morning ma'am please the court there were several issues regarding delivery of the two patent duration our brief for this morning's argument i like to focus on the issues of the libby on the one for patent the gateway patent and this is because i believe that is the gateway product on the minesweeper that was in use the technology other than the fact it was a gateway product that they tried combined that with a client side and to virus programs show obvious the going back to the   line nineteen and it goes down to the end of two three nine seventy s or twice a minute during that testimony that in fact there was not a gateway sitting between the client and the executable coming into the meaning and then that ordinary meaning was used throughout the entire case from the martin proceeding always through the trial and it only came up for the very first time in the post child breaks and this new claim destruction of him regarding this gateway turn that some way the gateway was not something that the between the client and the executable but in fact and that the gateway could be something that after the fact which doesn't make sense at all and that the fact matter is the in this product with the heuristic scanning program as well as two different programs here they use a combination of the two because a press release they came up for minesweeper so they had a interface they could work with a bunch of antivirus programs in other words you to jury's well that with respect to the thunder by there was uncontested evidence that the thunder by product cannot run on windows n t system operates system and the my super runs on a window into the heuristic program  suggest that your expert testimony should be discounted including during cross examination when the acknowledge the never even seen was it provided with the minesweeper so assuming that the jet that the jury program with on the client side with a email scanner on the gateway that's not sufficient evidence we have a patent has a gateway technology to say that somehow you would take a antivirus program from the  couldn't test the minesweeper but we know the minesweeper based on the product details runs that want to windows n t operating system so we took the thunder by purist expander and apply that to windows n t operating system and just didn't work it was  e so that should have been credit wasn't present there are other issues as well for example thunder by doesn't make any mention in the district court knowledge of this of scanning the job description or the visual basic scripts now these are dependant times we have there's a press release that was put out for the minesweeper that said that there was a there is an interactive they could interact with the different antivirus programs it never talked about they could interact with the nearest expanders just  think if you look at page three and four they reply brief you really see what the issue is what they're trying to do here what they've put they've done and i think you heard during arguments was to go through and say we have a bunch of unresolved claims instruction issues these are things that the district court should have decided and didn't but that's not what happened at all what happened is we had a marking here and there were plain constructions presented and the district court made rulings on all of the plane the charges are presented by the parties in fact i think  why a certain element was not present in the prior so what we're doing here what finch is trying to do is take what are factual issues the application of the of in this case the prior are to be construed claims and say well i disagree and my expert said this wasn't there therefore it was a claim construction a charade and that's not right at all we don't even need to get into whether there's a waiver issue and who stipulated to why and who proposed certain instructions because if we look at some of the court's recent cases on exactly this issue the risin versus cox communication case the function media versus google case that's exactly what we have here we have a situation where parties coming in after the fact didn't present any claim construction issues so the district court didn't say well the gateway it's got to be this particular type of computer a database have to be this particular kind of thing it can't be a flat file stores a number of pieces and information what their expert did it perfectly happy with the claim instruction in fact most of these were presented to the extent that work instructions were proposed by finch and and then the jury disagreed with the with those and now they want to come in and say you should look at this to know you should determine as a matter of law that the claim should have been construed as well we can't try cases like that i mean you come in on appeal and everything can be a question of law let's just come in and look at it again and they will did i disagree if i was in the district court and if they would have raised this to me would i have done it differently so that i believe this problematic of this entire appeal because not what we get to is what we're really should be talking about is there substantial evidence it's a vision evidence by which a reasonable jury could have found clear and convincing evidence and there absolutely it is so how can we reconcile the verdict of not infringe products that that did that the evidence was presented and provided a source code was presented that they did certain things and so the there on the infringement right what he said is we've always i believe that wasn't closing argument and i believe what was said was that we've always we've always done this i think where i might i'm paraphrasing a little bit but that i believe is what your honor sucking up but the but the issue is what fijians trying to do here is to say well wait a minute we're relieved of our burden of proving infringement because you have said you always practice these things now what is presented evidence through expert testimony through testimony of factual witnesses through source code of what their earlier products did the prior products how those things function the jury credit to those witnesses the jury believe that general form part of at least i would call a general form heard it did not go through and and have issue by issue so for example in the validity of peace with the prior art it was a general statement are the claims anticipated would  allegation totally different products function and completely different manner in fact not even the assertive claims overlap completely with respect to those products so that particular issue is only with respect to this office products there's not even a opportunity present that what they where the district court cut him off is that he was going into testimony just to offer an opinion that was found nowhere in the reports and had not been offered in any time  looking at machine co assembly couple actually creating the assembly code from the machine code or processes called disassembling is better than looking at source code that was what he was trying to do was to introduce that in the guise of rebuttal testimony didn't credit or discredit them what the objection was and what the judge was incensed about on the with respect to the redirect testimony was the the expert now contrary to what every expert in the case had testified to was that looking at the binary and doing this process of disassembly is a better practice is a better way to determine what the code does that the judge said that's just there to confuse the jury this is a new concept this is contrary to what everybody has there here right before the cases get going to go to the jury on rebuttal when the defendants don't have the opportunity to put up additional witnesses because remember this is you know with the arteta stuff basically at this point in time it's just there to confuse the jury it's an attempt to completely confuse the jury in the idea that well wait a minute what this guy did was better now that's what i'm hearing and i didn't hear these other experts of course you couldn't hear the other expert if the jury without any from but we still in order to get to the level of a new trial we have to say the visit a vacuum because there's always going to be issues that a district court doesn't make the determination that something is going to be up for all three had determination more likely to confuse the jurors and it isn't the standard that every single one of those is a situation where well if i think the district court got it wrong then i'm going to  to reverse and have a new trial so let's hear from any significant in terms of how things went down this was their principal witness right and he had no access to the source so everything he said was based on the machine and that was substantial portion of their case well according to everything prior next case everything that prior to back time in the case everything that he had was based upon operative running the machine code this idea that somehow he  which is a very complex process and frankly doesn't work very well that just came up out of the blue on the rebuttal so the they the answer is that they did have that opportunity what they testified to in this is what the real focus of the case is what are these products doing what is the operation of the source code was there and did and the it in certain isolated instances where the experts looked at that to offer the test me that i went to the source code to confirm exactly what's going on under the sheets so to speak but that the real primary focus of the evidence in that particular case was this is how the products operate in fact with respect to the thunder buy in the minesweeper programs nobody had source code so there wasn't any test work when we're talking about source code we're really talking about so we'd better check and we're talking about map ninety five we're not talking about the the evidence or lack thereof of whether sweetener check has this date with attention and i agree with my co counsel that that any suggestion that it is that this is a claim construction issue is one that should have been raised the trial was not there was no objection to anyone's testimony about whether or not we've got a check constituted had the gateway limitation but as an additional cite evidence dr hurst who was the founder of the company and wrote the original swede product so the software was asked directly what is the function of sweeping the system and i'm quoting from j eight zero nine eight at page two three three five answers suite x is a sort of gatekeeper because it allows the inner check client to block any requests to execute it execute infected programs or use infected disks mr twain's testified similarly in his direct examination and confirmed on his cross and in the demonstration that we show the jury and i remember there was a large demonstration in the trial in the courtroom where my expert mr crowder had the product set up in a traditional gateway configuration with things coming into the s server and then being processed out to interject clients and again no objection he was able to testify that that was in fact in a gateway configuration so the jury heard plenty in plenty and plenty of evidence about sweetener jack serving as a gateway to a client and that that testimony by and large came in without objection and the jury credit very  done it this way but in fact we don't agree that that was an unequivocal admission because in every other respect so folks disputed infringement it was in the pretrial or it was in the jury instructions it was in the verdict that there is not and the district court has has answered that question for us under the abuse of discretion standard by finding that three things basically one the jury was entitled to discredit dr and three that his testimony failed to prove the comparing the taishan of the ninety six to patent particularly because he admitted that you don't we reviewed a very small portion of the relative source code related to that limitation so so the district court has done our job for us here by findings as a matter of fact is that there are areas where the jury could have found on infringement while also finding invalid and th ut me down on my closing arguments well i couldn't bring a as well our expert was ravaged by the fact we did not review source code and you saw that and the demonstrative and during closing arguments and it was absolutely prejudicial  opposing argument as well so the fact matter is that that was a prejudicial air the fact that the verdict of not infringement for so for us was so scalp so i actually said we had not intended for a minute in this case th our products are not covered by their patents they are we did a first that's what they said the jury's verdict of not infringement just goes to the back of our tire case of discredit by that instruction the fact that the jury trying to get  sort did you raise an objection to this before the duis dismiss the the fact that you used the same prior art and in the factories they did have some obvious arguments with respect to anticipation arguments with respect to some of the other they found obviousness when there was no evidence for obviousness that the basis for the new trial or the error of excluding our expert testimony heinous as hard as they did on the source code issue had this profound effect on the entire trial and the jury