infringer had the requisite knowledge to support a claim of induced infringement as a factual issue focused solely on the subject of beliefs of the defendant the district court committed plain legal error in focusing instead on objective factors in determining as a matter of law that adobe could not have believed that it infringed as a result of an erroneous and later reversed claim construction decision the district court's reasoning was flatly rejected by this court and smith the nephew versus arthur x which held that even a court ruling of no infringement could at most create a factual question not an entitlement to a non knowledge finding as a matter of law well let me just ask you assuming we were hypothetically to agree to everything you've just said where was the factual dispute did you establish i know that district court in its earlier summary judgment decision said there are factual disputes with regard to inducement but that seemed to be on other matters so in the record before the district court was there indeed a factual dispute with regard to intent during this time period what we're talking about in terms of limine we're actually precluded from putting in that evidence based on the district court's ruling but there was evidence in the record it was cited in the summary judgment briefing and some of the evidence came in a trial because of their earlier period but there was evidence that adobe had knowledge of the that it stipulated to infringement so it was aware that its actions and the blog post that it posted would lead to infringement it never changed its activities during the entire course of the litigation there was evidence at trial that none of the senior executives were put on notice of the patent so they would have you had notice of the patterns so there was certainly sufficient evidence on which the jury could have concluded if we were to have been permitted to put on the entirety of the evidence that there was induced infringement during that entire period even as the district court pointed out even if during the period in which the claim construction had gone in their favor at least temporarily you know there was nothing that adobe put into their records show that that  construction decision had any impact on adobe on its belief as to non infringement or its actions with respect to continuing that infringement during the entire period so there is nothing on adobe's side to rebut any of texas tech showing that there was knowledge and intent train that period the district court can i just ask you this question yet again if if assuming that that we were to agree with you that  mr johnson's testimony because the ground for the exclusion was time limitation that's correct the court made it completely clear in its ruling that the exclusion of mr johnson's testimony was the result of the ruling is wrong because it's circumstantial evidence of infringement during the earlier period as well but you are correct that if the lemony ruling is reversed then it should be that mr johnson's evidence should come in just based soley on the changing of the decision can i ask another kind of procedural question on the assumption again that this would go back to the reasons just discussed would a summary judgment option in the eastern district generally under the court's rules it should not be because there is typically only an opportunity for a single summary judgment motion here adobe already moved for summary judgment of no induced infringement and the court denied that finding that factual issues precluded a finding of no induced infringement i think adobe already had that opportunity it presented its case tech sec successfully oppose that and that issue should have been an issue that was presented to the jury but was not because of this later lemony ruling which is really as we highlighted in our brief an improper summary judgment determination on induced infringement rather than address on the ruling on your reference to the bill if i have the same question that judge toronto raised would the district court have discretion to entertain a summary judgment motion on this matter if we were to disagree with the motion in limine eagerly the district court does have discretion to allow additional characterized it as a decision as a matter of law it is a matter you need to patent it is clearly a legal decision that disposed of tech sex induced infringement claims that is a legal conclusion not an evidentiary conclusion making clear error of law is an abuse of discretion and here there is direct federal circuit case on point and this would be a clear air of law that would also amount to an abuse of discretion  doesn't go ahead please ok but the district court said a little more than as a matter of law and i don't know what they want to characterize the three but he i don't know and i don't know if you would accept the fact that this was an alternative basis for his sector from prejudice by disposing of tech sector induced infringement claim altogether i think it's it's clear from the but the language and the impact of the decision that this was a decision as a matter of law and not a four  possibility ground and that isn't a pure question of law but the the other is more over a paragraph at the end and i guess i have understood your position to be that while that kind of thing in general is subject to abuse of discretion review there are at least two errors legal errors in there one is it's not up to the court it's up to tech sector decide what prejudice to live with and the nd is that you can't possibly decide that there is that the issue cannot be fairly tried either with or without this evidence without considering all the other evidence that would bear on the issue and that was not only and that was quite properly not considered in the context of this motion and limited because it wasn't a summary judgment motion that's correct i think that's a fair characterization of the court simply stated and adobe asked for the opportunity to present that evidence if tech sec opened the door not to argument supplemental filing you made because it wasn't seem to me it didn't seem to me terribly clear and your opposite your original opposition to the motion in limine just as it was to put it mildly not clear what exactly ideal b was arguing in its opening motion women i think that's right i think it came from a lack of clarity as to what they're actually speaking so i think the jury i'm sorry i don't know if it's have know of no case where the they found that a record supported infringement award of zero royalty this is certainly not the st case where such a finding would be appropriate the jury appropriately weighed the damages from adobe's adjudged and stipulated infringement and that an amount squarely between the two numbers proposed by the experts that was supported by substantial evidence which we've cited in our brief on our opening brief on pages fifty six through fifty nine itself had stipulated not infringement based on a claim construction so far from abusing its discretion and for this point this independent basis it is an abuse of discretion review to judge ranges question respectfully it did have that choice and refused to make it adobe presented its motion and let me say it said either all in all of the exculpatory evidence as well as the inducement series come in did it say we think it's highly prejudicial but if you you disagree then we still then we will give up the opportunity to put in our evidence of inducement if that evidence is going to come in i didn't see it ever saying that and then in the post oral argument filing it made pretty darn clear if the judge says we are going to let it go be put it's evidence on who's decision is it to say well i'm not going to proceed with this or i'm going to proceed with this in the affirmative is that the district court judge decision or is it sector had that choice so in response to adobe's motion limit it could have said ok you're right let's let it all come in but it didn't it call that actually a false choice and refused to make that decision and so then through multiple rounds of briefing pretty much stuck to its guns to take them is about part of what i guess is is is troubling me is the heading of your motion and eliminate i never suggested that  without this evidence i'm certain never suggested either as a legal and possibility ground it said they should not have an inducement case unless this evidence comes in and that's what they what  you say forced them to say what they would do with the inducement case for this post march th eleven time period if the three documents were going to come in the question if you think if you the judge think that the evidence has to come in if inducement were to go forward then we don't think inducement can go forward that was not one of the specs that this opposition almost exclusively you must keep this evidence out and to be sure they wanted to at the same time have the unfair advantage then of presenting their inducement theory while keeping out that other evidence and so as to which this is not either purely general functional stuff but in fact a combination of techniques that mean the combination is arguably innovative and is limiting in this case does says a multilevel thing but then the body of the claim says in christian and labeling and i thought that in both the declaration is a gentleman's that was attached to the response to the summ judgment motion and throughout the briefing it is always the combination of those things that is being advanced as the purported innovation not just multi level well if you christian all by itself is that you need to give different recipients different keys and what i headache that is and so what we can do that's better is use the combination of encryption and labeling and that gives the document distributor a way to get to essentially broadcast the document in which different readers will have access to different parts of the document i guess your question knowledge is that things like labeling which is could be as simple as knowledge is fucking a top secret label on it or putting a password on it that's all known they don't that's exactly what we have here with one right here we say also lock the front door of the building that's all that's different and i check to get in and then an additional id check based on whether you're going to your office that we all know we have pacifically the district court found that the patents create a solution to a computer centric problem which is not addressed by the prior art and offer a solution to a problem which was multiple users in multiple locations accessing information at different differentiate this from eric sure these claims here are very different from ericsson which was i think judge drano pointed out very high level generic steps st of all related only to access control but again just pure functional language rez whereas here this is a specific technique and specific solution to a computer problem that involves combining things in a new way access control  encryption and nesting or embedding encrypted objects within their encrypted objects that was unconventional and had not been done before and so unlike ericsson which is really just solution driven this is a specific technique  that was unconventional and in fact in adobe's own characterization and prior briefing it called the d com claims a particular as multi level and multistep technique for restricting access on an object by  level of security and it doesn't arise in the computer context what the problem the text we're addressing sorry i thought his his example is designed to have actually quite literally multiple access control on those embedded encrypted objects so the multilevel is two types of security and then combined in an a in a tiered structure and so this is really a new technique that had not been done before but tex i could describe in the background as the problems with single level security rights and this is at the patterns that one column one line fifteen all the way through to sixty one but the problem with a single level of security or a single type of security is the problem with you know distributing just a single type of access control here texaco's combining access control keys labels and encryption with the nesting to create a new type of security that would protect computer data in these distributed systems so it's really different than just having it would be way too general just to say that this is just locking a door and i think one of the analogies adobe used was locking the glove box the car that has nothing to do with encryption that's a single type of key access control without changing the underlying data through an encryption process and without using labels of any kind so that you can track and control any of those embedded nested encrypted objects a i think very different than an overgeneralized locking a car door locking a floor in a building and and what the district court yes i think just trying to hit it correctly and that is the tech sector was never presented with the position of give up your indirect infringement claims if you don't want this evidence to come in and what a e captioned its motion as was you either don't present the evidence or this evidence all comes in and we said well we want to present our we want to present our indirect infringement case we don't think that evidence should come in but we absolutely want to present our indirect infringement case when it became clear at an after the oral argument that the district court had turned that into a summary judgment motion an indirect infringement texaco said with a follow supplemental brief and said we absolutely want her in direct infringement case and if the evidence comes in it comes in and we'll deal with it that's that's the decision the text i could make but we're absolutely not giving up or indirect infringement plays and in the face of the limitation identification or other things in harrison and dropbox and that wasn't enough and tech sector doesn't claim again that putting a label on something or having a password is somehow anything made in fact label here was t id check at the front building as is done in the court to get access into the other floors and then have to further show id are using a key to get in specific areas within it so it's not over generalizing the claim here any more than erickson where it was a computer based system that was designed purportedly to improve access control same in terms of doses and goes back to the knowledge it seems to me here is that  invention here is an encrypted outer object that once you get through that encryption another encrypted object on the inside so you need to have the keys to vote in effect and you can see that your honor at figure three of the real world i think the spec itself in figure three and it's a discussion of what an object is as well as this court discussion of analogies in ericsson put to squarely within the realm of what this court held has long been held in eligible or at least repeatedly and that is controlling access to resources using software this court said is an abstract idea and we think the same reasoning applies here and the claim should be held in eligible just as an