of the claimed architecture and the separation of the functionality between the server and the client in the licensing system a trial that they'll be introduced just a single prior art reference it's undisputed and adobe's expert acknowledged at trial that that reference the shell reference zero seven zero patent failed to teach for limitations claim one of the five for one pat we refer to those four limitations as the token authorization limitation the token file limitation the token generation limitation and the client generated permission limitation two of these were discussed in the most conclusory of fashions not in keeping with this core standards for a determination of an obvious thus the remaining two there is no evidence at all in the record for a motive to modify the teachings of shell to meet the claims limitations now the five for one patent disclose its particular process address the teaching away and show that generating a password at a client poses an undue and desirable security risk there that can expose that password to hackers the skansen conclusory testimony of dr wicker the generally offloading processing from the server to the client at some indeterminate point in time is directly contrary to the t v show which actually teaches explicitly putting more power at the server than the client so that the client is incapable of generating a password to ignore these four limitations which form the crux of claim one would violate the case law of this court and would have potentially far reaching implications to the strength of all u s pat i'd like now to turn your honour's to each of the individual limitations starting with a token authorization limitation the token authorization limitation was construed by the court to indicate whether the transaction has been approved and access should be granted and importantly does not simply indicate that access should be granted but also contains a yes no indicator exhibiting either approval or rejection of the transaction the defendants including adobe urged the adoption of this construction at the hearing the parties consented to the court's suggested modification and the court's construction in its own words makes clear that a token does not indicate simply that access should be granted but also contains a guess no indication so looking out the testimony that was provided by dr wicker adobe sole expert first of all and this is true of all before limitations but i'll provide the citations to the record week or at mit's that this was not present in the shell reference specifically verbatim there is no indication yes or no that access is granted so what was this testimony that there would have been a motivation to modify show in this regard i read verbatim ok well basically i think it would have been obvious to create a yes no indication that's it provided no point out that it's not any communication and it can't be a simple affirms it has to be yes no in other words if yes doesn't count that's that's correct your honor so you distinguish between yes and yes now and also distinguishing your honor the teaching of shop yes yes i am you know and also the teaching of shell which is the teaching of shaw was you have a password that's sent from the server to the client and then the client generates this is the the what the teaching a way the client generates another password and compares the two so it's neither a guest nor a no or either it's simply a password generated here a password generated here or do that to match so there are multiple ways that  token if you any sort of communication would be expressed in a binary format but it would not necessarily meet the construction of the fore thank you i was just going to say it at a high level dr keller agreed with their expert on all of these that they were missing from the reference so all of the experts agreed that these witnesses that the second one that i'd like to address is the token file limitation a token that is a file here there was no evidence whatsoever were very in the token file limitation there were there was a dispute in the briefing about whether dr wicker admits this and i will read from the kick the questioning from their own lawyer on direct now in terms of the claim construction for token you understand that requires a file right yes now you're not contending that the shell reference itself disposes a token answer that's correct it does not and professor show himself agreed that the string the password which of course doesn't meet the other requirements of a token anyway as we get into  password is a string that's not a file and dr wicker agreed with this earlier deposition testimony that a string cannot satisfy the file imitation it was a double burden to show that this was obvious and it did not do so at trial the token base for mitchell of the similarly limitation excuse my client generated permission limitation here again dr worker says shall doesn't generate the permission of the client shell does the generation of the server and this is where he has his his teaching or his motivation and earlier years complexity was an issue of servers and there has been an effort over time to try to push out some of that functionality he doesn't specify when he doesn't even specify which functionality there would have been a motivation pushout all the functionality of claim one as it only aspects of it most importantly he doesn't address the security concern of the zero seven zero patent in any way and that's a curative concern is that this is from the language if it was at the client it might be discovered by hackers seeking to breach the system as a consequence it's an undesirable feature and shortcoming that would be eliminated if the programmers program were capable of validating but not generating a password that if we  well it has a separate of it has a distinct approach a totally distinct approach it the approach there is to put the functionality of the server and to encrypt the functionality and store that same password at the client the approach described in the five for one pat terry here that they did it and he said that they did but he also acknowledged that it was an undesirable and shortcoming so of course in order for there to be a teacher in a way there has to be a statement in the record that from that approach to proceed in that direction and there was no acknowledgement of the teaching away nor was there any explanation for why that the approach would have have been taken on the last question if he tested he did your honor and he testified that he would not do it this way where is that doctor still testified i can give you the precise quote it's around a one of five eight five but i am certain that he stated that they did not generate the client as a matter of security so  and he went on to make a further teaching away that that is precisely contrary to dr wicker's testimony namely that and order to prevent the user system from generating the password it should be ensured that the the method according to claim thirteen were inside licensing computer is so much more powerful than a user system that it is practical for said licensing computer but not for users computer to generate a password for a given id whereby said  we heard the first is that the idea of moving the password generation from the server to the client and then using a yes no indication from the server to the client say ok now we've gotten payment for authorization you should go ahead  and generate the password at the client that's one or even just general motivation to do that the second one is which we did hear that much about is that they're somehow inventive to use a file for the transfer of the yes no indication and the third is that it's somehow inventive to use a yes no indication with respect to the motivation to move the permission generation to the client there was stark testimony that goes on at it was not contested by anybody so the motive to move it is clear what we're hearing now more than we heard at the trial is that there is this security concern which was not an argument that they made time  as a teacher in a way to the jury but the first point about that is it doesn't pass the commonsense test which is why i would be transferring a yes no indicator in a file from the server to the client would be anymore  immune from hacking than sending a password if you have a you if you just have a one bit yes no you could send that from one place to the other so there's no security advantage it's just easier to make  the first bit is if it's a one it's a yes and then the rest are dummy bits meaning garbage and if it's a no then there may be some additional information about what the no wise for the rejection but the yes no is just a single bed so the idea that a single bit is inventive that you would say yes or no there's benefit authorization placed at the password just doesn't square with the teachings of k s r about common sense in terms of the shell teaching away which is where i think most of the effort was invested to try to show a legal or in this case driver's co ax that still says an acceptable but undesirable feature is the password generation  and that is clear with the law in fact short of claims the password generation at the clients are saying look it's not great having the client have this control over it but you can do things with encryption and otherwise to protect it and you don't want to do it but if you have to do it you can do it that's the teaching in the prior art of doing something and on there the substantial evidence cast for a jury verdict it would be hardly something to oppose i think obviously it's our burden and the last thing i want to do is share the burden to prove the lydian obviousness and obviously the jury didn't think we get it and judge well can didn't think we did it when she reviewed that but it is telling that there are validity expert they had a dedicated validity expert did not make any of the arguments that you hear he did not argue that schildt teaches the way he did not argue that there would be any reason you would want to move from the server to the client he didn't argue that you care about confidentiality of a password more than you would a single bit none of these arguments were supported at all by their own expert on top of that there was no secondary considerations we went through and provided every secondary consideration in case they made the argument and their expert made none and apparently oral argument doesn't include the one that they think there was an error of the evidentiary decision on that point you know given the testimony of fessor whicker that moving this functionality from the server to the client was well within the ability of the person skilled in the art and that's it a one two one five nine and was neglected by my friend which is people know how to move the password generation from the server to the client through the use of a single bat or even one hundred twenty eight bit package that goes over the line and there was no contest in fact i don't even think their appeal questions whether all of these technologies yes no indicator and then putting in a file that those were known and basic technologies at the time that's not even really i don't think what they're contesting they're saying somehow someone would have constitute substantial evidence i don't need to take your valuable time unless there's is a question i guess that the one lingering issue which they didn't push here but i want to just now is the idea that he said that's what you would use what else would you put it what would you put the bit n and i just really think it's asking too much to suggest that it's an invention to use a file which is one of their independent arguments to carry the yes back they made an argument in their reply that somehow it the yes no indication has to be the file not in the file i didn't hear that now and it never doesn't make any sense as to how we would be the files compared to being in the then and two grounds are moving as you point out we're not moving on all the grounds but i think it's important for me sensitized the panel as to why we took what i agree is an unusual step of challenging an abuse of discretion which doesn't seem to be so on usual well actually that's this is my point actually going the other way which is the essential defense that i mean if you look at the damages opinion here it is an atrocity and you're dragging you let me get to the heart of it which is their defense to this claim this is not just a bad argument i think it's so far beyond that but their argument is everybody's doing it right they cite a p w c study which i had to just i want to read right away or over fifty percent that's an epidemic and the reason why it's not just a bad argument like someone might make you want to claim construction argument where you have to sit through it here and you don't want to sit through it is when you were facing a damage report up exposure and then you have to decide am i going to challenge it or give my going to face a do over during the trial and scramble it and then i know in some courts people a fear that because the damage support gets better because that the proponent then has all of the information from the entire case and up to trial to tailor it and so it inputs in incredible cost in this case i had to take depositions during the trial we had the right to live in a state during the trial to strike reports it's incredibly costly and i think it's very important and i'd ask just a fresh look that would be that that the epidemic of overreaching damages reports coming up to trial is a judgment and frankly the case is rather old so a lot of the emerging law that encourages early want to one resolution and it was well pre adolescence over it so it wasn't like that was going to be tolerated to be honest so we couldn't bring it very early and we had six other patents you know to deal with and so we just had to have to use up we had one twenty five page brief or i think for many parties with different arguments on all these different areas but you know doing it over again i'm sure that would have been different closer consideration i mean give might also the pleadings were closed originally in texas where that the arguments may not have been successful for this space but it's not just this case which we won't gulp and where it impose so much cost in the system where there are the ones that are saying don't blame us everybody's doing it more than fifty percent of the reports are stricken that's their argument that's page fifty two of the reply they're actually making that argument let me say what i think other than violating all these other rules with the most offensive about their expert or just indulge me and i'll sit down their argument is that they save our piracy so they're saying our technology saves on piracy of your software so we want to piece of the action for all the sales you would have made but for the piracy how do they show what our piracy is that we saved from their pac they first start with the baseline of twenty percent without our patents a twenty percent piracy rate in the world on software and they cite studies from two thousand six to twenty ten that says standard rate for software piracy is twenty percent that makes no sense they're saying that their path was infringement two thousand and seven they deposition comment from symantec a different party or you hear from later today and they say this person says semantics experiencing a six to ten piracy say piracy rate so that they will symantec must be using the invention so you show that the time of the six to ten percent was after the twenty percent that was supposedly established before there's still nothing it's completely fine and then they say well since symantec saved fourteen percent or ten percent or whatever it was you did without showing why symantec was in a different field would be the same as adobe all of these assumptions are garbage and you put on top of that the violation the more entire market value and then the most cynical of all is what i call the see saw argument that you see out there and spend a lot of these fifty percent which is well if you're going to make me reduce the base then i'm going to increase the rate so i get the same number explicit of their expert why did you increase the rate well because i lowered the base after this court said can't do that you can't just see so out there and it's not like this is a low end expert that they couldn't find anyone and that they're hard done by th licensing operation if someone who they told the jury wrote the book on oil days so he wrote the book on oil the damages and patent cases and it's a damages report like this and taking depositions made trial and the of dealing with a new report and so he didn't think it was difficult to do that he thought it was a bad idea this this is just one of the four limitations that are missing but he taught a way directly that it was unadvisable to do that because it exposes the system to basically heard counsel for a job e talk about how he thought the first three limitations weren't invented but that's not why we're here today we're here today is to evaluate what the record of trial was and whether there was substantial evidence that there was a motivation to modify their single prior art reference or not and he pointed to no evidence we put every word of their expert in our briefing to avoid the sort of characterization that just occurred and you will see that there is no discussion of motivation in the deuce none today one of the courts and none the