explain the court's ruling on direct in french but the district court fundamentally erred in considering the direct inference on the centrally by converting for example representative klein twenty of the five five four patent does contain a number of steps but the predictable of that client says that the claim covers a machine readable medium containing instructions that when executed cause the computer to be implemented certain steps the district court gets summary judgment work or however reason that that one of those steps is that certain features of the system at the time of sale that set couldn't be performed by the court therefore reasoned there is no infringement the problem with that analysis is again it essentially treats that claim as a method  claim is drafted to cover a machine readable medium with certain instructions to do things therefore your honor i think that the at least the abstract answer to your honest question is if we had a for example is if the software is reasonably capable of implementing infringement then that is an infringement and the fact that it could also be pursued certain not infringing have to figure out how to do this either supply this missing step there is nothing there that tells them how to do it well there are there is evidence in the summary judgment record that tells them how to do it yes but maybe not in fantasy sports you had the ability in that software to customize extra points that more than one thousand players in the national football league league my earn in  the operation of that fantasy sports software that's that could be substantial participation by so the first error that we submit that you find in the the district court's analysis of direct infringement and indeed the only basis that the district court gave for because the customer eventually participates in the implementation that that obviates the infringement that results from that sale i b m has advance in the course of briefing this case some additional arguments that they did not make below that we believe those of course are way if the first is that there are no routing instructions as required by the preamble that argument was not made below and the summary judgment evidence shows that the w a f software includes instructions ralph to banks are groups including specific references to the portions of the source code that accomplish that r i b m contenders again that after its submissions on summary judgment below contends for the first time in this appeal that there were no instructions to generate dynamic web pages from separate data sources to the contrary there are specific drawings and i b o those own documents instructing its customers how to use the excuse software to bill pa we could start on appendix thirteen one seventy t in the patent it depicts a customer computer making a request which was routed to a server on the web server where and under what circumstances to route that were qwest to what we see labeled in this drawing as application network and as you can see those plug ins at the web approximately ten by a detailed description of the advantages of the system including many energy requests for dynamic content and doing so from two clusters that consists of three application servers i'm reading now from the upper part of page thirteen one seventy three this document goes on to explain how this system is to be so so what i'm looking at are this web one a web one b you're saying that goes good pages are the deep page servers yes or they're not they're not pages they are servers page is what would be produced by the page server and could be viewed in a web browser the page server is a computer it's a computer that is used as a server it's the request at the customer's computer at the very beginning on the far left goes through to a set of computer web servers the web servers have software that i b m calls the plug on and that plug and it is able to intelligently route that request to the computer or age server that it's most available and is most efficient in responding to the requests if appropriate it seems you are missing the step the patent here start out with the user contacting or going to it a web page the web page once it's it's it's asked by the user for specific content then the day that the web goes into this servers selects one of them the one that's not busy or the one that has them and never a memory and then the they paid server itself goes out and gets content and diplomacy is dynamic pages so the dynamic page i dispatcher to intelligently distribute that request again on the page server compiles the page and in some instances it may be desirable to include dynamic data that page is then routed back to the web server and to you  thanks your honor may please the court john verisign for i b m let me start by saying every claim in this case were pliers at least two things are going to talk about others but at least two one is instructions for reading web pages the alleged identification of instructions is wholly inadequate he's talking about parallel networks experts identification of the structure of the guards at the alleged identification of instructions is wholly inadequate consisting of an entire two hundred plus page spread sheet with nothing more than claimed language and directory locations of source code files so the district court not only we didn't not only way the argument we made as our first are made and the district court ruled on it and said their evidence that particular graph i don't see there were there's a a web page it's contacting a parabola be a page servers in my looking at this correctly and that's what i do see when i look at figure fo transactions that extract in their packages you know companies doing logic on their infrastructure their calling these applications servers page servers the path in this case was about generating web page hundred seventy quote the fact that the accused products may be used to create application servers does not mean the products as sold include application servers that's required right so right here we have two reasons that this should be affirm install on that separate piece of hardware the code and then set it up and configure it in turn it into an application server then you have won then you have to decide as a user that i want to set it you have to get  method claims and the medium claims that absolutely right then the medium has sold doesn't have it and it clearly doesn't have the routing instructions because it takes you know a few further if a customer of west actually deployed the system and tried to deployment of the application servers are created on site by the people installing the system the customer later they're not on the defense these patents have expired correct they have here on earth and there's a second pages the last system is not web page generating software in fact as we stand here today discoveries over expert discoveries over regular records close they have been pointed to not one not one single necessary to get the job done the district court found their proof by their expert dr jones was insufficient to prove that they were ready instructions on the on the distance on an appendix out in the court's opinion that's a finding of fact there's no evidence to the jones admitted they just does not have web page generating instructions on it it can't be done the only way a west system can infringe under their theory is number one you have to set it up in the field you have to deploy we talking about i say use or yeah when we say that there's has to be user participation in order to to make the was system infringing i would i would say yeah and that particular case you probably would need a procedure because you need a infringement are we looking at at that final step by a procedure this is not even dividing the freezer just to be clear they have to they have to purchase third party software this takes three people  and we took the deposition of their expert on those four that he had in his opinion was aware of the materials do you show that they're using this to produce web pages and he said i don't i can't prove that i don't know that they were using these for web pages because they weren't and we asked him where is your limitation by limitation analysis on these four and they made the claim he says i didn't do that so this is all in our brief but as we stand here today nobody has ever used when asked to generate a web page so we don't even need to get to is a divide an infringement or what's the standard what we're asking ourselves here is who's or use this product to build a web page there's no proof right and the records close so what the server as explained in section two point one point one above that's the balloonist part web sphere executes that is a specific reference to the source code sends the request to the selected server a similar statement is made by the same expert on page twelve eight two nine in paragraph two fifty six of his expert report that i respectfully submitted is in the summ us and raises a fact issue about routing that makes summary judgment inappropriate if that's the basis on capability during the course of argument on located capability again but did they did this of wash off or include the instructions to guilty the web page yes it includes instructions i thought your your expert acknowledged that the washer system does not include all the instructions necessary to generate custom with web pages it doesn't include weather forecast it doesn't include the logo of the customer not looking at weather forecasts of what we are but that's that's  where you will be to chase and i guess i should presume that the court has already read all of its own cases where substantial complex effort was required by the customer to implement the machine readable medium that they purchased from the senate but what the customer has to do as long as it doesn't involve rewriting the software is a route there was there was extension customer activity  include destructions of to build customer web pages he says that it doesn't include them all ok thank you thank you thank you