honor good morning and may please the court microsoft initiated this proceeding because motorola's android based mobile devices incorporate basic technologies that microsoft invented and patented and indeed in some cases originally licensed to motorola for microsoft patents are at issue in this appeal because the commission concluded that the motorola devices don't infringe the patents with respect to three of them the three seven six one three three zero five four patents the not infringement decision really rests on claim construction mistakes now time won't permit me to talk about all of the patents although i'm happy to address any questions the court may have about any of them i'd like to start by addressing the three seven  because i think it's an example of the claim construction mistakes that led to the nine infringement findings can you talk starting with the three seven six but rather about the domestic industry issue where for that one then four w six seven six two or six six seven two you appear to require third party software in order to meet the claims and the commission basically found it didn't frank i think there are there is a there is a factual problem with the commission's determination on that which is i think where your question is going your honor and there's also an overarching legal problem but let me start with the factual problem first of all with respect to the zero five four patent which you didn't ask about they're in the domestic industry and infringement determinations are basically one and the same so if it infringes then there is a domestic industr y finding for the three seven six now the argument there was that microsoft failed to show that the domestic industry products include the client applications required by the claims they argue that microsoft's expert didn't actually look at the domestic industry devices but just look at microsoft's source code and they point to testimony by microsoft's thirty six witness that manufacturers to the hardware manufacturers don't necessarily use all of microsoft's source code in their in their devices but in fact with the record shows is that microsoft's expert dr olivier testified that he did examine devices loaded with microsoft's windows mobile six point five operating system and he identified specific client applications now as for the testimony about manufacturers not using all of microsoft's source code that testimony was directed specifically to the hardware specific driver code that the microsoft thirty six witness said obie o e m the manufacturers would use to be compatible with their own specific hardware i had nothing to do with client applications pardon me your honor so i think the  is just as a factual matter that determination is wrong pardon me on the three seven six now with the seven six two again dr olivier analyzed microsoft's source code in established that it practices the seven six two patent when it's  on a mobile device the argument there is that there is no evidence that the domestic industry products include the hardware specific driver code from microsoft's source code again pointing to the same thirty six  witness testimony but what the thirty six witnesses said is that many factors include the driver code for their own specific radios in that device in other words they have their own hardware specific drive record and judge e and appendix two eighty five basically said the same thing there's no requirement in the claims that the driver layer code be identical to microsoft's source code all it requires is that the device include hardware specific  driver code and it does it doesn't have to be microsoft's hardware specific driver code the fact is that the device as a whole includes all of the claim when the patients no matter where or what particular source it might have come from also as did answer when in which he immediately the second or third or fourth sentences they he then goes on to talk about the microsoft version so he never actually says that while it has this qualcomm radio in it that there's a h says anything about the driver for that in that device but i think that's a fair inference from his testimony because what he's talking about is this under spewed that the microsoft driver layer is hard course microsoft tone includes a hardware specific driver later and he's saying this code in the h d c device has the same kind of command functions in the same way so i think it's a fair inference you're right he doesn't he doesn't spell it out in exactly those terms but i think it's a fair inference from his testimony and also again going back to what the thirty six witnesses and what the what judge essex found that manufacturers include hardware specific driver code in their devices and that's that's what the claims require because could we talk a second about the technical pronk of the domestic industry industry would cry quire meant that the old statutory language says that the article must be protected by the patent correct that's language doesn't necessarily mean that it has to be claimed by does it well i think your honor if you all be protected by even if the article is does not actually incorporate the technology well i think that's right i think the statutory language is actually when you when your personal language is actually quite a bit broader than the commission of related to are one with respect to you know it doesn't say a domestic industry that sells and manufacturers it's as a domestic industry really related to investments with respect to other words i could be a domestic producer of say on microsoft and i'm trying to sell my technology i'm not making a product that my technology is rejected by all u s consumers because they say no i'm buying it from abr with that fit and of course you would say well that my technology protects this area even if i'm not making a product is that would that trigger the technical prong of the domestic industry requirement i think it would your honor and you get around alec and crocks well both of those say differently than what i just presented to you is you know well both of them say they say something different but in a very different context and i think if you look to the inner digital decision which i think is this court's most recent pronouncement on that the technical prong odd as of cour situation are you have to show that they are the product you're met at your manufacturing and or the manufacture of which you're pointing to actually practices all the limitations and these are as in a digital explains the statute is actually quite a bit broader than that and in fact the legislative history indicates and it's consistent with the statutory text that it was intended to protect industries that i think is are exactly what your honor was describing if you presented this argument to us in a way that we can address i think we have your honor i think it's it is laid out in both about both our opening and our reply briefs again relying specifically on the not only the language of the statute but the energy in a digital analysis of the page i don't think we need you think we can address this getting by alec and crocks without going on bill i do your honor just as for the very reason explained in your traditional we were not we were not microsoft was never relying on domestic production the domestic production prong of the statute here which is what crocs and alec were talking about it was relying on because those three see the three c prong which is engineering research and development or  i'm assuming which i know you disagree with that the claim construction adopted by the l g a was right do i understand right you have not at least here made the argument that the add delete change functions are infringing under that construction let me let me take a step back and just to make clear what our position is the it's not just and it's never been our position that it's just the add delete change tag that is the resource state information it's the it's the entire sync command in active sync which includes sending the actual resource data along with the state and you need you need both and that's the resource date information on it it but we have not argued in this court that if you take the kind of strict understanding of version that judge essex appeared to adopt meaning you know persian document number what and some such and such version two point zero or two point one what have you we have not argued that it includes that information what we have argued is that it includes version information as it's actually used in the past and the pack uses the term update version which refers to the current condition the current state of the resource at the time that the communication is going on between the mobile device and the server so we do put we do believe that the sync command in active sync which is what motorola uses conveys that kind of version information but as far as you know the specific version number sort of information no we don't argue that or or the somewhat softer version if one interpreted what the l g a said about the clean construction to me providing information about the version not some sort of absolute information about numbers  relative for nation namely this version must be a newer than the one that the recipient of the message is has because that's why we're telling that we sippin to do something with the version that the recipient has well your honor to be you know looking at the softer of the softer version of version that way but in fact what the sin command does is it actually sends a modified resource and the tag that says basically says here's here's why this version using  generically this version is different than than what you had before it either was added deleted or changed so i think in that sense and in the softer sense of version i think it does convey that i guess that's the argument that i have that i did data and i think that combined with the tag that says what happened gives the effectively gives version information i see that i am well into my rebuttal time so if the court  does has no further question the only thing i would add is on the three seven six patent the ale shape there basically read in a requirement that there must be direct interaction between the notification broker in the data store there is nothing in the clearly in the claim language and the specification of the argument was that there are no in body mints that show anything other than direct interaction even if that were true it wouldn't be enough to read a limitation into the claims and all that shows is that there is no need for any intermediate component there's no disclaimer no even if we agree with you on that how do we get around the client applications aspect of that same claim the ip there are to a client applications being technically different from the notification broke but i think there are two ways to get around it your honor we want to is there's nothing in the claim language or the specification that says that our client application can't also can also be part of the notification broker and the specification want to talk about state change components and so on and we laid that out in our brief i think makes to clear the other reason is that it's undisputed by either motorola or the i t c that microsoft identified at least one client application that is not even arguably connected you know part of the notification broker and if you read the language of point their argument is well you've got to have more than one because clinton talks about  applications in fact if you really read through the claim what the claim requires is that at least one client application register for notifications use uses the plural clients in the more generic sense that you can have more than one but certain articles smartphones in microsoft believe that it can show domestic industry based on those smart now as a result analyzed the technical problem he considered all the articles even those that were manufactured abroad so is that the difference is that the distinction i didn't know whether that was what we were arguing about whether or not the articles well microsoft greatest in both opening brief and reply brief this issue that it was required to show domestic production in fact it wasn't the case microsoft who didn't does rely on the in that circumstance the this complainant manufactures the manufacture of the product and so but there is no exception for this complainant to show that there is a technical problem and it satisfies so in the microsoft what's lacking in this record essentially is microsoft fail to demonstrate that the actual devices examine the device it was loaded with microsoft operating system that then there will be no testimony of that particular code developed by microsoft was actually third party application that is it's possible that a phone manufacturer that loaded the entire windows operating windows mobile operating system  that that system might have enough in it to meet the claims well microsoft relied and i don't think that's the case microsoft relied and actually provided the example code for every for  court wasn't used only applied for the lower level which is a driver in fact there's no it when the record i'm i'm really not focusing on the seventy six to now i'm trying to focus only on the three six and that was the reason why the judge found that there is no proof now three seven six actually turns on plain constructional two major most important for this patent term have direct connection well there are several reasons why that was actually the case well one if it's consistent with their understanding or one of four there is still in the ark and that's consistent defined as quote the charter says quote the term notification broker refers to an underlying driver responsible for at least adding updating moving data from the data store then after the martin for the first to have any kind of components in it and the answer to your question just greater is the word directed not of the specification and the reasons not the specification is because everybody in computer science  it's we presented evidence through the testimony of dr alexander asked to what the plain ordinary meaning of driver software is it's software drives hardware it's the lowest level software and in fact we presented the example of a printer driver in the whole purpose of driver software is people computer science know is so is to abstract out from the specific software you need to drive different pieces of hardware this enables computer higher level computer software to be much more efficient because it doesn't have to worry about the specific hardware specific driver software it substract it out so you can send something to all kinds of different printers without having to change your code each time epitaph by itself doesn't say that there isn't a stop between that driver and is a single being created stop that would mean it was not direct testimony for the contract with the conflict it with dr alexander their expert did not contest that fact actually he actually used the term wants in cross examination talking about underlying drivers below this the low operating system you might have a trouble with this direct compliment which seems to be read in out of thin air talk a minute about the client application and  notification broker why can't those be the same well a number of reasons in other areas of technology with the knowledge that you can have a single component performing look there is a problem that is invention addressed was and you have these clients multiple clients and they all want to know be informed about different changes in states of other components so i want to know when the battery is a twenty five percent or i want to know something else so you have so you have one hundred change take components things that have states and you have one hundred clients and each of these clients want to get updates from the changed a component is really inefficient you have a matrix of like you know one hundred different lines and so the alleged invention here is you have a centralized notification broker and a notification broker keeps the register and these clients register with another edition broker and then the centralized broker then monitors a different change states and if the battery gets twenty five percent it looks at the register of all clients and want to know when it's twenty five percent and things and all that's the whole description of the eventually here so then when you go looking at the claims every single time in the claims that the client applications plural and it talks about client applications registering with the notification broker talks about i think couple to notation broker all of which supports the construction that they have to be different things so yes in the abstract the proposition is absolutely correct your honor what do you do with that that place in sure because they i'm the battery application that is a client but it also is monitoring and managing the piece of hardware the battery and so it's both a client and a changed a component that that is totally irrelevant to this centralized notification for so so you have still have all these intersecting lines but the purpose of the notification brokers to be separate from those things and be a point out that microsoft's expert on this issue admitted that they can't be the same so i could just quickly read that d n a on that question but according to the patent account a client cannot be the same thing as a nerve cation grover will you agree with that answer client registers notification broker question so they can't be the same thing as a notification broker answer that's correct and the minute also a separate time which we've started a four to six to eight so there really wasn't any dispute different from research and development and other efforts if you license the patent you can show it listed there and then you can show you basically and you can show people are paying you money for that patents by selling products it's a whole different analysis that if you're just talking about research and development if you talk about research and development you have to show that the research and development according to the statute is with respect to the articles protected by the patent if a single element of that pat of a clane that you're saying that has not met you are not it is not with respect to articles protected by the pa not in the specification they rely on extrinsic evidence if you look at the expert testimony they're talking about the word direct isn't anywhere in there either so you win on that one how do you get around the client application well your honor i think we g around the client applications again as i said in my opening all you only need one under the language of the of the claim and it's undisputed that there was at least one of the phone app both motorola and the i t c acknowledged fact y kind of a good point about that notification broker is a key element of of the invention here and operates to make the client applications  more efficient right off absolutely and if it absolutely does and that distinguishes client applications from notification brokers i understand i and i didn't i didn't make my point clear my point is that it's it's undisputed that there is at least one client application that has no connection at all to the notification proper it's not even allege that it's part of the notification problem and that's the phone app there are other at other point applications where they argue well you know it's as you said  part of a the north station broker here and you said it isn't here but as to that one which is in the in the accused products there's no dispute about that there are only argument as to that is when you need more than one and i think if you look at the claim language you clearly do not so th on it where it's talked about what's registering for the notification which is what makes the whole thing work and says at least one client application registers and then thereafter talks about applications things just like in the versa case which we studied in our briefs that the plural can mean one or more  depending on the context and here that that context is we think indicates one or more on domestic industry it's not our if it was not our argument that the commission area because we were required to show domestic manufacture that motorola had argued that a law that argument was rejected the the and mr verhoeven's argument about licensing being completely different from engineering and research and development is just it's not supported by the statutory product it didn't need to the court also noted that the i t c had consistently held that the licensee doesn't need to make actually make the products either and you could still establish a domestic industry there's no reason to treat licensing different from engineering certainly don't extra reason to treat licensing different from engineering and research and development in the statute of the the last point that i would like to make one other point on the the three seven six patent and that's on the state change component point i think your honor structure over us about a state change component is and is defined to be any component that as updates or maintain state properties in the data store that's exactly what a notification broker does and cliff if it seems clear from the spec that you can have this overlap between something that can be a client application and also can be a part of the notification for over the last point i would make is on the whole fight for pat just around to us asked about microsoft's argument about infringement given the a claim construction inversion and all that i would just refer you to pages fifteen and sixteen of our reply brief that's where we lay out the argument that i was trying to describe earlier thank you very much thank you mr farrell our next case