thank you your honor and my pleas the court this case should not have been resolved on the summary judgment in light of errors of the claim construction and evidence from which a reasonable jury could find infringement under a proper claim construction how could a reasonable jury find infringement of the pulse with a limitation well our first proposition your honor is that even under the trout court's construction of that limitation a reasonable jury could find infringement because there are in the queues devices single polls with that represent and uniquely represent individual joystick positions but it's not there with some of the  claim construction says that the pulse width is assessed in terms of time or distance and these devices assess the pulse when time to time how many clock cycles and they do that your honor by assessing where the post with begins and different different bits within that were yes it's the pumping construction of the district court put on that term says that a pulse with assessed in time or distance provides all the information necessary to determine the joystick position well that's just one word it could be a term for root first that's one letter in a word and less you know the rest of the letters you don't know what the outcome is there's the same sort probably imperfect as well but suppose i had a map of the district of columbia and i said each each rectangles with represents a different city block well that would be accurate your honor even if it is probably tru the winds are all or mostly all the same absolutely and the reason you're they do represent different city blocks is that you have to know where on the map with it is but it still represents the information about where that with  represents the city block and so here you have to know where the pulse starts where it ends but that's entirely consistent with the claim construction because with excessive we don't know anything without knowing what happens before a and the claim construction says everything all has to be disclosed by the poles and sells not what happens before or after right down to lose you know you know your honor and what we're referring here to those positions that are uniquely represented by single pulse so they're we're not talking about situations right now where there are multiple pulses but we so you're not objecting to the claim construction but you are saying that and you're talking only about literal infringement you're not here to the extent it precludes the possibility of multiple pulses and i could certainly address that and we also are in fact raising the equivalency argument and maybe i can briefly address that because don't you have to  before we can reach the question of literal infringement or at least the way the trial judge saw it perhaps resolve the close question well one way or the other the district court as you raised these issues i assume they were think to answer your question directly your honor we are not we don't believe we're challenging playing instruction because we think we're looking at the words of the great instruction he set the width of a pulse as assessed in time or distance provides all the information necessary and we think under that instruction which was which was what he set forth in his amended construction order however to the extent the court views this in an issue that i was just discussing with judge lynn and generator about information about where the  begins and ends as a claim construction issue then so be it we will take it as a claim construction issue but in terms of equivalency your honor we do believe that even if one were to reject this argument that i've just present there is still an issue for the jury an equivalency taking those positions that are uniquely represented by a single pulse the only difference between the patent and as construed by the district court and the ac devices is that the devices include information about where the pulse starts and where it ends as part of their translation of pulse with into joystick position we believe based on expert testimony under the functional a result test that a reasonable jury could find that that single difference was insignificant because the point of this patent was about interfacing the higher voltage joystick with the lower voltage processors which these devices do rather than any specific mechanism for translating pulse with into joystick position but i don't think you've really overlook the details is not enough to say well these two's devices  basically the same thing or an interface between a higher voltage circuit in a lower voltage circuit that claims dig deeper and get into the more specific details so we're still faced with that or you're still faced with the problem of wrestling with this pulse with limitation and it seems to me it's a difficult argument to say that a system where the joystick position is represented by  a pulse is the same and performs the same result in the same way as a system which correlates the joystick position with a binary word consisting of multiple pulses in various posts in the one pauls if there are any number of different binary words that have only one also that also being in either a different position in the word or is could be a pulse of one with two with three stature the same thing because we have each instance pulse with that uniquely represent joystick position as the only difference is that the cube devises include when they transmitted from asia about the  include where it starts and where it ends that's the only difference and that's the difference that we think is insubstantial given that every other element of the claim mr franklin of my misunderstanding that the only thing that really matters in the queues devices is the position of the signal of the clock cycle which is irrelevant if just measuring that signal the position of it at each clock cycle that's what ticks right then and then with this is not what they're measuring they're measuring the position and at that point there's two issues that the only way you can measure with the runner is to you know every device is going to have some sort of a measurement system either in time or distance and if it's in time which is permitted under the claim construction it has and do you have to know you have to have a something running in terms of the time a clock or something else that tells you what where everything is that the claim construction says the w e going to tell you everything and they're not measuring the way they're measuring zisha the point well here we're back i think the other issue in that is whether with clues information about its position digital work but in terms of the clock cycle issue you're right or they've are in fact measuring that's just how they do it they're measuring whether it's up at a clock cycle or down of a clock cycle if it's up it recognizes it is still part of the polls frequency of the clock was changed then you'd have a different with you'd have a different with the information would be the same because in measuring with what do you would you would not you would have a different within clock cycles but that would still translate into a joystick with a joystick position system had to understand where the whip isn't any in any particular device so if they change the clock cycle you may have a different numerical number but it would still conform to a particular with it's weird because it is the length of time that a signal is up and the only way you can measure the length of time a signal is up is by knowing where it is in the clock that's how they do it there's no other way for them to do it that they're not measuring the wit that in time they are with can be measured it can be as he says in his position that's what they're now takes me back again to the basis the factual basis for your position that assuming that we agree with the district court as far as claim construction and literal infringement is concerned read broadly they re broadly on more than just that embodiment of the past and they read more broadly because we were just discussing they require some sort of a representation between pulse with and joystick position is there any conversion from there have to be digital can there is a digital conversion here there's a there's a logic to the pulse is a digital pulse so it is a zero and one digital pulse and then that whole pass to be translated by any joystick system into digital information so inherent in this pattern is in the analog digital conversion the question is what do the claims require that a pulse is technically digital but there is no bits right there in the meantime at the preferred body image i'm talking about your it has to translate pulse within to joystick position joystick position has to be digital disease or digital machines that are receiving the joystick information they don't do it in precisely the same way but we think the plane three broadly enough i think i have a little we discuss leaving out no your honor i don't believe you did but there's always the possibility you'll choose another issue to address it to us we believe that there is a fundamental difference between the binary system the sequence of binary bits that's used in both the nintendo and the microsoft systems from the pulse width measurement system of the of the plaintiffs it is a fundamental difference not just in the way that the data is arranged but in the entire approach i have put up on the enlargements images from page fourteen of our brief those  images showing the we as signals and there are two signals the upper signal is the clock signal in the lower signal is what we call the data line these came from the vendors expert mr mccalla guenter judge reader identified something that i believe is very important that this is a continuous stream so one needs to know not only what's happening in the eight bit word that identifies the joystick position but there's stuff happening before and happening after and if you look at the left image it shows a post that is already high at the time that the eight bit word begins because that's a pulse that's overlapping from a preceding word and the same thing can be afterwards so it's another reason why the pulses themselves can't be looked at in terms of wit to gain any information about joystick position as generator correctly identified it's whether that data line is high or low at the time of the peak clock cycle that tells us whether we have a binary zero or a binary one and then these binary zeros and ones are looked at in sequence so the machine gets the determines at the time that the clock cycle is peaking whether we have a one or is year old records that memory then goes on to the next one and look to see if it's a one or a zero and continues that sequence there is no measurement of with that same statement applies to the microsoft systems as well so we did not see whether they're going to see a justification either for a literal infringement because there is simply no use of the words to determine infringement or pursuant to the doct once because this is so fundamentally different from what is described in th the example we have on the enlargement shows two different pulses that are nearly identical in wits if one were to measure the width of course the systems don't but because their position in the binary franklin is proposing that in this analog to digital conversion that these are straightforward equivalent methods of accomplishing that result well we do not believe that that's correct sequence starts and the encoding that's used within the binary sequence so there are all the bits one of there we have a single polls that has all the information right at least in that instance you would in front know your honor because if all of the bits were one in one of those images up there both yet did that and we would not know whether it was also one before that eight that word started or after that it were started it could be sixteen once in a row the b fifty one zero and it could be eight ones followed by three ones the position of the binary numbers is the one pulse is determining this joystick position and has disclosed all the information needed or that this is well first of all that it be one out of two hundred fifty five positions but would be it level is high or low and just measuring the coincidence of the level at the time of each clock calls that's correct your honor so with the overall combined sequence one way or the other right we do not identify the time that a full starts and then identify the time that the poll sends as a practice to it to determine the duration instead we're just looking somewhere inside that pulls th determine whether the data line is high or low and that tells us whether we have a binary one or zero we're simply not measuring with the claim doesn't require measuring represents the coordinate position it requires to know also achieve well we don't believe that the with those represent according to the station because we gave an example at the end of the with it has all the information in the hypothetical i give you the wip has all the information you know your i don't really want to two hundred fifty five possibilities but in that one the width has all the information no your honor i don't believe that's correct because again if we had  no your honor it would not because you would you need to know where the eight bit were begins and where that eight that word ends because we have this serial data that is being sent and so without knowing where there isn't it doesn't say have to measure the w standing and knew not and in that one position it infringes i would imagine you have to to address for me and i don't think it's hypothetical i think it's correct the question is do you infringe  the damages would probably be zero but we don't ever get to that point because infringement stops the composition at that point like why wouldn't we do the same thing here first of all your honor there is no evidence in this record that there ever is a pulse that is eight this while there simply is not and the district court was correct in its conclusion the finner has not presented evidence of a single polls that would be sufficient to determine joystick position it's just not in this record that it even happens logical reasons why that would be there are physical stops on the joysticks so we're talking about a hypothetical that's not part of this record but even if that were the case again we are not dealing with the circumstances where they the wit is being measured so we're talking about a capability that is not being used now this is not an argument that was identified in the plaintiff's brief but this court has a number of cases i take medical i think is an example where you have to look at what would have to be changed in a machine to use information in a way that it's not use such that this hypothetically change a different machine might infringe you know we don't yet in a minute ago that there's nothing in the record that  addresses whether with his ever measured was a claim doesn't talk about measurement as judge newman just said a moment ago the claim talks about the with the also represents a position so it isn't  that the issue you need to address is whether there's a circumstance where with it represents a position well without being used if the machine has no capability of interpret ing that information then the answer no it does not represent joystick because you're not measuring you're not concerned with with the system is concerned with the identity of the binary works as opposed to the individual with of any particular pulses within those words yes your honor the system is identifying the sequence of bits the binary coding is taking place which means the relative positions of all those bits and where each eight bit word starts and stops it is simply not capable of identifying the width of a number of one to put together but if there is a coincidence of this sequence of bits such that there is in effect one pulse of a given with that it doesn't that doesn't that meet terms of the claim even if that's just one simple incident but no your honor because one there is no record that it actually occurs and two that  joystick position you have to know where that pulses in relation to the the start and the start of a binary word so the pulse width if it were measured would simply not give you all of the information it would not that the courts the district situation actually falls within your hypothetical that evidence the undisputed and if i could be perhaps a problem with the hypothetical a little bit we have to recall that the just reports construction of pulse was a single cycle of variation and i believe your hypothetical doesn't in a row therefore i know that portion of the ten that war is zero one one one in is not using with in any way it says is there a transition yes or no transition yes or no and only when we have the ten of the world are covered in this that recover ward which is what tells the microsoft systems where the joystick was some stick is and vendors expert admitted that you need the whole ten new wound in order to do that on the issue to a system that has pulses was with represent according to a sick position without the shooting the with requirement and so that's a legal determination that takes this completely out of the realm of whether reasonable jury could find that these two systems are has to be a reasonable inference that the jury kmiec and the only way the jury can make a difference would be by disregarding the clear limitations in the court's construction so if the fact that they were able to find a pay an expert to ignore that limited use and say that there isn't bridgeman doesn't automatically get them to a draw near the gatekeeper function that the district court has to say under these facts if injury werder find the inventor's favor it would not be reasonable and so instead of sending it to the jury and then it's not a question of fact you are agreed that if it's a fact question which has only one reasonable interpretation now i think that's right because of the clink instructions a question of law within the court if you apply that second one does represent joystick position that's our position that's our argument and it does because it can be all the information necessary to determine that that's what that's a fourteen now if one does not accept that there is still an issue of equivalence and i understood the last part of the argument to be arguing that this is somehow a fact issue that is so clear that this court has to result i don't think the all element rule applies it's not a question is the council just said is that it doesn't do the cli doesn't perform that function of that particular mutation and natural course precisely a good example because it doesn't supply all the information to make that a fourteen and the only reason you know it's a fourteen is because in the first four clock cycles there was a zero if in any of those clock cycles there been something other than a zero there it would not be a fourth and so fourteen unless we knew the other by elements of this eight bit binary system you need to know where it's where the pulse starts and where it ends that's all you need to know to know that that's a fourteen well that's going through because you need to know also before it starts there are all zeros because in the in the depiction to the left on that chart you have the same pulse rate on the right but it's not a binary number smart fourteen it's one nineteen why because that same three bit binary pulse is preceded by another three bit and that's two pulses that that would be two pulses and then i'm not arguing right now although we do have the argument in our brief about even under two pulse situations we believe that they could be construed that way but looking at the at just that one pulse that's a single pulse and however that pulse is measured by determine where it starts to wear that uniquely signify the joystick position but at a minimum there is an issue here that is not one that can be resolved by the court that is for the jury to result the other point i would make your honor as a trader i don't think your hypothetical is actually i pathetically it's a page thirty two of our brief identify in the nintendo system there are circumstances where they use six just six bits and and that is a situation in which you can have all six bits covered as just one pulse now so that even under that one situation it doesn't french and we argued in our brief quite extensively that this part time infringement or a minute was infringement there's no argument from the other side on that point the last thing i'd just say judge rater i'm trying to answer your question from before about the patent and what i've identified would be at and i i'm not sure exactly what you're getting at but i think it might be on page on