right so it is not it is one situations where i know normally you'd be looking to read some other meaning into the word advertising because it's there but this is one of these instances where the claim is on to explain what it means never has a fetus in exchange for so that's what it means is all it can mean there for example on a system in which someone provides a service for money that's normally what people provide services in exchange for any form of increasing the likelihood that their e mail will be forwarded ultimately to that we're city you know i think it's but i think it's more than that because you know allowing for in what respect is it limited so that your c construction does not read on what i just said certain the the the feed the well in terms of just the plain language right allowing to be forwarded right you do that when you pay you're paying for you know allowing the mail to be for d right you know the thing is my hypothesis is it seems to me that that you what your planning says as you are interpreting is that's all you need money paid and increased likelihood of forwarding the e mail and you've done what you're wearing what you're paying an agreement for those is i think actual forwarding the points just that these terms of direct infringement here right you've got a computer this program to and the computer is going to be at say a router internet service provider maybe a system administrator something like that you know keeps going downstream and so what we're talking about is the claims computer at most i think you can say let's say the plane's computer will allow the user you know the service could be activated or deceptive it which is somewhat obvious and i mean in a free society there's no way to guarantee that any e mail will necessarily get through to anybody but we do have here though is if you sign up for this and fax your which  people to allow ice cubes and whatnot to allow emails to be forwarded through that so for example so what it is is it's a factual question suppose it's not related which is in our business or a judgment question but it is when you sign up for this you know as a fact  document that's produced by return path that says that there's a guaranteed e mail polyphony my understanding however is that that that involves not accused products like s and s and hotmail and not  guide that they come with that you know programs built in capability which is what that's part that's the direct infringement there it's limited to those ok you're talking about amazon and others they're relevant to the indirect infringement there against the white list themselves because the white lists the providers companies universities were using the white house and to check on behalf of something two thirds of all consumer e mail accounts out there they were clearing the white list billions of times a day and as a result hundreds of millions of e mails were getting through that otherwise would not and that's the scope allegations against the wireless themselves so that's why that the infringement structure is on the white left's we just have to prove for any reference we have for there are some pretty active drug infringement out there somewhere and here we have massive circumstantial evidence of extraordinary up a center source certified and then passes messages with other responses upstream ensuring that they get the liver the reason so many people pay for this and the reason so many people use it is that it's an incredibly valuable service by at whatever  maybe normally naya speed or the gateway to a company or something like that you know screening some off allowing others to forward it that's why this is why it is has been highly successful technology they've also made it especially easy for everyone for recipients of you know i reason the defendants say all the materials you know we guarantee we we insure you know vast amounts indeed that you know your e mails actually get through and the reason is that they've built up this network of you know standards fam software isn't you know as a spammer you know what i want to just spam people and for sure you know when i sign something i know they're going to get vast amounts of e mail will be allowed to be forwarded because of their documents say that the jury can certainly rely on the documents that say that and then all this other evidence there's vast amounts of e mail of vast amounts of use of the system and the ways in which defendants have made sure that it's true you know show that if they want to argue to the jury that you know well they were lying when the so there's assurance they can but we got a pretty good response from the thank you and good morning i want to start with actually a phrase from the last argument about the heart of the invention or the gist of the invention and i i i think we actually have an agreement on a point here had i wrote this down correctly c chemical statement was that the quid pro quo is you pay money and the accused computer quote will allow e mail to be forwarded close quote and he was saying is that the fact that maybe something downstream some other computer might not deliver the intended recipient that doesn't matter we agree completely and was that admission the summary judgment order is unquestionably correct the other part of the claim is in the arena saying it's a guarantee i'm not district court used the word guarantee a single time and used that word guaranteed a single time it said j a thirteen always the sentence being on the bonded center of this however did not guarantee that the m t a would allow an e mail to be deliver lovely means that you blessed the e mail and if somebody later regards the blessing is insufficient or there's a problem or there's a mechanical problem so be it but if the system in question blesses the e mail it downstream something to real the delivery process with respect to the accused computer in this case that's the cisco m t a the civic use computer will allow it to be forward it so in return for the payment the accused computer has to allow it to i mean let me give you an example i'm struggling with the breadth of this claim to trying to figure out just how much ground it covers suppose that i'm i'm a nonprofit and i believe there's a market out there for people who want to receive emails from nonprofits but they don't want emails from anybody else and you devise a system in which you say the nonprofits are going to pay  of e mail and i will tell you that i will screen all your e mails and you'll only get e mails from nonprofits and the question is does that infringe playing thirteen euro i want screens emails for the ones that are non profits and gets money from non profits in order to provide the service of screening and sins among the people who only want to receive emails from non profits and  in that hypothetical is is the accused service here happening somewhere actually on the route between the center of the recipient the getting control that decision so long as the result of paying the money is we will then allow that to get past this checkpoint that computer i think that would be without it once we decided to not profit and we made that decision with respect to certain should know that the key decision it's not a nonprofit or not it's whether or not the computer can determine that an agreement is made to pay a fee and i understood well i feel has already been paid by each of the people who are claiming to be non profits and what the system is promising is that they will check and make sure that those are actually not profits and that's that that's what they're getting paid for working through this work is in my mind with a claim and require that that computer wherever this is happening have an ability to determine whether or not the sender has paid a fee and in return the only needs that are going to be allowed to pay that fee are people that have been screened as to whether that non profits or others will not be allowed to enter it again i think we need a little bit more about about the nature of of of the fee and other words process right and i think the fact that there is an additional restriction in other words you can add in addition to paying a fee you also have to be a nonprofit so you're saying i'm not i'm not sure that anything agreement if you're seven times it's an explicit agreement it's on a per recipient purdie mail basis and it's a very simple transaction to pay the money the email comes through if the system starts with that proposition that is to say if you pay the money your email will through and that and the computer has to determine that you in fact have paid that money in your email goes through adding an additional screening that only nonprofits are eligible would be ok if instead the system was that there was some there was there was referring to were a number of documents where the where in describing the system were or or return path say the the system will it will ensure delivery of e mail by guaranteeing compliance with certain certifications and that sort of thing if the claim read as it reads and at the end of it it says and thereby a guarantee it might have clemens might satisfy that extra element but nothing about those documents demonstrate that there is an agreement that there was a payment made and that it's a simple binary thing you pay the money the mail goes through and nothing about those documents suggest that any of the completely separate on infringement issues the lack of any computer that and roadrunner and said that those are the third party computers for the indirect infringement plane and it can somewhat boring from the previous argument that position was never articulated district court the only thing they can cite to i summary judgment motion this is the only time there's a reference to hotmail in this and in roadrunner in front of the district court it says in addition that evidence to date show that the defendant can do to others including i s p such as hotmail m s n and roadrunner use their infringing program so those are part of that doesn't tell you what the computer is the next sentence answers that question for example the user guide an advanced user guide for the cisco m t a provided instructions and examples on how to use that's a double appeals about it was all about the computer this isn't sort of a minor plain element it's a crucial part of the claim and there was never a suggestion that any computer other than the cisco n t a would satisfy that and that that headquarters call center base and with sender base does is it calculate a reputation or for every known sender of the email on the internet so everyone in this courtroom has a reputation store and center base from boston minus ten so you never sent an email there are a hundred different factors that go into that calculation until two thousand and eight one of those hundred factors with whether or not the sender is on one of these two lists the result of that is that sender base we didn't give to the cisco impi a number plus ten or minus ten at the district court found it is impossible to discern whether or not a sender is or is not on the list from that number because there are so many other factors that it is conceivable that that number being on the list would be what put you over the top right under certain circumstances right there one hundred factors you could be number one hundred and that put you over the top it's certainly possible it could have that effect but the computer of the cisco m t a has to make the determination of whether you are an authorized party or an authorized part of the cisco in p eight that has no interaction with that list has to be able to figure out i mean if you buy their theory of the case are you on the list or are you not and it is impossible to make that determination because they don't know all they've got is a number from plus ten to my it and so again even if even if everything w accused computer be programmed to accomplish the various various claim element and as in the engine case and the fantasies which case it's based on the wording of the police look at the wording of the cla citing says exactly the opposite the user if there is not as if there is some kind of a drop down menu and you can select if it does not exist the user would have to type in a command to make it go and make that query and  had all of the spare they wanted they got millions of documents from us they get six copies of the source code of those m t s and there's not a shred of evidence suggesting that any of that is on the system or that anyone ever did that for the very simple and it's logical because sender bases are franchise needed it's unlikely that anybody ever would do it and reprogram the thing but again the record evidence shows that the computer as programs does not do that it does not have an wifeless like on a center which is news by name and if you have the current ability to do so now their argument seems to be that well ok what you have to do though is the reason that you using the software have this ability is that you have to activate it you know specify or settings or whatnot but that's that's not reprogramming write the code i don't go in and change the code i'm going to change the programming i just use it as intended according to the operating manual and a minimum was i was entering code in the my t v last time i set it up it's just that's not the way things really work in terms of their now being none of these other computers out there i mean the are some are just a brief appeal or first of these all of these ideas p s companies universities the