now just before we began mr to help in this truly i mean i don't know if you have any comments on this it seems to the panel i think this is you know there are major major portions of the space which are marked confidentiality attempted to meet confer with all the parties that are involved the confidentiality issues including the third parties that are the chip suppliers and we have reached agreement that we can talk about it a certain level where we i hope you realize that under the circumstances i feel is quite difficult maybe you understand and you had notice of what we can say and what we can say and do is know exactly what it is but i think you should appreciate that a puts the panel in a very curious position to one be hearing about this let's begin at the eleventh hour and two i don't i'm not comfortable but i understand or appreciate exactly what the distinctions are so you may be able to say what you want to say but i think you need to recognize that it may please the court on this feel represents and argue a classic situation where a court of tribunals has confused the addition the inclusion of additional functionality in a comprising client with the issue of not infringement in other words here we have undisputedly comprising clients that identify certain numbers of bets that have to be transmitted to certain number of ways and the question that the tribunals should have looked at is for example are there are sixty basis extract that whether after they're sixty  additional functions here we're talking about the definitions of the plaintiff we agree that is one this is a one or zero your honor and what we're saying is perhaps the best way to explain this is to go to the commission's own  pounces eight three one four and i'm quoting the i can cue values and i was to get technical but those are the those are the values that they use products take from the over the air analog signal in q values and the l t e found the i think you values are represented as symbols that are samples of the node b sing signal which are stored in a buffer the algae found that that's undisputed now if you look at the commission's brief at age eight or nine the commission candidly discusses what those symbols are and i'll just quote selectively but it's on page eight or nine  you can see there the commission is talking about these very symbols in q components they're received over the air and then you see if you look at this is a quote each symbol and thus convey two bits of information that these chips they sample thirty times that of the software hasn't it sample thirty times you get two bits for sample under the commission's own statements for the way that th rate matched a block from a signal received from node b that is what the commission said there wasn't enough evidence on but it's undisputed the undisputed evidence is that you get this analog signal and there's a few signals extracted out which are two bits for each sample and you sample it thirty times is there a difference between extracting estimating or determining what you're doing when you extract in your honor as you're taking in from the data that's in that analog signal and capturing it that's that's what a person of ordinary skill understands in this context of this pattern now what the q systems do correction to the layer on top of what this patent already is which is dealing with error correction and making sure the absolute grant never gets corrupted that's the whole purpose of this patent by the way and what the what these additional functionality does is it layers on top belt and suspenders to try and ensure even further that there is no error in the absolute grant so let me a little of this is obviously very confusing at least to me but it seems to me that what you're saying is a factual about how the system works and i believe your colleagues on the other side and have a different view of the facts of this or so am i right and that this is your hearing into a substantial evidence question about whether the commission properly determine whether the yes you accuse devices to extract rather than to determine there is two issues and unfortunately the way these opinions are written all the idea in the final determination is very hard to ascertain whether there are construing claims or not the commission what happened below your honor if i could go to the commission brief at twenty two so the commission's brief quote to the l g a explained that in order to extract the binary digits from a sample of a received signal a receiver would have to make a final decision about whether it had received a zero or a want that's their admission of what details gave it ok that's legal air there is no limitation in this patent about making a final decision you suggest in fact if you look at the claims here asking though and i go again i may be where i'm not understanding or answer the way i should be even taking that that the pen talks about extracting the air correction if it's a commission very into something i should be talking about that seems to me that they made a factual distinction between how these chips operate and how the patent operates that that's the case and we have to look at whether there's evidence to  it goes into a chip and it comes out in software but that's not looking at what actually happens and i just read to you from their group the undisputed evidence and from the id actual factual findings in the id the extraction and i should note your honour's that there is also an important claim construction here of this very phrase and that claim construction committee as the commission notes in its opinion a ninety six the l j rejected that argument and said that blocking have other bits interspersed between him around or whatever you just have to have a sixty bets that's a correct construction but the application of that was flawed because the l g thought those bits had to be final this as a commission set or as as you know the commission reset now what happens at the your honour's to the positions of both parties below apple's position the low was it doesn't extract sixty bits and extracts many many more extracts the bit plus the additional soffits and so there's more than that and then they carried on with it what i would call a box trying exercise ignoring the actual sixty votes that were extracted and drawing a box around all the soffits together with the extracted  difference between extracting in determining and it seems like you can read it's testimony or process suggesting that there is a difference well what he was saying your honor is  was trying to draw a distinction between the business is extracted from the air and the additional bits the soft bits which he said were determined now with the way the chip works is after you get that data the next thing out of the version can't to clearly you're measuring that the can't you just take the measurement based upon all the other information in the signal estimate itself that rather than extract that particular  part of this case and scratching your head is because of the way the evidence came in in this case and we had no notice this is not even a non infringement very the initial contentions did not identify this the first time it was expert report we have to strike they'll take granted it did the trial your honour's and at the trial before our document even testified i tried to clear up make sure i understood that the rules of the road work and i asked  the court clerk cheney for the international trade commission i think samsung's counsel said it best that we look at the evidence in the record here and scratch our heads and it was samsung's burden to produce an evidentiary record that showed infringement and samsung did not meet that burden and therefore the commission found that there was no violation of section three three seven i'd like to briefly review what that substantial evidence and what the conflicting evidence direct testimony he continued this theory pointing to portions in the source code that counted soft bets as equating to the term bit in the claims that a one zero seven seven to a one zero eight zero five and a one zero eight ten then under cross examination samsung's expert dr man was forced to admit that soft bits are not this under the parties agreed meaning of the claim terms he makes that admission is a one one zero four six a one one zero five three and a one one zero five zero s in fact he goes on to admit that what he previously called a binary digit was in fact a multi variable that was it a one zero a one one zero four nine a one one zero five three then on redirect he comes up with a new theory that in fact it's not the soft that's that are extracted it's the first bit of the multibillion variable that's extracted in cross examination he says that there's no such thing as a line of code that shows the first bit in a soft being extracted and other bits appended to it that a one one three zero one he says that all bits are determined at the same time a one one three zero three so we have testimony from dr min that contradicts itself about what it is whether it's extracted or not samsung's attorneys continue the contradiction first the claim that the extract in bits that read some claim terms are soft that that's a zero five to five three but then they could you just address here your friend's argument though that in order to do all this processing in the first place you have to sample and get the sixty extracted it's certainly there are two places in the commission's brief that address that argument of pages forty seven forty eight of the commission's brief the commission addresses the argument that hey the system that the phone works on the system so it must practice the claims there's substantial evidence in the record that a phone can work  system without practicing the claims that evidence is provided by apple's expert and also conceded to by samsung's expert apple's expert testimony can be found in a one two two seven eight and dr mint concession on that point can be found in a one one zero three one so there's substantial evidence that the system can work without practicing the claim now i'd also like to address the what samsung pointed to in terms of the soffits what is it that actually created another diet that maybe i didn't understand your answer but in answer the question i thought i was asking what is your friend talked about the sampling doing to i think limitation what samsung relied upon was the output of a company and i'm not sure i can name but i can direct your honour's to the place in the brief where we discuss it it's a pages forty three and forty four of the commission three four you'll see some references in the record and dr min admitted that these soft bit that they're relying upon were not extract from the receiving signal but in fact are determined within the q s devices there's also a passage in one of the pretrial submissions from samsung's attorneys that makes a similar point that to a one four zero three t if i may i just would add that the commission certainly agrees with the court's view of this case that this case does not turn on whether the claims allow additional functionality both the a l j and the commission expressly said that the comprising language would allow for additional steps but what the commission found was that there was no proof that those those steps actually occurred dr mann testified that all of the bits in the soffit are determined at the same time you start by saying that the commission against what the i'm i didn't mean to characterize it more strongly than was appropriate thank you this this case does turn on substantial evidence and i hope that i've walked through sufficient evidence for that for the court to find support for the commission's determination this quarter in the spencer in case another i t c case cited in our standard of review section states that even if some of the record evidence would contradict a different conclusion than the one the commission came to this court doesn't really weigh the evidence to come to to its own conclusion not the century what samsung is asking the court to do here the  commission's decision on this infringement point turn heavily on witness credibility that was noted by the alj a zero zero three one five and by the commission and a zero zero two zero nine forty nine six i'd like to turn briefly if i may to the three procedural errors alleged by samsung and it's brief all of them are reviewed for an abuse of discretion standard and under the wind vine case this court is very the apple was obligated provided it's not infringement theory by january twentieth two thousand and twelve and it provided it for the first time on february twenty ninth so it was after it had submitted its non infringement contentions but it was also after the time all the parties had had an opportunity to review the source code and the algae did provide a substantial remedy for apple's late non infringement contention they'll jay struck no scores of paragraphs from apple's  report and refused to let apple's expert testify about that not infringement theory that that substantial relief which i'm sure my colleague will agree was prejudicial to his side of the case is not even mentioned in samsung's brief l j provided a substantial remedy for now samsung seems to believe that it was allowed to put dr min on the stand and say a multibillion variable is a single binary digit and not have that question but under both the administrative procedure act the commission's rules and supreme court precedent cross examination of a witness is a matter of right so once the crimean gets up there and says the soft bit is a bit apple is entitled to test the truthfulness of that statement and in fact on cross examination dr min emitted that it was not a single digit it was a multi variable and it did not equate the term bit as the parties had agreed in the patent in the in the claim construction stage of the proceedings i'd like to leave my colleagues plenty of time to address whatever his points are unless the my name is bill meehan together with the show neil we represent apple and we represented apple well all let me address two points one is the substantial evidence issue which i do think is the core of the issue and i think it will answer judge who's your question about determining and extracting if we start with the first theory and i'm quoting from samsung's pre hearing brief quote was when viewed in isolation each individual zero one in a single soft soft as we're talking about is meaningless that's a three six four eight so coming into the hearing the theory being in the hands of third parties both parties got it very late in the discovery period both parties supplemented that's why the timing worked out the way it did but what happened is this on cross examination he admitted that admitted that wasn't true that they were determined simultaneously and they're determined because you determining these ratios not zero s and one but the sausage and cutting process is more complicated to requires more computing very first question to him on cross was you have no equivalence opinion correct yes so i'm not going to ask you about that and he goes he says yes that was opinion number three and that's where things stood when it went to the commission and the commission decided it as a substantial evidence question in fact was the briefing here is focused on extracting it actually is the claim terms it and rate match block which are the focus of the commission's decision neither of which are contested here this question of what extracting means is a little bit of a red herring in some sense it doesn't matter if it is extracting in the plain meaning extracting by the definition that they now propose testified to directly the opposite and i know that we apologize on the confidentiality we learned of the rule of the road only this morning ourselves but at a one one zero for one t a one one over for two you will see the examination of dr min where we asked about the icing fuse and what happens and there's nothing here about one bit or two bits robust and powerful so it doesn't in some sense it doesn't matter which of the three or four theories that we focus upon dr mann contradict each one of four on cross examination all of them depend upon my amateur pretensions that and rate match block which are not in dispute and all of them are inconsistent with the evidence now and he in fact the second point i think goes to this question of extracting versus determining and let me say these two things the first is this is not a new theory that there was a difference between extract and in the plain meaning and the determination of these complicated ratios and in fact in a four four five eight you will see are preparing free we made this distinction between two but the more important accurately which is that you are determining a ratio based upon a collection of bits that's the key and that's why no one that's why actually we agree with what they said at the out one bit by itself has a meaning you need x number of bits in order to determine the ratio you are determining sixty ratio but those ratios are not this because the or one that's not depended upon how you determine whether extracting is determining if a claim for more extracting if it were determining if it were there said no three page forty one of their break it doesn't matter in terms of health the evidence came and those are rulings committed to the discretion of the elves there actually was not anything that was what you recognize the source code came in late and that was the reason for some of the procedural his opinion he testified inconsistently with that opinion he offers a new opinion and recrossed he testified inconsistent with that that would be enough to be substantial evidence but again there's the intel witnesses and two is the qualcomm checked actually counts thirty symbol pairs correct answer correct and the count sixty different symbols correct that's the qualcomm terminology works this is just one example it's in the document put it in the record that's where the extraction occurs you've heard from the other side about his cross examination but his cross examination was about what comes out of the integrated circuit chip and that saying about it consistencies is about what the soft bit is there was no cross examination about the r n q symbols and whether those are sec sample thirty times and whether or not there are sixty  put him in a buffer and it's undisputed they do it thirty times that's sixty but it's extracted by pointing to the output of the chap and pointing to a legend in consistencies and how the worse off a bit which doesn't  in the claims is characterized that does not raise a substantial issue as to whether or not these i use symbols or sample input into a buffer before the output of the chip that's the position document is had point to me in your very for you to make this argument i don't know off the top of my head your honor but this is this goes together with all of these arguments what we're pointing out your honor is that when the soffit is output and this is and this is what we focused on because it's the focus of their attack when the top is output from that ship the extracted that is represented by the first of the group and that's how you trace it through the rest and what we were pointing out to your honor's is that if you trace the correct bit we know from the claim construction that rate matched luck is not