case this morning is two zero one two dash one one four nine plus point tech versus i t c mr felons or before we start you can approach but before we start i wanted to bring up something i noticed that there is an enormous amount of material in the blue briefs and read briefs designated confidential all of that material as best i can see pertains to product and if you're working with a  construction is undisputed they point out in the red green and the green briefs that you have weighed this issue on appeal and then you just marched forward in the great grief without addressing the waiver as though nobody said anything so tell me how it is you have a right to argue from is the commission's changing of the l g s construction we do not dispute and in fact proposed the l g did you object at the commission level to the change in the instruction we didn't the commission change the construction a er briefing forgive me if and if i'm wrong but don't you have an opportunity to do a reconsideration or bring to their attention that they've modified the construction and you didn't have an opportunity to weigh in on it i mean were you left without any recourse to bring this bill you you can ask them to reconsider and bring it to their attention thereby preserving your objection to it is that something you can do before the i t c as well i believe are the as we understood the a proper appellate process from the commission's final decision was appealed to the information relating to the l j and this is that appendix seventeen over eighty eight said that the information stored need not be in the exact same form or have the exact same content as the first orientation associated with the image that was determined according to the immediately preceding claim which action in the commission opinion however this is appendix at page seventeen the commission said information indicating the entire determined first orientation must be stored in memory to enable the subsequent comparison therefore in our view while all of the construction below properly gave weight to the language relating to so as not to require identical content commission and its construction who said the the information stored needed to be the entire first orientation and would leave that erroneous construction is what led to  orientation requires both a direction with respect to an access and a porch or landscape aspect ratio is your dispute that those two components are not required you know that was present in the ale to construct no  dispute your honor is whether defining the top of the image as described in the context of figure six in the pattern if if that is of sufficient indication of the directional component why do you think that claim construction if you're agreeing with that you have no objection to the claimed construction which is requiring a direction with respect to an access and the aspect ratio then your dispute is whether or not the top of the picture meat that limitation seems to me is a matter of application of plain construction not a matter of plain construction and the reason why i believe it's a matter of claim destruction your honor is the entire what what the commission relied on when saying the entire need to be stored as a rotational direction in the context of the preferred body meant to describe left and right when modifying portrait in the context of figure six and the pattern then goes on to say that the preferred method is to define the top when the pattern is referring to display in the context of figure nine figure twelve and figure thirteen the pattern only uses the words portrait and landscape and never describes left or right as modifying portrait never describes upright or inverted as modifying landscape in terms of what is stored as information relating to the first orientation i guess but i i understand your argument in terms of the big picture i'm committed because they pretty rotate and so you can't tell if it was left or right pictures taken i totally get the technology and i understand what your big picture argument is i guess i just don't understand how you're trying to morph it into claim construction you want to put that makes  o and you like that idea but i don't see this is a question of claim construction the core very clearly said a direction with respect to an axis and aspect ratio what's required you agreed to that and i just don't see how your argument is finding fault with that claim construction and i don't see any other claims instruction anywhere that you're finding fault with sure if if i could on that point what the commission found issue with is whether the rotational direction so they added modify or rotational which would eliminate the definition of the top as being the directional component of the first orientation and that that was our position ok so we're going to show the two components which when you think they messed up on direction with respect to the aspect ratio they what they erred in is saying that when they did include a direction with respect to an ass if it had to be a rotational direction as opposed to the top of the  exclude the figure six process from the claims because figure six nowhere describes storing it rotational direction does describe storing a direction scribe storing top and bottom or only top but nowhere describes storing the rotation right portrait left portrait upright landscape in inverted landscape hell is at the alj a quote from his claim construction given that how is your commission modifying it by requiring a direction with respect to an access be a pre e rotational direction because the the next that's the first orientation of the next limitations during an indication of that and so the issue of claims direction is whether the indication needs to be identical meaning left right the storing stamp was that an indication of the first orientation must be stored and this is that you're saying that just saying talk should be good enough for being an indication yes yes but that's not playing construction that is application of the claim buffer in one of two directions what the commission changed the construction of rotating the image to be is processing the image to change the word station of the image while the image is being stored in the frame bu framebuffer however figure thirteen uses the term screen buffer and what the commission excreted was again the read operation of the product that the image is admittedly placed into the screen you know i meant with the top of the display in one of two directions and so therefore by limiting the rotating as being rotating into a frame buffer as opposed to the subsequent rotation by storing it in one of two directions the screen buffer and never compares the first orientation with the third orientation to rotate the image during image display this is not the issue of claim construction flashpoint today try to change the claim construction  claim construction in two ways first the algae construed information relating to the first orientation as an indication of the first orientation even though content and format does not have to be the same it's still has to be a sufficient indication that the first orientation be able to go further that requires the indication has to contain information pertinent to the direction with respect to the axis and the aspect ratio as well  he actually did when he applied the construction a one seven one two three he said that just aspect ratio is not an indication of the first orientation and also the first start with that decision on his  part of the claim construction are part of the application of it's application but it shows what he meant by the claim construction or so if his claim to the solicitation of and he then further said that you only have an indication of if you have both things right is that at least that both both of those components because you you certainly have an indication of right an indication of because you know top you have with a captured image and they l j on a one seven zero eight seven he said capturing of the image means before the completion of generating image data from the image sensor a he did not adopt flash point claim construction at that period goes all the way up the story so that period is what the camera sees an image sensor it's the data and the image sensor flashpoint tries to say that a rotated image at the gravitational top of the object or what they call the visual tough spots the leaves of the tree they're saying that because there's a top to the object that is an indication of the direction but they actually change the claim construction because the direction is associated with the orientation of the camera capturing and  capturing does not include the time and storing they did not dispute that claim construction and now in the reply brief they're saying that captured the image means the stored image but that's not what the  that's not with dale jr construed as the captured in age and is first orientation has to be associated with the capture image and not there's a distinction between the image in the object and there is a good distinction there figure two and column three forty five to six of the patent there's an object one twelve and there is that image on the sensor that object if i can simplify this in terms i can understand you all for you rotate and so what is stored is an indication of direction of the stored image but not an indication of the knowing just it's trash after the images captured and then stored correct it's destroyed by the android operating system in fact that what normally normally j takes files have what's called an orientation type in the header of the simply not for and flash points own experts a need and this is a one eight four one four that the only comparison that occurs during display time is the comparison between the height and with a rotated image and the height width of the camera but now flash point in a blue breeze at fifty seven it's grape brief if they're cheating they actually argue that there is still a comparison between the direction of the camera and the direction of the rotating image and what's interesting they actually cite absolutely no evidence to support that the evidence shows that there's no comparison of direction either camera or wrong rotated image the only data being compared is the heightened with racial a bases claim construction on the description in the specification that says that you have to have the ability of storing that image in the frame buffer in two different directions and at and here flashpoint is confusing between flat frame buffer and display but in screen buffer in their own  in their own and this is highlighted in the commission opinion page forty seven is that they actually pretty much admitted that framebuffer is the buffer what's at issue here is that the end they're trying to change the claim construction the algae did not adopt their claim construction that simply storing it in the frame buffer in the same way that it came from storage and this subsequently displaying it so that it seems to the viewer that the image has been rotate question yes but so if they were correct that i construed commissions opinion as offering a totally different claim construction modifying the claim construction would they have a right to speak before us review of that claim construction even though there was no dispute last blow would they have had an opportunity is there some exhaustion principle where they should have brought something before the commission to alert the commission to their objection the issues in the state and they could have found reconsideration but they did not and what is your position they would have needed to file reconsideration in order to properly preserve for appeal the issue a claim construction that's correct and appeal it but they at least they think they did they're trying to morph the different standards from whether there are substantial limits to support of commissions decision and issue a fact and try to morph that issue which is truly the issue that we have here today into one of claim construction which has a lower standard which you want to point it out and i think to be fair they don't like the fact that an indication of is construed as requiring both elements direction with respect to the nexus and yes that's ratio i think they would like to throw the direction of respect t possibly out the window and not have the party claims rights and i think you know maybe technically it is plain construction but you know that i'm not entirely sure sure of the argument that construction with respect to storing the information related to the first orientation associated with the image and that image of the captured image that construction that the l j adopted was flashpoints construction that construction to the l g adopted was adopted by the commission had to be sufficient information to identify both the ethnic ratio and the direction in its application with the agency android devices as well as with the spec to his application induct instruction to the domestic industry products the motorola device substantial evidence that supports that there is no direction that is stored that there is no direction that is used to compare between the first orientation and second retention as well as compared to in the third orientation in the first orientation that first orientation information that is captured at the time of capturing now we gotta remember that the time of capturing has not been disputed that n period is at the end of the output of the raw image data out of the image sensor that raw image data is the captured image that ramesh data does not exist in the agency android after that image data is operated on to have a rotated stored compressed jay pick fuck that first oriented first orientation information that was captured at the time of capturing so at the end that the output data is output from the image sensor that first orientation information normally very exists either it is destroyed dr livio is testimony confirms that it's destroyed there is no direction information stored in the header of an h d c android device i want to move on to there's an implied license issue i was hoping you  three point three point one that apple has a right to sub license a subcategory a patent that is then defined to be only those patents that relate to flash point o s and flash point ho system rights to license and spends one of which is a seven six nine pat to say that three point three point two is a subset of the rights of three point three point one is not supported by the law not supported by the clear language of the two provisions not supported by any of the provisions in the one thousand nine hundred six agreement the other provisions that flashpoint points to as in support of their position that three point three point two is a subset is restricted by the boundaries of the license rights that are providing three point three four one pertains to technology licenses not the patent licenses there's a distinction between patent license and technology licenses so any again the resort to parole evidence or the resort to the intent of the parties is not necessary under california law if the language of the contract is unambiguous there's no need to resort to parole evidence so it's a position of  one of which was microsoft and microsoft license those rights say she's thirty eight she see through a she sees acquisition of windows phones operating system i have no further comment image store as an indication of the directional component of the orientation what is not is part of the commission opinion this is appendix eighteen there is a tag if either missing or one that indicates that the zero zero point of the stored image is the top left corner of that image and your honor referenced whether left word for it right portrait where that an indication of that is preserved restoring the top left corner and i it is as you can see from figure six page thirty five of the brief if there is a left portrait image the top left corner will be the what was originally the right edge of the image sensor or camera if it's a left rotation portrait the top edge will be what was left edge and so by storing an indication at the top left corner of the stored image is the top of the image you're preserving an indication of which part of the image was left or right when the image and then it was a bit off by what you're saying right now i was under the impression and i please correct me if i'm wrong but that they stored there is possibly in indication of direction relative to nexus that you can't tell whether it's like left corporate or right what is stored in their system you can't tell whether originally at the time of capture it was left tortured or right work that that is true your honor but what you can tell is what the original top of the image was and that stored information will be different if the original in an image was left portrait was and those will be two different points on the image depending on whether the camera was held to the right or the left and so because the claim construction is information based on word and indication of the first orientation indicating the visual top is sufficient there's no need to go back to determine how the camera was held the whole purpose of the invention as describing the pattern is the display the image upright and by identifying the top of the image  that provides sufficient information to later perform the comparison between the image in the display and i have one citation to the final history that supports that and each he sees grief they argue  hear what you have to say about it sure and so on the issue of so why something that's our position that the section three point three point one three point three point two and three point three point three of the agreement must be read together and reading those together along with the stated intent of the agreement which was spit out flashpoint and allow it to license technology and patents that the commission's reading would essentially negate that purpose by products and has a specific carve out preventing apple from having a license to have third party cameras made with a third party brand gamers or scanners and the commission says any product in three point three point two but it's an on the hamburger right but if you said you can have a hamburger but you can't have french fries in addition you can subitems your rights it would be inconsistent with the first cause to say i was like you can have a hamburger but you can ketchup on it you can also have a french fries have french fries and if you want catch of there go for it i mean i respectfully disagree with the analogy what the the purpose of three point three point where third parties could make a grand digital cameras license the patents when apple is prevented from itself if you didn't dress alike if you i did not well i think your time is up get a final thought you'd like us to hear just one one final thought regarding the final history in this idea of whether pre rotation excludes storing an indication of the first orientation in terms of the final history  all the council for their argument the case is t