admission of ethan why park is a member of the bar is in good standing with the highest court of california i have knowledge of his credentials and i'm satisfied he possesses the necessary qualifications so even  been my clerk now for close to a year and it's been a complete joy to have him work for me he has a very strong background in the field before this court and he's just been a joy to have in chambers i've never met somebody that will go down every rabbit hole that could possibly be going down the level of depths that that ethan does which is going to make a really valuable contribution to our bar because i have no doubt that when he gives us briefs there will be sorrow and very well thought through so i am happy to request that my colleagues consider folding his admission to our court don't use do we need to deliberate will grant firm this is an appeal from a jury verdict in which the jury entered a verdict of no direct infringement and we submit that on the undisputed evidence no reasonable jury could have reached that verdict if your honour's agree with us on that point we also ask that you enter a judgment as a matter of law finding that apple induced because we believe on the undisputed evidence that apple was shown to have induced infringement by the directive for this mystery did not reach the question of induced infringement time broadcasting is your argument that the district court erred in its construction or that the jury didn't have substantial evidence upon which it could based and i thank you for the letter your honor and i'll go right to that if you like on the real time broadcasting there were three limitations that apple are going to trial that were not met by the directive for just one of which is real time broadcasting that's the only one that the district court reached the district court found that the jury reasonably could have reached that and did not get into the question of whether the other limitations had been met on real broadcasting but that doesn't limit us i mean obviously if i mean one of them hasn't been met or we conclude that there was substantial evidence to support the conclusion and one of them has and that then we would have to affirm correct absolutely correct so i'm real time broadcasting i will make two arguments first it argued that the construction of the court required simultaneously such a nice reception at all of the client devices such as leap and health phones i pads  they argue that simultaneous transmission requires that it be received that them all of them at the same time there was no question here the claim is directed to the upload end of the system and then it goes on to say such that one of your cli devices can download those that stream there is no question and nobody disputes that the transmission the creation of the stream and the upload to the h t t p server is simultaneous that's the whole point of the system that's the point of the invention is to send out one stream and then anybody can download it as they please so they argued and they put up different devices and show that they were all getting them at slightly different times and therefore there was no simultaneous reception that's not part of the claim that's not a basis for finding no infringement the second argument they made was the latency argument and that's the one that the judge adopted and he said well the time from transmission from when you create the stream the live action on the field the baseball game the live action and when the person is actually viewing it on the client device it is from fifteen to thirty seconds with a reasonable jury could have found that that latency as it's called is too long to justify real time broadcasting if you can shoot the character now put aside that there's no real mention of latency in the claim the evidence showed the undisputed evidence showed in this so our reply brief that that delay that fifteen to thirty second delay occurs inside the client devices so what happens is they start downloading the streams i think you read these papers you'll understand the stream is divided into time segments five seconds a slice or ten seconds slice when it gets into the client device it's buffer why do they buffer it why do they store up a number of the of frame sizes before they start showing it so it won't stall they want to make sure they have delay in transmission and so if that evidence is before the jury why doesn't that support the jury's back because back evidence your honor is the evidence the only evidence of this delay that they built into the system don't forget apple builds the devices they don't build the front end system they have nothing to do with that that's implemented by major league baseball or whoever it is showing the light of live event the built in delay is in the devices that's the buffering that i talk about and the only evidence about that delayed was the buffer so that would not have should that have been a base is no reasonable jury could have found that that officiates the real time broadcasting limitation of the cla going to be watching it right well the client is watching it apply a device i refer to that is the client device like your handheld fault or your ip or your computer that's the device that's what it goes to that's what it transmitted so now you're building something else into the claim that you never asked the court to build into th think you are proposing and you claim construction ties today that is not this claim construction and you didn't appeal this claim construction so why if we're talking about the client person rather than the client device is not the fifteen or thirty second latency not real top because again i don't i don't believe that even under the court's claim construction is anything in there that talks about what happens in the client device again the claim simply lets let  it's not real time of i believe that even fifteen to thirty seconds later frankly is real time i don't see how the delay of that short period of time from words and actions happening on how to deal decide that i mean you would agree i think that a ten minute i would probably say is real time because you have to don't forget the plane even if you're watching these things i don't know if you're watching these things but a lot of times you're watching things on your devices and you want to get it quickly enough to beat some tax from some other surveys who signed up saying somebody just scored a grand slam so one minute to me is not particularly close to real time because i'm going to get a text from e s p n that somebody just had a grand slam before i see it on the screen you're right have also bear in mind that the claim specifically says this transmission occurs over a network ok when you go over a network again we don't control the network travel doesn't control the network nobody controls the network there's always going to be some inherent delay in that and the clay th happens inside the play device i don't see how that type of delay of fifteen to thirty seconds is something that would not be viewed as a real time of anybody's recent history factual question don't we have to defer to the juries view them not if you don't agree that fifteen to still real time is not the question the question is is there any reasonable basis upon which the jury could have reached that conclusion and you know i realize this is in the context of screaming but we've got other cases that had to deal with the claimed term real time and in for example if you were technology in lots and lots of cases now maybe not quite as much in broadcasting like this but in this technology you see the use of this term lots and a fifteen second thirty second delay and skype is this enough that makes it completely unusable so that would never be real time in that context but you're saying that the words real time should could become tech specific in a way that in broadcasting could make it real time fifteen or thirty seconds away well i certainly believe that in the case of a baseball game anybody w watching it i think we conclude that fifteen or thirty second delays is still real time but again that's not my main argument i don't think a reasonable jury should have reached that conclusion my main argument remains that i don't believe there's anything in the court's claim construction your honor or and anything in the human perception of time in the claim construction if it isn't referring to the humans viewing of the transmission rather than the client devices receipt of the transmission i think you have to read it in that in the sense of the term broadcasting broadcasting is the transmission again if you read the elements of that claim there's nothing in that claim that gets inside that client device all it simply says is such that they can download the whole claim is directed to the front end of the system getting it up to that p server broadcasting it out to that which is unquestionably simultaneous and then the clients can download it as they see fit and i'm not arguing that the construction was wrong i think the judge was referring there clearly to the real time of the construction really was merely limited to the transmission and not never see then when he had on your way i came on this real time question i don't think he didn't address it at all in his decision i don't know what he was thinking because he didn't address in this decision the issue of what goes on inside the devices at all and whether that's a distinction to be made so i don't know what he was thinking i do agree that his decision suggests that he may have thought otherwise i do not dispute that but i think it's clear from the grounds for support the verdict i'm going to focus on what i would say of the three substantial financial grounds the first one is the one that has been being discussed the real time substantial evidence question that's the one that the judge the trial court discussed in the channel well and then i'm going to talk about how the evidence substantial evidence supports the implied finding that the pre determined data size limitation is likewise not met and one of the substantial evidence that supports employee finding that the uploading sequence is not math so let me get your let's let's do the first one because that's where we kind of see with your friend on the other side i mean his argument is is that what we're talking about here is the transmission of data not necessarily the receipt of it so that if it is transmitted in real time just because the person holding the device doesn't get to see it and tell a delay of fifteen or thirty seconds goes online that that that doesn't change the fact that it's transmitted in real time well that's not what the claim construction says that's not what the arguments were at the claim construction that's not what was argued to the jury and that's not what the evidence was all  they claim construction does a simultaneous transmission of data to one or more clients matching the human perception of time so are we assuming that the clients have to be the person doing the watching while they're watching  with the clients be the client devices i believe the real time broadcasting portion of the limitation requires one to analyze whether or not the transmission is in real time that it's matching the human perception of time a lady got that but the question is is it does the transmission in his argument would be that it is transmitted in real time it's just that your device builds in  dilemma and so that doesn't mean it's not transmitted in real time it just is not viewed in real time well first of all the record evidence is that not on the transmission side that it was transmitted in real time the record evidence is that there was up to a forty two second delay in the only evidence of that that occurred in the quite the fifteen second so there was evidence of substantial mounted to way outside of the client however on the point that your honour's addressing  the issue is whether or not the quiet viewing was in real time and that's what the real time broadcasting limitation requires and that's where the minimal the way that we proposed is the claim from structure in motion stanchfield the way that they propose with the claim construction is measured from and the quarter came up with its own construction using the human perception of time or  construction appropriately focuses on what is the nature of the human viewing of the experience and that's what real time broadcasting that's what the term means do you think that time construction actually us specifications at the core referred to when he was coming up with his construction referred to the transmission throughout the whole system not only from the transmitting computer but from the server to the client devices and obviously what are what how that perception the human perception matched the external event so that there was really no question that the courts claim construction intended to measure of the broadcast by the human perceiving the event that i'm answering your question on a yeah right i guess i am still it still seems to me that if you talk about human perception of time it seems that you're essentially doing away with any concept of late but you're saying that a trial hold parties argue to the jury that some latency was allowed or right in the question was how much is too yes there were true parts of the special occasion that referred to what the client would do in order to speed up the process to show that it would receive the data from the server as fast as it could and that would be a power make mines one through seven and the quote is when the client connection to the server and starts to receive the data stream substantially in real geo because this expressively says when the client receives the data stream substantially in real time but the claim doesn't talk about receipt in real time the claim talks about broadcast in real time so and transmission is the word that's expressly used in ridgewood connection with the real time so why doesn't this actually kind against to deal in that this real time modifier is clearly modifying the receiving of the data and the and uses throughout it transmitted and received in two different things done it yet but i mean because it uses the word transmitted it's got to be like forty times and i don't understand the word transmitted ever to be used as encapsulating receipt and in fact it does use the word receiving the data and talk about receiving the data probably about twenty times are those two distinct concepts as defined by the stat right but the but the claim requires real time broadcast and that need to be measured somehow and i was trying to ensure the court wit with respect to the court asked how does the patent to describe the risk seen as being important and what that pappa specifications referenced that i just mentioned shows is it is talking about altering the path not from the transmitting computer but from the server to the client device so as to allow the client device to receive the data quicker because it's opening up the transmission line and then column ten lines fifty nine through sixty three further preferably the client compares the timestamp the latest dream to a local real time clock and if it determines there is a significant lag in the time code relative to the real time clock opens additional links with service thirty six in order to increase the overall data rate so that has nothing to do with the transmitting computer that has everything to do with the client to violence opening up additional lines from the server which is a separate from the original transmission from from you know cradle to grave in terms of transmission to receive a reasonable construction and otherwise supported by the spec that absolutely you have if you just think about it if it makes sense right i mean if you had under the  of these claim terms where it says real time broadcasting from a transmitting computer to want to work like computers over a network and so there i think the took the words real time are used to reference broadcasting which is then further defined to be transmitting receive server receive right like that's kind of the way this claim expressly calls it out but if the term had simply been real time broadcasting and if broadcasting had been defined as transmission throughout these claims then wouldn't really be fair to import receipt in like if suppose that there was no question that all the transmission occurred at a single moment in time simultaneously and that every client was capable of receiving it simultaneously but you will built a lag in to your receiving devices that were built relevant to the transmission when that be a different case if this claim term was limited to real time transmission from what i do yep sure you could rewrite the claim and not require real time broadcasting measured in the way that that the patent for the patent didn't have any of the other specifications references that made it clear that that's what they were talking about yes i mean you could rewrite the climbing but but that isn't big claim nor the specification nor the claim construction that that  got the lag in and the apple system that you say can be fifteen to thirty thousand seconds and you think that's separate from other leg but the lag that's built into the system where is and so so apple engine blocks people to build systems and their instruction has them to build the late into the system so the record at trial was not fully developed on the apple instructions are is to pick the third slopes back as that it in order to accommodate forestalls co systems trial they were set five seconds so that's where you get the fifteen seconds they pick three slices back so that and then start playing so be sure to have a fifteen second hold  on and so that even if the system goes down you've got fifteen seconds for it to come back up and you will perceive any stall in it on now the record isn't fully as to where the other device not what happens inside remember these sections say look for example that specification eight what's so frustrating if this is exactly our system what they're doing exactly what we do they say here that it collimated says identify what type of begin preferably with minimal lead and then the next five identify what time it start receiving the data in the stream substantially in real time it's the receipt of the data at the client device the other point he pointed to his way to measuring the time stamps users don't measure time stamps i don't measure time stamp when i'm watching my device the client device is what automatically checks the timestamp and if it's not getting receiving the data fast enough it will last for a different bit rate stream and it'll do broadcasting that's just not in the claim it's not in the construction that's why we didn't appeal that construction there's nothing that talks about it the construction talks about the simultaneous transmission to the client it doesn't say the client has to actually do any specific thing once