us philips versus net here twenty ten ten forty five and we have three companies and three patents to pellets and mr miller with respect to those two parties phillips's nine five two patent which relates to fragmenting our segmenting of messages and elegies nine nine three patent covering prioritizing data transmissions with respect to philips nine five two patent we submit that the district court findings of nine infringement should be reversed each of the q s products that performs fragmentation includes a company firmware that is used solely to fragment messages the firmware functions to divide the messages into pulp portions and to add the identifying information that's required by claim one of the nine five to pat nectars extensive sections of a notice problem no we don't believe that we do have a notice problem here the court held you did right the court held that there was a notice problem by applying the damages statute section two eighty seven which first does not apply to method claims as quote a claim one is a method cl go to the heart of what's required for contributory and induced infringement for contributory infringement the patent is the only thing that if required with respect to advising the alleging french or by the patent he is to identify for them the patent in this case the patent was identified there were a group of patents and the accused products all products that conformed to the a t o to that eleven standard and in there are already made all products to conform the eight o two do is entirely optional so how could an allegation like that ever amount to knowledge of exactly what's being accused of infringement because there are lots of products that fall within that standard that don't use fragmentation optional i'm complying with the standard i admit that but i don't frankly your honor i respectfully disagree the standard requires that if you fragment you fragment in a specific manner as required by nine points section nine point four of a standard yes there is your it your saying your generalized letter which just pointed to the standard and pointed to products necessarily gave the relevant notice how is that possible when the standard itself does not  with particular problems it is simply for this purpose it is only to provide them with notice knowledge of the pat knowledge is sufficient the requirement the further requirements of contributory infringement knowledge of how the product operates is a separate requirement and our position is that the only thing that's required to open the door in this case for contributory infringement is to provide them with knowledge of the bat and then the remaining requirements need to be established and proving infringement knowing that it was especially adopted and that there substantial no substantial not infringing uses i guess i'm still maybe it's just me today but i'm still not understanding how actually you treat knowledge that the x would constitute for enjoyment as part of his doctrine because you agreed with me at the outset that that is a requirement contributory infringement but are you saying it's not required that the patents he pointed out that fragmented instructions and their instruction manuals on how to fragment how to turn on fragmentation and there is other also evidence that in their customer service because the net gear instructs users to turn on that fragmentation was part of their products wasn't that just for rather small number of products the customer service records cover a relatively large number of products a district court we cited four of those to the district court there is a chart in our brief which get to page thirty two that lists all of the products for which there are customer service records it's a chart  pages thirty one thirty two of our brief you want to touch on the g nine ninety three yes sure there are we believe that there are two claim construction errors with respect to the nine nine three patent both of which require construction we believe that it is a question of law that it's not a question of claim constructions as the claim was applied so there the two claim construction errors are first the addition of primary level of terminal and not of messages the claim does say setting the priority level of a terminal but it doesn't say setting the terminal priority and doesn't limit what information could be used to set the priority level of the terminal so it as matter of fact because suppose that one through five gets assigned parity level five and one through ten gets assigned priority level one where you actually have video bone before boards which would totally mess up the priority that you want us to find to work is that the claim doesn't say which water they have to be transmit only says you have to establish a priority and what we're arguing is that there will be no priority would always be a priority in your mind random would be a part of the universe had exactly the way it works the way it works is that the terminal is assigned a priority based on the priority of the highest queued message the highest priority queue message so if you have two messages one is a voice message it has a high priority that the priority of that message priority of the terminal if there happens to be a lower priority message which is transmitted before the voice message for example because it had been waiting for a long time in the terminal the terminal still uses the priority that it adopted from the highest priority hued message and that is also useful in interpreter in the claim saying that these message priorities become the message the priority of the term and also if even if you use the priority of the highest priority the priority of the message which has the highest priority sitting in the queue that becomes the term the priority guest just makes very understanding are you saying that net here is method of priorities nation is voice video and then the other two things i'll just lump all together can't remember what they are but boys video in and the other two which come after is that their method of prioritization that's their method of setting the those are the types of messages and each of those message types has a prioritization which is then used to set the priority of the turn up after that happens there are other things that affect which messages set first but those are what used to set the priority of the t and there's a second claim construction issue that i'd like to address which relates to these just records finding that once a primary level is set it's permanently that is not in the claim language the claim language  priority level it does not say permanently set it does not say that that has cannot be changed once it sat and in fact because this is a method claim you could add a second step which would be setting the priority level of the terminal again and that's not to none of those are precluded by this the claim language and there's no support for that interpretations the net you're deblocking here you mean blocking messages that are not our priority prior yes it does if they sit in a terminal that has a lower priority at two terminals that are trying to transmit one has a higher priority the other has a lower the product terminal with a higher priority isn't that entitle to transmit first is a lower priority is entitled the transmit so the lower priority terminal is blocked during the time that the term of the higher priority is permitted to transmit we were exactly at the point where with one another in regards to how the court rules on the other two patterns the court should reverse the judgment respect is fidgets you separate patent six forty two patent under correct correct construction of the term synchronously and data received ready period there is at least a genuine issue of material fact for trial i'd like to discuss the court's errors as to both terms synchronously and data received ready period as to synchronously there are three independent reasons to reverse the court erred in considering the term to require that the mobile station power on at the same time that the beacon signal is received that construction's cannot be squared with either the specification or the figures in the patent one about almost  entire i think that once one rejects the construction of at the same time your honor the proper construction of synchronously is in phase with or in sync with just a temporal relationship not one so as to receive the beacon signal and column twenty two in talking about several of the preferred environments of be it not with respect to claims that issue here but nevertheless claims to have a sickness li limitation in them it talks about the be up and then it goes down to d two has the beacon been received and even allows the possibility that no it hasn't been received and cycles back up no and it waits for it to be receiving this definition of synchronization be read with an eye towards the power saving purpose of this technology and it doesn't your idea that there is no in fact temple relationships happens has to happen at some point or doesn't seem to me to be consistent with the overall purpose the path will as long as one has this sleep wake cycle your honor there will be some power savings so as long as you don't have a constant power on there will be power savings to be sure if one wants to have higher power same's one would implement the patent in such a way as to make the time close together but nothing in the patent limit would even if you were to be that there were some time limitation which we don't believe that there is even under such a construction there was a due to a fact for trial because we put in evidence as that would show that it was powering up very close in time and the error as well america think again there are two independent reasons to reverse first the court added a limitation at the summary judgment stage that is inconsistent with the patent specifically it out of the requirement quo that the access point limit transmission of data during a fixed period unless they transmit time extension information and that's a roni is because the data receipt ready create relates to what the mobile station does the not the access point number two a number one number two don't include the time extension a kind of writer opinion as and and also we take because clearly they're intertwined you take into account the time stench and information we don't take issue with her number one and her number two at the marketing that's correct period wasn't constant it went on as long as the data continued to be transmitted and that's why she found on infringement she mentioned the time extension period as well but i think that you're being a little bit unfair to her i think if you look at a fifty of her opinion the sole ground on which she granted summary judgment to next year was she said because quote the evidence made us provided demonstrate that the access points transmit data to mobile stations so long as there is that a church transmit but it did not  access points the base stations limit transmission of data during the fixed period unless they transmit time extension information that interpretation she required to get to the show to  extension so clearly what she's fixated on is the fixed period of time she mentions the time extension which reason additional limitation of the claim anyway so maybe she will not infringing on two independent grounds that she clearly founded on the lack of a fixed period as most of the others don't have that limitation so you put it here has given purpose an effect the way that it would work is that the base station would send time extension information claims to succeed with that i don't disagree that the it's the end less part that is incorrect there's nothing in there that says the base station will see standing information at the end of the data ready received period so and the court did interpret didn't read this limitation into her definition of fixed data ready received period and the reason that is incorrect as your own point about argument is that would exclude limitations claims three and seven which don't require which solve this problem in a different way the base station it transmitted it doesn't say due to receive its data transmit it right and again that would relate to what the base station does what the data ready received three does which is what the court was purporting to interpret in her opinion is what the mobile station does and that's where the most of the products are there's the largest set the defragmentation products those are the ones where they suppose we don't pay attention the defragmentation products but what about the fragmentation ones another tape in your heart used by the software but it's not like an on off switch which could be viewed potentially a separate but it's so integrity it's just like those other parts invite a mix the fragmentation threshold can be set at almost two thousand different values and they'll value guarantees fragmentation it all depends on how the system's actually working so we think when we look at what the component is and we look at the admissions of of the expert mr williams as to what the components of what he looked at he looked at a component that included that fragmentation threshold is not your argument i'm certain you're getting to it if if the threshold set at two thousand is this your argument for why you think there are this is not a material part or there are not emerging substitutes what what exactly is the heart of the legal the heart of the legal argument that you're saying is not the heart of the legal argument is that this component not the product as a whole but this component as substantial not infringing uses because they concede at least most of the time it's not used  them there's nothing separate to sell which is one of the standards at the core issues so that's that's the argument that as as a matter of fact most of the time the product component is used in a not infringing matter therefore for purposes of contributory infringement there is no infringement because that's the end of the story if it's there if there is if you that doesn't make sense i buy an alarm clock ok to alarm clock tells time and the alarm goes off to keep portion of my now m claim is the alarm portion that's what i'm really contributed before their clocks but no one has the pulse or well people only set the buzzer in the morning once a day goes off about fifteen seconds doesn't suddenly make the buzzer on the alarm clock  infringing or non substantial use because it only goes off once a day because the other twenty three point nine hours out of the day it's not buzzing that's the part i'm having trouble and i think it's like that and my analogy would be like an on off switch you turn you turn it works so it's not to the jury the jury the judge found all the con the facts aren't in dispute about how it works but it certainly a question of fact about whether or not it's use under the terms of the amount to a non infringing substitute or not like the vita mix an intent to get back to your question on and on notice an intent with a nine five to the question of course it isn't two eighty seven the question is whether there is intent to infringe under the arrow test for contributory infringement or specific intent under d s u and i think the court the point of the court's opinion was that in the context of this patent pool where the there was no allegation of infringement and they were saying just we have atoms that are essential that  without further specification that's not enough to put netgear in a position where it had intent to infringe or or knowledge of infringement  let me pass on to the three if i if i may and the fundamental issue is whether setting the priority of a terminal includes the message preference system and it's a fairly straightforward issue that this is not setting the priority of a terminal that's what the court found we assert there's an additional ground which was that under her claim construction of setting it was invariable and therefore under oath grounds we ought to prevail and then in addition there is a separate limitation with respect to congestion and that all that that evidence shows is a decrease in throughput it doesn't throw dynamic control of congestion so  specifically found that this language was was different and therefore in their claim differentiation it was more appropriate to say that but as i say that's an alternative argument and she went to the other issue in her opinion saying that even assuming it could change it may change but they just have this message probability and preferences to there's no step where the terminal ever actually adopts any priority over any other term of the terminals are simply irrelevant what about six for two synchronous with a six for two i want to point out something i figure eighteen that actually wasn't in our brief if i meant steps the one indeed two when you when you look at step one you notice it's in a rectangular box and it says i'm sorry which figure you have figure eighteen figure eighteen of the  fully powered on and that the claim construction was at the same time i think this case is very much like the paragon case where the court said real time means something other than instantaneous which i think gets to your question nothing happens instantaneously and real time is real time with and just like simultaneous or at the same time it's within the limits of the system you know your argument would be could occur immediately before but it would have to be of i really mean i'm saying the plaintiffs failed to present any evidence whatsoever on what that meant the claim construction at the same time as the correct claim construction and what's that mean to a person of ordinary skill in the art looking at their products and there was no evidence whatsoever and what that would mean what immediately before would mean so maybe within the limits of the system it takes some short period of time a millisecond there's simply no evidence and was their burden to present evidence in the infringement argument but i don't but you still you still haven't explained to me how it works for example suppose the rule of suppose you had to t understand what we're saying is that it was at the same time that's the correct construction and the construction having some temper relationship where the new construction presented here for the first time being in phase that's not correct so let me so let me  deal with that point by saying at the same time means as close as possible to literally at the very same instant whether it's the railway or the computer now how close does that have to be  it's it's effectively at the same time now if it is the same you're saying at the same time doesn't mean what it literally not i mean i'm saying this is like the synchronisation even under the district court's exact instruction i think there's two reasons first that evidence is actually evidence of tests conducted five days apart if i can use an analogy it doesn't matter you could bring all that up on cross examination that's a fact question to the jury what you're saying is look these tests are done by these are partly piecing together well that's your argument about whether or not this test actually shows what it shows but nonetheless that i'm saying is i'm saying across the dung at different times exactly three hundred six millisecond what they can say often there's no evidence that they're on phase because they don't test the access point sending every three hundred sixty and that's signal being received but you can argue well they could be off base but you didn't that there was this range which you can determine three hundred two three hundred sixty nine to twelve milliseconds that range was critically important in athens that required events to occur at the same time and there was no evidence beyond experts saying that's approximately the same and that's insufficient to get to a jury because without the expert testimony that's specific on why in a power saving patent something approximately that amount of time is sufficient the jury would be left without sufficient evidence to to make a credible determination but that's their burden and that's what the court found if they fail to satisfy that burden by providing the expert testimony that's needed no expert testimony might not be needed in a simple mechanical case but this court's found in more complicated cases where things are outside the province of a jury jury's own common sense or knowledge that such expert testimony is required and that's effect the plaintiffs have not demonstrated an end to the period they should show the beginning but they didn't show the end of the period and that's in the mobile stations and that's why  they failed as a matter of evidence to show that there was a d r t in any device and it's really that you know that's the reasoning their argument as i understood it  the evidence under construction and found that all that they showed was that the access points just keep sending the information and there's no fixed period of time and so since they failed to show that there was the fixed period of time that was their burden i'd like to turn to a couple of issues first on the threshold tool that sets the fragmentation threshold that is very much an on off switch it sets a low and number which is tested against to  met you knew that all of the accused products of the products are accused of fragmenting could perform fragmentation if the threshold the set properly so in particular for the four products where judge crabbe found that there were customer service records that demonstrated that netgear had instructed customers to turn on fragmentation netgear knew that their products were for forming fragmentation therefore they knew that those products were specially designed to infringe they were netgear also as i mentioned earlier instructed their o d m to manufacture products that comply with the standard meaning that if they fragment they fragment in accordance with section nine point four the standards section one point four the standard is laid out as a main heading it's less than a page but it does provide the specific requirements for how fragmenting is done one other point i notice the damages statute requires an allegation of infringement i do not believe that you need to provide an allegation of infringement to provide a company with knowledge of a patent sufficient so that they can be ques of indirect infringement on the claim construction for the nine nine three patent and comparing claim one which calls for said in a dynamic priority group number that is very the word dynamic appears but it is a modifier to a priority group number it does not say it dynamic priority level and i submit that that should not control in any way the construction of setting a priority level in claim twenty five which does not limit the time or the number of times that the priority level can be set thank you propose shifting to a car on state so as to receive a beacon signal that we still believe that's the correct construction although we do think that under any construction there is a dispute factor trial here judge moore if i can try one more time to address your concerns about data received ready  the claim does say that the access point will set time extension information if data is to be transmitted beyond the data received ready period but nothing about it stopping if it doesn't set time extension information and that's what the judge below seem to require us to do we can show if we are allowed a chance and this is another point about our data receive ready pretty claim its seventh circuit law as this court has recogniz bill that nectar never moved for summary judgment making this argument he's not advancing that argument really even here today and when when it party has not had a chance to make a response reversal and remain and for an attempt to allow us to show that is appropriate we can show experience and we can show all i see the argument that this is why i was sensitive to your argument the power was in and so i requested some additional information and when you look on page an opportunity if you heard on the ground before the judge can find info against you on that ground and you had competing summary judgment motions that were simultaneously before the judge and heard together that's all part of the same big package why isn't that sufficient to me notice requirement under if party moves for summary judgment on ground but not ground b then it's erroneous for the court to grant on ground b and that's really what we're relying on here and i do think that is what happened i don't think we had an opportunity to defend against it's one thing to deny our motion for s