of the highest court of new york and bret jason thompson was a member of the bar and standing in the highest court of texas i have knowledge of their qualifications and satisfied a specimen extraordinary  deals with the main appeal one deals with whether there's substantial evidence supporting the fine even frame for the method claims and the second one is whether the system claims are indefinite as a matter of law i'd those sites to read the language and i submit what the court should find is that there is no step by step analysis which they claim there is between the beginning and end steps in the means for processing they only describe a starting point which is the requisition they describe an end point which is one or more purchase orders but they don't connect the two they don't tell you how you get from the first devil let me correct your ten and i and i think i understand you're saying but i and the issue is whether or not there is an algorithm showing how you get from the starting point to the end point and this is a good example of why they don't satisfy that as to the means for converting the patents only describe  database with data cross referencing from a product to catalog numbers of different vendors but the pat doesn't tell you doesn't provide an algorithm or a step by step process for how the data is used to convert one item to limitations that are problems that never really pointed out this particular page your honor i submit there is no waiver problem here with due deference to your point it's a summary judgment motion  we in the summary judgment motion we not only describe the means for processing but we just cried we included in that motion the other means elements of every claim  we mentioned that in the footnote but we also your honor in the free briefing in the in the in the pre birth briefing the fifty eight briefing of the plus it mentioned  both issues the issues as to the means for processing and the means for converting showing that they recognize that we did we mention your name nobody it shows that they recognized that that was an issue and the only place where we raced it was in our summary judgment motion and the judge made it clear that he accepted the fact that there didn't have to be any jammo arguments even though we raised them in jail no arguments and he said there has been a summary judgment motion and lawson is relying on the seventy judgment motion it was mention all through the cases and there is a decision of this court making it clear that  court and the other side is aware of the issues that are being raised it was a decision by you judge dyke in a case i argued for the life of me i can remember it involved  that cause and i would suggest that merely because it is in of but note does not mean there's a waiver particularly whereas here is a plus recognize that both issues were in play in his fifty eight papers and it's clear from the post fifty b motions that that issue was in place we need to i mean if you don't need to win to be one of them it's right there both both of those limitations are in the  processing we don't need to prevail on the means for converting and the means for converting was the one in the footnote so that if that is true or terms of joint infringement but not to the infringement issue now because i've got players and one piece of that is less if we assume that the punch out involves third party tenders what limitations are not customer is a performing all the steps then you don't need to get to the well you do need to get to the steps because then the question is whether lossing induces t construction of that term there was no instruction it's your order be frank with you i don't remember whether there was an instruction or not or that issue because the customer because the third party vendor is the only one who knows whether or not there is inventory and w customer can make an inquiry it cannot determine that in fact there is in the tory there or not there it requires the vendor to participate and to problem we also point out that there's no converting step that all the converters data is supported according to leaves us only by capability and capability is not a optional it's an optional measure your honor and i capability it requires the use of a certain code and all of these tests are already that that was not used the only evidence is all that it was not used now there is no evidence that it was used by anybody and their only argument is that this is capability of of using are you suggesting my time's up again by using a d i y then you initiate a request from the last system that communication protocol issues a purchase order response and what you'll get the information back from the vendor to say well the items out of stock or need to be back order or something like that so the user using the system has made a query because it's to the desires to determine if the item internal fissures in which case figure three shows that is routed back to the host computer for processing if it is a total of five inches a third party vendor you'll see that it is the structure is where you're in you're in a computer implemented system when you use coding the coding permits you to separate there is out and process them and in a different fashion fluting when using a third party vendors that i think shows if a sufficient structure that would perform that function on and of course it goes to a person of ordinary skill in the art and described that's why i think the program has cried to the extent it says we're going to assign coding and then the code can be used to break up the separate line items in the rectification and process them to the appropriate please the court discourse exclusion of the plus of damages expert dr mayhem was improper because dr mangum disqualification when challenged he used the hypothetical negotiation and he's the georgia pacific factors to estimate a excluded even if there are additional facet of damages expert could have concluded that could have considered so long as the expert considered sufficient facts and data such that the opinion was relevant and reliable it should be admitted and should not be excluded here we submitted to dr making considered the most reliable evidence in the records license agreements to the patents and to there is no question about whether that technology is comparable then went on analyze each of the georgia pacific factors and determine what an appropriate role to rate was now the certain settlement agreements that he did not project the royalty basis of those agreements in a way that that stuff he agreed with those were criticisms that go to the way not to the admissibility of the expert's opinion and first and at that point we were considering all the evidence that was in the record that had not been excluded under the ruling excluding our expert and we determined that that evidence would be sufficient to support an award and we intended to present that evidence to the jury this was timely disclosed evidence of th trial it was submitted in january eleventh i believe the trial was ongoing at that point now the reason we didn't do it but that offer of proof together at the time that this motion was presented to preclude damages altogether was because as i said it said he didn't have to do that express who said he wasn't looking for that position but he was looking for some explanation as to why he would increase the lower or lower range of one hundred percent of the damages from ten million dollars to twenty million dollars there was that the it is the issue here was not involving knife or i i think judge payne went through a whole host of issues which correctly induced him to find a methodology was that he acted as a gatekeeper terms of whether the disc whether they act appropriately preserved the issue or whether the district court really said no you have preserved it is soft there are rights issues very simply this the judge said the value of the cross license to read them as you considered all the factors to determine that appropriate rate would be in the range of five percent to six percent up second all of the criticisms that dr mangum that that the court issued with carefully consider each of the three agreements and explain that there was insufficient revenue and information in the record to calculate a loyalty rate for those three agreements that was the reason he didn't use not because they were lower on something t that decision would have collateral estoppel effect in this case so we would be delighted if that case were expediting is really a question for m addition there are other appeals in the pipeline with respect to certain crimes that are still on dealing with p t o and we would like to resolve those i also think without trying to get into the merits of it we degrade very strong arguments on reversal on that and i think we would not like to hold this case are in that sense because we do have proceedings that are still going on back at the district court