that relates to a situation in which a product was sold and then end users could or could not put an optional e different types of software on it to perform different functions and is only turned on the fact that they just sell the software in question there was no proof that the end users had to actually take and install that for the optional purpose of taking that manufacturer's equipment and using it for that optional purpose carcases different the connection systems and particularly the flash wave as examples systems that were used by comcast its networks were shown at trial to actually perform the grooming function i didn't read the testimony where i read because one of your experts knew that a particular piece of equipment different pieces the architecture for how comcast was using this thing at sun it networks these flash wave pieces of equipment there are also things called digital cross connect systems and also direct cabl so i don't understand why you would buy this system to begin with this piece of equipment if you will if you're not going to use it in the manner that set forth in the manuals there's it's not sort of an efficient add on functionality that you can sort of actually use or not use based on the trial exhibits that were entered there was there was evidence of how comcast actually used these materials in its network this is at appendix seventy four seventy three seventy five seventy nine the two pieces of evidence one is a deposition exhibit comcast thirty six witness on the the use of this equipment in contrast networks can see the numbers going through i think certainly i'm sorry appendix seven four seven three through seven five one nine is one of the items the other item is appendix seven five two this question that the district court in focusing on actual operation department for the actual requirement of contribute to what is the testimony that the i think it's a cisco system  tory response in the larger material that i cited to comcast identified that this this particular traffic running over this equipment is done at traffic and that this and that this showed a trial that for the various networks these things were happening through direct connections through d c s and something called switching functionality in the flash wave of quitman and for the switching functionality we did identify the program in the manuals the that showed that that the whole purpose of this equipment is to provide that switching functionality as that's the core purpose of it it's not an optional software add on it is the whole reason that the piece of equipment exists if you're buying it and you're using it in your network and it is expected to carry forward the basic core purpose for what you're purchasing and that was mr dr wellner testimony know the piece of equipment which performs that function in the system and that was dr roberts testimony at trial everything for a moment except portland and san francisco and talk is just on those two locations and just on the connection issue which is and that has to do with this as i understand it the cisco one five four five four and the district court granted you know how that piece by saying you didn't show that the systems actually operated in accordance with the claim require number standing a claim construction requiring only that they be configured to do so so why when i don't want you to try to tell me is what is the testimony and configured is different from here's a piece of equipment that if you added new software or reprogrammed could do it it has to actually be more or less subject to the flick of a switch to make it do it even if it's not in fact doing it so what is the evidence for the proposition that configured to do this even if there is no evidence that it's actually doing it the evidence is when we cite it there's a great deal of evidence that pages fifty five and sixty of our opposition of our the exhibit deposition exhibit are very big pieces of material but they say within them they each focused down on each of the regional networks and describe exactly what the the entire thing on both the system side of the network side and what's called the home provider side provider agent eight thirty two patmos phone focused on the homeowner side of that and i believe that the deposition testimony does show facility you identified today are actually operated in real life answer how they're actually operating question gas answer i do not know so but that's not the standard the standard is what how they're configured to operate so that  operate to do it does not support him while you're out of the flash wave devices which were used as example re devices the flash way forty three hundred flash way forty five hundred have sprint has cited essentially to the entire manuals those manuals describe how various cards can be plugged in and not plugged in and how for example grooming can take place at various levels the clip one of the claims here requires grooming that both the s t s one focus for me had and the thing that i'm interested in is portland and services go which was not based on the grooming and drop perplexing it was based on this connection piece of the of the claims requirement and the district court tell me if i'm wrong and in in remember it said the problem there is that there's no evidence that they actually operate to perform this connection which is not required by a configuration construction they don't have to actually operational they have to do is be configured to operate it so the question is was there sufficient  evidence for he jury to find that they are so configured even if they never actually do operate respectfully i don't believe so your honor because what what and you heard this from mr garrett and today what what we'll never testified was i look at the manuals i'm experienced and these optical networks i believe that somebody would configure these flash waves in the cisco devices to operate in a specific way there is  remembering those words and remembering his words that say two or three times they allow this to happen aloud sort of suggests maybe configured and then the other thing is why would somebody have it if they're not using it which is a point about how he thinks they probably are actually using them for that neither one of which is contrary to they are configured but they never prove the first point are they individual facility he had no idea how these operated in real life as i was i just showed it testimony what he basically his basic theory was if you look at these sonic connection systems that would you buy it if you didn't want to have that particular fair enough your honor that's exactly right he focused on the individual flash wave systems put the manuals up and said i look at these manuals and i believe that somebody would configure something in this flash wave to achieve this set that was basically his testimony can i move the ring terminal just for a second your arse lest the issue that i think sprint is still arguing on this appeal even though they say they're not is the single card fieri because the claims require a unique ring terminals and they require you  perform the function functions of add drop muxing group means witching sending and receiving and for example they say in the reply brief that there was testimony from one of the contact chicago employees who did and this is at the reply eighteen and they say there is testimony in the record that these individual cards are capable of grooming and they cite to this testimony  where our witnesses said page four eight three five of the record where comcast witness said that the interface card provides multiplexing and the multiplexing but they lip size the next part of the sentence which  air drop is performed by switch fabric and then the following question the witness says that in fact these cards cannot perform grooming specifically unless they use a switch fabric so the the case really me on whether or not the cards could be unique ring terminals when it's crystal clear from the manuals the doctor will rely on that the switch fabric is mandatory in every you cannot communicate from one o c twelve card to another o c twelve card to communicate traffic across the span's as required by the sonic claims unless you use a switch fabric and it's interest beautiful  fabric is common so what there the fear is changed over and over and over again but it seems to me that the fury today as it stands to spread says to all seeing twelve cards for example in a flash way forty tandem can communicate traffic across of cross the spans but the uniqueness is in the individual cards it's back to the single card theory and the testimony in the manuals  individual car cannot add drop marks cannot croom and most definitely cannot switch because that is what the switch fabric is for so with our position is that they basically reverted to the single card theory and it just doesn't stand up to what the evidence shows about what these devices do so let me turn briefly to switch fabr my understanding my recollection of the district court's opinion is that that perverts everything except portland is in recess is that right portland san francisco and seattle seattle he said it's one thing or the other is yes actively covers that right ye s so for portland incidences go what you were just talking about you haven't yet that there are no that's about the connection system and my understanding of that is that the issue on which that piece turns is whether the systems the element is not required because there is no evidence that they actually operate to do that that seems to me and insufficient reason to conclude that they're not configured to do so so what is now this is going to be a new argument on your part i believe based on my experience about how people use these devices you asked questions completely focused on what they actually do and so he responded to those questions by saying i think they do it wh burden to even show configured to will or can't just say i believe there can figure two i mean these systems can be configured in multitude of ways i mean that's the whole point of these large devices you can have but you can switch for example with the v still i claim seven it says that you had that it has to be able to group specifically at the s t s level which is one measure of sonic traffic and v and the v t level which is yet a smaller unit of sonic traffic there is no evidence from wilner that says i looked at that specific device and in san francisco and determine that it was configured to groom traffic at the v t level i don't know where that is in the wrecker is there is there evidence from the manuals or otherwise that that capability requires some programming anything going the other way and also as opposed to it's there in what we send you out i don't know who makes the most definitely ron i forgive me i don't have the exact page but in the forty three hundred manual for example it discusses a number of different virtual tributary configurations that the owner can don't see anything in the record where they say that device in portland in san francisco was configured to groom traffic at the v t level and specifically point to evidence where that happens because we'll know was not the results of the demonstration that occurred that we used to make this patent application that's point one and point two no three three nine inventor including mr bach testified that the three three nine inventors didn't have some role in developing the provider agent and communication up there is no evidence that the three three nine i'm sorry the kaplan there's two three three nine fits the kaplan inventors didn't have a role in developing the provider agent and the communications hot so it's circular to say that kaplan provides corroboration both of prior invention so that the general picture that  really presented with that i don't remember the question is sort of what is it for the particular evidence is that sprint had this fairly large project the project had different components the fort a three d the a three two teen had this compound and they work together as a unit you couldn't distinguish any of them this piece of it clearly was conceived by somebody because it didn't spring into the kaplan application you know with like monkeys typing on a and referred to in kaplan came from what the group working on that piece of the project that's what they three to invent or say like burn half that's what setter says although he's pretty ambiguous about it because his testimony was that's the group that had that piece of the sprint i am project and there's no reason and we together i think back said i never do anything by myself i'm indistinguishable from my three t inventors were doing the same thing the other point i would make an amount of time i realize is the person who was best situated to determine who invented what was center he testified obvious there i was watching this i wrote the cases and he named a completely different set of inventors on on capital and then on the a three two patent with the exception of bach so red because because they're claiming different things right i mean kaplan does not claim this piece isn't that some actual affirmative evidence that there is somebody missing from the kaplan group responsible for the piece that's not claimed or you would have had to include them in the it happened your honor i don't i don't recall off the top of my attribute back to the people that were named all i'm suggesting is that saturn was sitting there saying this is the group that came up with what's disclosed in caplan and that included the provider agent and the and the communications of i'm way out of about is twenty five twenty one fact that we are focusing on testimony other than the testimony we've talked about there is no testimony that the naming of those people as inventors for the eight thirty two claims which mr sattar was responsible for the prosecution here is in itself evidence of what those four people were were targeted on very briefly with respect to  the portland in san francisco runner to try to you if you had asked about the portland and san francisco evidence if you look at page fifty eight of our opening brief there are specific are some specific figures in the or whatever it is important is that we just go i think he suggested that if you look at that manual you can't tell that the thing that comes out of the box would be configured me to serve this connection function it might require some actual new software some reprogramming it's not just flicking a switch what's what's the evidence on that i  i don't think that that's borne out in the record i don't don't recall that being a contested issue that their expert testified on i do not have a record citation at my fingertips for that but dr wilner relied the fact that this is it doesn't necessarily show that this piece of equipment even if it's manual says you can do it use it to do this that when put in this system it was configured to do that in this particular system it's part of its core functionality whether or not it's not insuring the question i mean you're sorry assuming because you say it's part of its core functionality that when it was put in the system it was automatically configured to do that but and i agree it doesn't have to actually do that it has to be configured to do that but there's a difference between this piece of equipment being capable of doing something in isolation and then be configured to do it when put in the system and what have you pointed to beyond the fact that this is its core functionality dr welner is testimony that in his experience when you look at the f and it's that comcast provided about how these these pieces of equipment were actually being used in his neck in their networks when you see that literature that they produce that shows their lives the core functionality that when he looks at the all of the information that comcast provided in his experience based on his use of the systems and this this is has to be the way that they are being used i don't recall  read the testimony i think you're overstating what he said i don't remember his use of the terminology core functionality and i don't remember his saying that this is necessarily the way it would be you must he said that someone would advise this because it had th actually i'm highly confident that if you're going to buy a certain piece of equipment that it would be unusual highly unusual to not and this is i think the problem to not have it potentially function articulate we don't hear what you're saying what we care is what the witness weird is the witness of the this is core functionality of this equipment is that it's you know that's the only way you would use it is not say it's the only way you can use it he does not there is no explicit testimony that it is impossible that that is possible to use in d c s while disabling that