of all they talked about the conference server and they said there is not a conference server and the argument that they made was that there was not a conference server because if the claims required what clearly is a browser and there's really no dispute it really was something that was focused on in the brief with regard to being an element or limitation that's missing the crux of the argument appears to be this argument with regard to has no opinion as to whether the reason the files actually correspond to the functionality provided by the source code so his testimony can create a material issue a factual dispute in the end of the day what we have here is we have the reading the files we have the source code we have mr congress testimony we have dr deface testimony where he ties every element and limitation and then we really don't have any specific element or limitation pointed to what they tried to argue that was kind of functionality argument they said this was an evolving project and if you look at the january read me files or if you look at the source code that doesn't tell us the functionality of the system because it was developed but the case law does not require a naval reserve guard to want to to be a public use if you want to move to prove a little bit yes your hon thank you very much i'd like to do that so little regard to infringement the main argument that that we've been discussing here has to do with and i think judge dyke hit this very nicely in his questioning is there anything in the citrus setting system which works with the atomic core software that would show that there is comforting information provided and characteristics of that conference information are based upon at least one user's capabilities that's in every claim of the four patents that were found to be not inferences part of the summary judgment process there has been makes that determination it works with a conference server which by the way the conference server is based on an operating system that is unrelated to the sceptic software i think that's very important it's a decoupled doesn't  does not do that and it does not know that that's the operating system oh i see so you're saying that that is a function that's performed entirely by something other than your provision if you could be apple o s it could be a microsoft o s it is that it's fairly complicated to have your software have to go through different algorithmic processes and figure out the differences between users that was helpful in the in the mid ninety's late ninety's when  what you're saying sounds of which thing is well we assigned the task of validation for lack of a better term to the operating system and therefore our hands are clean but the system as a whole works by and it's a certain essential part of the system as a whole to have this sending of the pox when the doors open which happens to be performed by the operating system but it's part of the entire s well the question in my mind is even if you soon that that is that the operation of the operating system is attributable to you as part of your overall system as that process of waiting through the patents there is no evidence at all of record but we're going to talk about the conferencing system now we're talking about does the conferencing system receive information from the client in other words basically what the conferencing system is looking to do with  know that based upon a characteristic of the client and the bottom line is this wasn't in the expert report of the plaintiff below this was not a theory that a vigorous to pursue disintegrate but they didn't pursue software so that it decoupled from the operating system so that it doesn't even know what the operating system is doing so how can you then take whatever the operating system may know with regard to this pipe span and impute it back to the set seemed to choose products not good so this is assuming that we were to do that is there an additional argument of a will to you that simply detecting when the doors open with respect to se are so judged right then i'd like to hit on a point that you addressed with respect to step seen interacting with the refuse product and that's it interacting with the operating system i don't think it's fair to say they're decouples if you look at the record of forty nine seventy three this is the testimony of the chief scientists of citrix one of the designers of dr alexander and he says i'm forty nine seventy three if you actually look at page two seventy five of dr alexander of transcripts he's talking about the and the d c p socket is provided by the operating system and the a p i the programming interface the operating system provides will allow us to send data and it will also when the operating system is not capable of taking more data you know it will refuse to take  so more data so we would know so i don't think it's fair to characterize the sexy component of go to meeting of the accused products that have no knowledge or to be blind with respect to what's going on with the operating system the end of the day there's multiple references throughout dr alexander of testimony and again looking at the record of forty nine fifty nine forty nine sixty two forty nine seventy three he talks about set sync integrating with the operating system utilizing the a p i utilizing transmission control protocol in the communication talk to transmit the fact the matter is go to meeting in the if use products will not work without that operating system so i mean it's even on the packaging you have to have a basic operating system for the system to work returning to the see you see me issues however again there's no dispute that ac using the conferencing system existed prior to the critical day but again that has to show each and every limitation and again pixy and content that based on the disputes raised by mr mr clause are in his rebuttal and his deposition concerning what was not shown in the source code i see i'm out of time if i may finish my thought your honor it's coupled with the fact that mr carter was not the best person testify on these issues and further in light of the fact that the videos just show videos they don't show the secret sauce going on behind the scene while watching a video you don't see a conference and server providing conferencing data based on a client capability that capability not being necessarily capability of the client for say but based on the court's construction the bandwidth but tween a client and the server so i think it's important to look very closely at the court's instruction