probably never and never can pull from the gross national product of the united states represented here this morning and that group of cases is two thousand and thirteen ten ninety three ten ninety seven and eleven hundred second group and that will be represented by mr representing the banks led by morgan stanley that's ken ninety two and ninety nine and eleven o three this is of course of morning your honor is dirk thomas on behalf of the real time data and the inventors of the patent and student this case and may have seized the court we have to start out your honour's we have a copy of claim twenty two of the six five one patent that i've given handed out to defendants and i've also handed to the court room deputy this is just an exemplar one of the claims that are only started in this case and i've highlighted the three claim terms here for which we dispute the construction so with your honor's permission  court room seventy and up i think it would help in following my argument if we had this claim you had to be clear this claim is not asserted against all of the defendants but it does include each of the terms that were challenging we have them here  questions realtime challenges the construction of three claim terms in this case for another highlighted in claim twenty two here but in addition to just challenging the construction of those claims terms as the court found them in its mark judgment so if you were to affirm summary judgment on either one of those claims terms you needn't be to the i thank you i sort of thought that but i understand you know where i was going your honor with this is we have challenge the court claim construction as judge force reached in her marksman award but were also challenging the additional claim construction the judge force applied in reaching her summary judgment determinations because there is an additional limitation on each of those claims terms and i will go through and explain exactly we're in reaching for summary judgment conclusions she read in this additional claim limitation in order to avoid what we believe were material disputed facts as presented by our expert and by additional evidence in the record which we could have gotten to trial on with a claim construction as presented in the market or so to start with and looking at claim twenty two  first claim term is data stream now in or more can order the court construe data stream to be a sequence of blocks coming from an xterm will source whose characteristics are not controlled by the  where you don't see those words anywhere in claim twenty two or any of the other asserted claimed as a matter of fact taking claim twenty two by way of example it's an enclosed system and the data stream is a is made up of in coded data packets so the data stream in claim twenty two is a compressed data stream going out from the encoder so to construe data stream there as if it had to have a metro p sleepy the metro p c s litigation your honor we proposed the exact same construction that we propose here and that is one or more data blocks transmitted in sequence the court asked whether or not does that data stream have to come from an xterm or source and in the metro p c s litigation we said indeed when you're looking at the logical entity that is the encoder the compression algorithm the compression algorithm does not make up its own data the compression  compresses data created elsewhere so when the court asks us in the metro p c s does it matter if the data stream is construed to have arisen or be coming from an xterm a source we said that implied in any data stream that's a writing at an encoding algorithm or a decoding rhythm so we accepted that but we never purchased anywhere that the term data stream standing alone required order to transmit it if you choose to compress the data stream plug in and you compress it and then you send it out but that data stream coming in is coming from somewhere other than the logical entity that is the encoder now here what the court did data feeds are not x terminal they fail to meet one of the construed requirements for a data string then she went on to say that the i had e p certain i t's one of the defendants are quote that's doing the compressing at the summary judgment stage that's exactly how the court applied to quite tell us why the district court was in error with respect to the one twelve issues one twelve issue decompression and content independent stated fee compression those are the inverses of content dependent compression and content independent compression these are coin terms all they refer to as applying the inverse of whatever the compression algorithm was the content dependent or content independent it's the inverse of that particular compression algorithm and we believe your honor that that's a very easily understood meaning for the term terms on the prior art they had no problem whatsoever identifying exactly where they thought they found a content the pendant dated decompression and the content independent data decompression they never said to the examiner at the patent office during these really example we can't tell what those plain terms mean they were made a straightforward reading on specific pieces of prior art and they did that before any of the contentions were leveled in the litigation so they were using their own constructions of the coin and so we think your honor that this one twelve first paragraph and second paragraph issue is really a red herring of a very straightforward reading of those terms as a simple reading of those terms with a talk written description if it is the written description your honor is in fact i can point you to exactly where the written description exists or are for shows a content independent data decompression system and that is a description of figure six appearing in column five lines sixty six to sixty seven but moving back to toronto as i mentioned what the  did in arriving at the summary judgment ruling was layered on an additional limitation to the data stream we don't believe the data stream has any of these requirements for absence of control or writing from an external source w data stream in the ne of the that there is no qualification on that term data stream except in some of the other patty decompression claims which i'll get to in a minute because when we wanted to that indicates which data encoding techniques have been applied to the data records in that does not apply that expressed definition we believe that was error but then moving from there at the summary judgment stage what the  was she read an additional limitation even into that definition of descriptor that she did apply one that says it has to be appended to four specified those are the actual words but then she went further because for example absi summary judgment opinion appearing to join appendix page one eighty four the court road and applying the descriptive term p did she said the judge said do not themselves identify the selected in code or rather they point to a fixed template which contains various encoder types in other words what the court did in applying that plain term of the summary judgment stage was read into that claim term love the requirement that the descriptor by itself has to be available and has everything it's necessary to for specifying and as dr seamus explained in his summary judgment declaration occurring in joint appendix page seventeen fifty six in paragraph twenty eight he said and i quote each message contain mandatory presents map and a template identifier the combination acts as a descriptor because the presence of a field indicated by the presence of a map and the template identified by the template identifier indicate dr seamus and realtime proposed initially it was only after dr seamus learned of the claim to structures that were being proposed by the defendants and at the time that his expert report was due that he then proposed that if those claims constructions were adopted as they ended up being adopted by the district court because the district court adopted a wholesale every one of the proposed claims destructions that the defendants provided and rejected every one that we provided but what dr shame is did is simply said now that i've seen what those claims constructions are if the district court adopts them then there are i believe three that he said he believes would still be met if not literally then under the doctrine of equivalence so from a timing standpoint your honor we believe it was an abuse of discretion to require the doctor shamus guess what those claims instructions were and we were waiting and hoping that the marksman ruling were to come down before his expert report was due but it ended up coming down about a week later so at the time we submitted his expert report the identified what he thought were the appropriate feel we argued that if the defendant's constructions were adopted and the district court said that was too little too late we believe that was an abuse of discretion were claimed construction merely said it only needs to have enough for specified to indicate what was done because at the decompression end there is a template what we call the state machine that is referred to by the arrives at the receiving end and then it's accessed for purposes of doing the decompression i mean that's what i compression algorithm would necessarily do we wouldn't send things multiple times that don't change it sends it once and then sen pointer a template identifier that says go use that template when your dick od'ing this particular package and it's that template that identifies what particular lossless and coder was applied for that particular message finally i'm moving on to the last of the three plain terms that we dispute that is the data block type what we believe the court did here is again did not give the full scope to that claim to permit the patent specifications identify for example your honor taking a look at seventeen hundred utilize to analyze the incoming data stream for recognition of data types data structures data blogs formats files substructures files pipes or any other parameters that may be indicative of the appropriate data compression algorithm again in the seven four seven patent which is incorporated by reference wholly and both of the other two patents and sue the inventors said that the step of plus now what the court did a remarkable ruling was say no that means that you've got to put the the content of the data block into a category and that category has to be of a certain data type it can be any data type that's going to be some data type well when she want to apply that construction and the summary judgment stage what she ended up doing was layering still another limitation on to that construction because dr seamus had identified exactly what da seamus said and it's in his declaration edge a seventeen fifty two paragraph seventeen says a data type is a characteristic of data that enables it to be distinguished from other data for example the data is redundant or sequentially different for most common values and those were the kinds of data compression algorithms that he identified and every one of the accused instrumentalities and he said the characteristic that was sought was the relationship between the value in the data block and some other value to see if it met one of those three logical data types but the court when she was addressing the testimony from dr shamas in the summary judgment context so that no all the accused products are doing is checking the content or checking of value so what she's done is she's and then a sense excluded from the interpretation that she gave at t marksman stage for data block so as to exclude anything that checks of value of the data in the data block what we would we propose rather that in order to do any analysis of data in a data block one has to check what the value of that is particularly if it's a numerical number in other words a data type can be an integer it could be an unsigned integer a signed integer can be a number you've got to check that value before you can do any analysis to then as they necessary and dr seamus explained how a logical data type the logical relationship doesn't need a true false test is the data in the data block of a characteristic or type such that fits this relationship to some other those at the same of the six five one patent which shows the entity that generating the content is doing the compressing and then transmitting it to its subscribers in fact it's creating a ticker plan as figure one describes so it's got a content creation module eleven within the system ten and then a data compression server twelve but they're being operated as it says in column eight with a description of that by the same entity so we suggest your honor that applying those decompression claims to require that the same entity that does the encoding does the coding is inconsistent with the preferred embodiments or with that your honor i reserve the remainder of my time my name's michael posner i represent c m e group the new york mercantile exchange and the chicago board of trade i'll be addressing the issues in the brief filed by those parties those issues where the summary judgment by judge forrest that none of the products to start with that since that was a nice clean little piece that was discussed earlier i'd like to respond to what mr thomas said with regard to the timing and i would point the court to there's a great timeline of those events that's in the record at page sixty seven seventy six that timeline shows that the plaintiffs received the defendant's claim constructions over three months before the end of fact discovered what happened was they received those claims instructions they waited until fact discovery closed and then they told out based on our time constructions what they felt where the doctrine of quit once arguments by failing to give the defendants any chance to take fact discover concerning those equivalence arguments they prejudiced the defendant as judge forrest found and of course this court has a very high standard or view for a decision like this if only for an abuse of discretion and based on the timing i think that there was clearly discretion and an appropriate decision made by judge forrest now with respect to the summary judgment of nonet printer and on the data type terms the key issue for the court to understand is is why did defendants accuse systems don't need to determine the data they don't need to because the defendants accuse systems to not make that decision on the plot instead those systems use what's called a template and that is sent long before any data that's going to be compressed and in the central event template says here's the data you're going to see here are the types of that data and here are the encoding techniques you're to use so when the defendant systems receive data they have no need to determine its type they've been told what  that type has already been determined and was determined long before any data was received in looking specifically at some of the arguments that mr thomas raised i would first want to point out to the court that it's important to know despite illustration of the claim language here i would point the port to page one four zero four of the record because the parties haven't agreed to construction that informs this language and on that page you'll see that the  data once we get past the fact that this is about the data we get to the intrinsic evidence to tells us what data types there are the intrinsic evidence suggests a number of data types the ascii data type numerical data t but what they all have in common is that they line up with the ordinary meaning of type which is that it's a class with members there and a type is some number of different things all of which comprise a type but the difficulty with the infringement theory that the plaintiffs put forward is their expert has admitted that never do you choose to see for the defendants to look for more than one value they never look for class with members and never look for a type they're looking for one value and that is not determining a data type  according to the point construction now looking specifically at the intrinsic evidence the mr thomas read to you from the seven four seven summary and it's very important to know what he didn't read this is looking at lines thirty five believe it or he read lines thirty one through three make me make sure i get the exact right on yep so this is in line thirty one through thirty four and he told you that your f compression on the block comprises the steps up of what he missed which you didn't read and actually skipped over was the language if the data type of the data block is identified in other words the language he read you about characteristics only occurs can estimate the desirability of using an encoder based on the characteristics if the characteristics are part of the data block data type why would they ever be used when the data type of not identified that paragraph which is in column for on page four hundred eighty of the record starting at line twenty one and ending at line twenty six that shows that there is a contradiction between the plaintiff's construction and the actual language of the claim and the intent of the cab so the intrinsic evidence actually backs up judge construction was actually in accordance with the intrinsic governess we can now move to the other citation that mr thomas pointed us to which was at page four hundred eighty nine and again what this citation shows us the plaintiffs cho explain their invention in a way that did not include the broad reading that they now want to impose this is at the bottom of the problem twenty two where it talks about you can use data types and then talks about other well what's important to note here is learn when give us a line of sure your honor it's a call twenty two and that starts at line sixty five and that says that you can analyze the incoming data stream for recognition of data types and then give one it is pages and pages it's hard to even get to the figures you're on and that long prosecution both in terms of years and in terms of the amount of prior art that was introduced with i d s has resulted in f chose one of these options they implemented that in their claims those are the claims they were sort of against us they should be held to that in view of the fact that the judge has cracked to say the data type requires a category of data we now move to the second part of the infringement analysis which is applying that claim construction and here the court should keep in mind that what's important is not that they're distributed facts with regard to the terminology used it's is there a disputed fact regarding the systems of operation that's what this court looks to and determine whether summary judgment appropriate and there is no question about what the defendants to systems do they look for a single ballot and how they calculate that value differ if it's coffee they just take the previous value and there's a battle if it's increment they take the previous value added ones but the end of the game is what are they looking for they're looking for singled out and what church forces did is appropriate she compared to claim construction which set a category a classification the ordinary meaning a group of values and said without a single bob and she said no it's not the plaintiffs position that this is somehow an extra interpretation would mean that you would never be able to do your comparison without having an extra interpretation you're always going to be looking at the construction of the products and saying do they match the fact that you say no they don't match is not an extra interpretation think it's important to realize that when mr thomas talked about how you look at the data to determine whether it meets one of the through logical data types that does not occur and that is clear in the record and i'll point your  to that court that portion of the record because it is very clear important to realize that this is on in the record on page five hundred twenty nine that the templates preussag all the encoders you never make a choice that already set it's on page five hundred twenty nine and it says the message templates describe the layout of each message type and define which field in coding techniques is to be used on each piece because the defendants use a preset approach and real time an express definition of the term descriptor doubt the argument they made below was the express definition is it requires no more than a data token and they relied upon this claim expressed definition if the court consider the sentence that mr thomas identifies which is the columns sixteen lines twenty three to twenty six but then considers the preceding sentence both of which are describing figure five a particular disclosed embodiment those two sentences are entirely consistent with what the district court adopted to claim interpretation the sentences for acquire the de terms were added to the claims ten years after the prosecution began those terms they have no meaning in the context of that they actually make no common sense and the simplest way to understand why they arise  claims the portions that mr thomas referred to were in the summary were actually content independent and kind of dependent are describing compression which is completely accurate and then there's that word decompression and there is decompression that occurs in some of the claims and in some of the systems described for sure not have been spied content data compression because if the court considers figures eleven thirteen and thirteen  all of the compression is content independent when you get to the other side content dependent data compression and content independent data independent data compression our way to pick  and the most significant thing about the specifications says this if you look at say your thirteen and thirteen big it says if your content pendent you go to the top that the figure is for content independent go to the bottom half of the figure care how the selection was made so when i say respectfully that it doesn't make sense it's because the content independent and content dependent are mechanisms described in the patent to choose an encoding  when you get to the other side you don't care how the choice was made all you care is what the choice was and that's why those claim terms actually both wrong or don't make sense and therefore indefinite and also don't have written descriptions for it's actually more than not having read descriptions ford interpretation the given contradicts the specification it doesn't make any sense in the context  if i could come back to quickly through the descriptor and there are three points i'd like to make in the remaining time on this issue the first is on a claim construction it's important to focus on what the old times says are the issues before the fourth one they claim that the interpretation that require that the descriptor be with the data block is incorrect it's correct for the reasons he describes are great but i would prefer the reason for this and the reason is this we don't find an invention by its own description it is intended to deal with dynamically identifying and encoding information when you don't know what the information is going to be that's why you have to route if you know what it is one would if you don't it's dynamically dealing with unpredictable information the fastest m is the system which is dealing with very predictable information it is financial information that's typically communicated time after time again and you know that it's going to be the same type of information the same type of price information the same type of incremental injecting that information and that's the reason that the template can be used and only by using the present snap which tells you whether a field exists or not the template id which were a pointer to the right template and the template together with the last message that the parties agreed upon a claim interpretation the court adopted the claim to update that claim interpretation which speaks in the present tense on its face is not infringed as she found there is no for protection i can do own clients defendants made an unrebutted factual showing that in all the accused systems the same server that performs compression retrieve the data that is to be compressed from its own internal memory that is precisely what real times experts said could not be adopted stray in every one of the nine declarations that they filed during the reexamination i've been waiting for one of you to address data to sequence had been altered by the system performing compression could be a data stream and and why of c of the three entities of an opera also made factual shellings that the  sequence of data is in fact altered in their systems which the district court credited as well we submit that the real time should be held to its positions under the spring windows fashion case where this court held that it was entirely proper to hold an applicant to positions advance during prosecution which the examiner chose not to adopt of the broadest possible reasonable construction  where notice to the public as well served by doing so as we submitted it is here by virtue of sheer force of repetition in this regard in the spring when those faster in case of the court was influenced by the fact that the statements that have been made were detailed consistent and repeated as they are here real time argues the district court and changed of the construction that had been given to strain in the packet tear case but that isn't true in packets here the court had construed does it strain as one or more blocks transmitted in sequence and real time experts during that reexamination did not disavow the package here construction they simply explained what it meant to transmit data in sequence and in that regard all the littler declarations and acknowledge the pack into your construction and state that retrieval from internal memory stream is something that comes from an external source so real time sexperts only claimed to make explicit what was already implicit in the package your definition and when the district court below chose to adopt a real time facts for example lucian's it did not take a position inconsistent with packages here but rather one that was entirely consistent with the real times expert's explanation of it now real time took the same positions in metro characterized dr modesty no it's not arguing a distinction between active and passive receipt that was important but rather the critical distinction between an internal memory fetched and the claimed element of the data stream and even here in the summary judgment briefing below it j s sixty two sixty seven and sixty two eighty three footnote ten real time didn't really try to argue that it's experts hadn't said what it had said or that there were disavowal as rather they argued that the accused systems even though they didn't have internal memory such as and even though they controlled the sequence of transmission of data could still be found to infringe because under the fat standard somewhere some at some place at some time there should be a data stream well this argument fails because first of all the theft standard is optional and more importantly neither compression systems and the dispositive point is that the claims of the five six eight patent on which the district court granted summary judgment for old the defendant is that  and claim twenty is directed to putting an executive will file the process of stream by recognizing data field type in the data string and applying associating coders so under the five six  art had been sorted into containers and only after that had happened had there been a compression and dr marcus you know said that the very same language is not present in the five six eight pattern requires the presence of a d stream at the point of the compression so will time principal failure here is that they fail to provide evidence that the data stream is actually present abt the point of encoding and the district court recognise that this was a dispos point and relation to i m c a j a one ninety she has a heading in our opinion the asked whether there is a data point a data stream at the point of encoding and she found the evidence one sided nothing material having been provided by real time in relation to n y f c she also found the decorations had been basically unrebutted and relation to the other two patents with six five one in the seventy four seven the issue described in those figures and associated text is the data stream that's compressed and sent to decoder on the input side it's a very general reference to content eleven which is input into a server twelve and there are very general claims in the five six eight patent that claim that kind of arrangement they are not directed to a data stream but they're directed to a financial data feed claims fifty three through sixty seven are all directed to a financial data feed and cover that embodiment figure is shown in the seven four seven patent which are incorporated by reference into the five six eight patent are directed to and input data stream and they are the embodiment that are covered by the claims that issue on this appeal in fact dr matas pheno in the reexamination site those very figure this as evidence of the fact that data stream can only be construed as  district court in fact construed as there so we have real time taking a position on appeal that is entirely inconsistent with dr modesty nose up position during reexamination i'd also point out that even the datastream planes can cover some kinds of market feeds created by the exchange in the jacob declaration there's a diagram of g eight sixty six seventy reproduce a page nineteen of our red brief that shows on to present data streams coming into opera and have opera compressed the data streams that perhaps the claim element would have been met are declarations were directed to showing how that employed stream was dismantled sordid stor the sequence of data altered so that no data stream existed at the point of compression thank you seamus identified was looked for during the analysis of the data content cannot and does not constitute a data type is it contrary to the evidence in the record specifically we presented and i triple the dictionary to the court that defined data types as including logical data types so the suggestion that when dr seamus identified that the data that was a residing in the block that was being analyzed was then compared to some more data somewhere else to see if it met a a redundant test support that met an increment test or for met a most common value test it was whether or not that relationship exists that led to the next step in the claim process that is selecting the content the pen did compression algorithm all the analysis has to do according to claim twenty two and all the claim be able to permit the selection of at least one content fresh in our rhythm and talk to him with his declaration of stablish is that there is more than a sufficient basis to believe that that relationship not a value check a relationship check is a logical data type i would also point out your honor that with respect to data type what we claimed was a data block type let's not forget that i always want to compress the claim language here and they say all there are to analyzing the content of the data to determine a data type to determine the data block type and we use that term because we wanted to capture any and all data types because there are numerous data types weren't even known at the time of filing this application and we certainly weren't trying to exclude the usefulness of looking for specific new data types and might arise so those data types could be any logical relationship or characteristic or attribute so we said data block type or data field type that's what we were trying to capture we weren't trying to exclude anything or play more narrowly i'd also point the court's attention to j or recognizing the content of the data block to read on analyzing the value that existed in that particular datable and he did that because he was trying to make a one zero to be on sale bar allegation so he was trying to establish that what we had demonstrated by way of our prototype well earlier and our development efforts because there was a prototype that was demonstrated through at least two of the defendants by the inventors of the patents ensued and by real time and they were trying to make out i want to be on sale bar so they had their experts go in and try to reclaim one of the five six a patent of what we had done and he said oh analyzing the value in there that that counts as analyzing the content of the data block and indeed it does because it's not just a value check we're not just looking for one number we're not looking to see if a number is a is is even they're looking for a relationship is it the same as the number in the immediately preceding message because that number changes so you're looking for the redundant serial looking for the increment so you don't looking for a single number nor are you looking for one number you're looking for a relationship and that's exactly what dr seamus expressed and how he showed that even under the court's construction the data type as your data block type as being one of any other kind of data type we could approve an infringement if we'd  given the chance and we should be given the  that the inventor is included in the patent specifications in all three of the patents for specifying though doesn't necessarily mean that you have to have everything that's necessary for doing the decompression for specifying as dr seamus explained merely means that all you have to have been the descriptor is sufficient information that can tell you how to go about doing the decompression at the receiving end so even under the court's construction where there is a all that claim construction required yet what the court did is require in the summary judgment motion to say no no no it's not just for specifying it's got to be for the alone for specifying or by itself must be able to specify and that's not the claim construction required and it's certainly not a fair reading of what our patent definition of a descriptor says with respect to content dependent data compression and content independent data compression i would ask the court to think about it like this that construction requires at the same party that compressing something decompressor so that construction requires that you compress something and send it to yourself and then you decompress or because remember these claims here are the ones that require the content dependent data decompression and content independent data decompression claims a coding system not just a system and not  the construction of the i'm talking actually now about the encoding decoding claims here your honor the one where the court said that the wearing clause is required that the same party that is doing the decoding have done  and so in those content dependent content independent claims the ones where the court said if there are the data stream which those claims simply do define to have certain characteristics and those characteristics define how the data was that's how she read the where it was we believe the where in clauses in those claims are simply giving you the environment in which the decoding system operates and so from that purposes your honor we don't believe it makes any sense for the court to have construed those  key there is that the court ruled the court ruled that the data stream required that it be coming from a third party and that's an unnecessary limitations and that's how she overcame the testimony and evidence that we presented from dr seamus under which we could have met that claim construction if given the chance of trial because there's no requirement anywhere in the term data stream for receiving a data stream that says that the third party has to be that that data stream has becoming from a different entity but that's what the court did but in your honor i'm out of time  for eighty five and that said the step of performing content dependent data compression if the data type of the data block is identified because that's where you that's where you it's when you recognize the relationship you is if the data type of the data block is not identified comprises the steps of identifying the and that's that's where the view to have a content independent data compression in other words your honor if there is a lack of a relationship that one is