good morning we have four cases for argument this morning all involving the same parties or guards of the same parties as counsel just said the st cases caterpillar on the cross appeal i understand that arguments are going to be divided from the apple e and you'll have to keep track of your own time limits so you don't step on each other's mr barney are you ready to proceed introductory phrase like controller but also the claimed function the question is not whether the claim or cite some structure it's whether the sites so efficient structure to support the claim function here the claims require not just the controller but a controller configured to perform specific tasks like raising the lifting column synchronously there's no dispute that those functions require specialized programing the commission simply did not consider those functions in what about what about the fact that you have step or they argued in your obviousness case that the f o so would know what a controller is it's a well known off the shelf product  and it would not be anything complicated your honor we're accepting for the sake of argument that controller was was a name for a class of structures will accept for the sake of argument work in this position that it's a device that includes a processor that can be programmed to carry out specific functions but that doesn't answer the question of whether it's sufficient structure to perform the claimed functions because th has repeatedly held that for them the computer implemented the invention like this one the structure that performs especially program function is an algorithm not a generic processor now working in the commission argue that this rule only can somehow be sufficient structure to support that same function if the cited in the claim that makes no sense logically and in fact it contradicts the language of the statute section one what do we do with the fact that the a l j made a specific factual finding with respect to what would be understood with respect to the controller when the a l j based on expert testimony said that the proposal would know that it's just  admit on page twenty eight of their brief that once the a l j figured out that controller is the name for a class of structure and i'm quoting them from their brief they say beyond that finding which they call the essential inquiry further application of the warranted and did not take place so they had meant that they didn't go further and concern and look to see whether that structure was sufficient to accomplish the claim functions that's the air your honor referring back to the structure but either way the structure is the same it has to be structured in support their claim on there is no way to read that statutory language as imposing a double standard where the amount of structure necessary to support the claimed function would depend on the superficial happenstance wherein the specification is re cited and if we point out what you're saying what you're saying is that you know all they would need which is just one more diagram with arrows showing let's going to happen well your honor i would point to the apple motorola cases as an example where there was a claim to your wrist dick and the court determined that that was not a means plus function limitation but as part of that analysis it looked at the claim and said there's there is there are things in the claim that explain how that your stick actually works so that's akin to an algorithm but here there's nothing in the claim language that explains how this we point out in our brief that these limitations are the sole purported point of novelty of these claims working doesn't contest of the art five hundred anticipates claim one from which all three of these claims depend and the supreme court long methods and all algorithms and all controllers for regulating lifting columns using leg sensor data while conveniently disclosing no methods no algorithms and no controller that is pure functional claiming and this is the well to argument i heard a tone i'm not sure that was my tone but to the extent i have some time left i'd like to just quickly address obviousness of those same three claims to five and sixteen the commission found that in terms of obviousness all three of those claims rise and fall was claimed to and working does not dispute this we believe the commission's finding that claim to it is not obvious i controller and program it to perform the claimed functions specifically using leg sensor data caterpillar never argued that you would take davis's entire grade and slow control system and drop it into the r expired one hundred which already had a great and slow control system that was a straw man created by work and caterpillars argument was simple and straightforward davis teaches a basic well known type of controller called a  deviation elimination control or and as work of work and expert conceded that this concept is well known and that even a graduate student would be able to implement it in the r s five hundred dollars and so we  commission erred as a matter of law in accepting work and bodily incorporation argument where the entire grade and slow controller in davis had to be reprogrammed and incorporated wholesale into the r x five hundred we never argued that and that's been the law doesn't require and one last point the commission also erred as a matter of law and focusing on whether the modification would disrupt davis principle of operation and i could see concede that page thirty of his brief that that was the main premise of the finding but we believe it's legally incorrect because in our combination davis is a teaching reference only being used to supply a simple and well known teaching and to be clear davis itself is not being modified in our proposed in our proposed combination only the r x five hundred dollars is being modified and therefore the inquiry should be whether that modification disrupts the r x five hundred dollars principle of operation and work and does not dispute that that's an undisputed point it does not mr barney says at least as part of what you just said that it was simply legally erroneous to focus on changing the principle of operation of davis i understand this point and i am going to controller of davis into the archives and that's not the perkins point for his point is that a person school in the art would not there's no reason that a person would take the davis controller and incorporate it into the r s five hundred dollars and the reasons fairly controller and then add it to the our x five hundred which already has a great and slow controller but then we modify the davis controller in that combination to work with a different mechanism but does not control great simply would not make the combination that calico proposes and that's supported by substantial evidence what would mr jeffrey what what do you think is the proper role if an is reference to changing the operation of the device principle component whatever the proper word is well as opposed to if you're starting steps and too many uncertainties and that would be fine but what does that have to do with changing the principle of the art of operation of davis the reason your honor is the phony is that both davis and there are five hundred contain what's known as a great and slow controller and all the parties and met that the greatest slope controllers cannot perform the same functions that are claimed in the five hundred and thirty dollars so it doesn't matter whether or not you change the operation of the davis gre controller or change the operation of the greatest low control that's already found in the r x five hundred dollars they're both a controller that does something quite different than what is found in the claims of the patent and so therefore regardless of whether you m the other that those modifications simply would not make sense they were essentially there would be no reason to take this davis controller and modify it however needed to be modified to meet the claims of the  that you're indefinite or not a space sickly assumes that there was a functional claiming but that's not that's not allowable that's not the way that the claim is written and that's not what they found or the experts agree state so the similarly here the controllers the controller it obviously can be modified but that does not strip it of its structure my time's up ok thank you council let's go back to mr  i'll go ahead and just start with the very last point that my colleague made with the example of the electric drill the problem is and the reason that you have to look at the function is you can have a claim that says an electric drill configured to make a peanut butter and jelly sandwich according to work and the and the commission's logic all they have to prove is that electric drill is a known class of structures and that's the end of the inquiry mr lieberman calls that the essential inquiry it's not the essential angry it's only half of the essential inquiry the rest of the inquiry is is that sufficient structure to actually perform the claims function and you mentioned entity products which is certainly on point i would also point your honour's to a more recent case and what the court held was even if we assume that blodget has some sort of structural connotation to it in the sense that it denotes software firmware circuitry or some combination thereof that's still not enough because it's not it's we never argued that you would take the entire grade and slope system from from davis and drop it into the arik five hundred that would be illogical because the arc five hundred already had a great flow control system that teaching that we took from davis was just that it was a teaching it was a teaching of a specific type of controller called a deviation elimination controller which allows the user to preset a value and then it measures it has a linear sen measurements and it compares those linear sensor measurements with that preset value and moves the legs to eliminate any deltas between the of out between those values that's the only teaching that is being taken from davis it has absolutely nothing to do with gr slow control that was the straw man that workin brought into the case not i that was not caterpillars argument and so that is again the violation of the possibly incorporation doctrine and again you have to remember that work successfully argued and in order to stay of off the indefiniteness argument that a person of ordinary skill in the art would already know how to choose a controller and how to program it specifically using light sensor data to