if you need to give whisper something to mr lieberman at some point you're reading you know may and again i think it's important to look at the procedural history surrounding the arguments that are being made on appeal it's important i think to note that in the pre hearing grief submitted before trial mike the microsoft only said one limitation was missing from the apple movie and it was quote electronic mail scale scheduling request object the only limitation they dispute but the l g a sound more and there's we don't have a basis for saying waivers so what support this well that no evidence points i guess your honor it if you look at the evidence at the dr lock testified that was there and then microsoft's own expert dr smith well you have to show it necessarily and always there if you're don't you if it's not get software called the new connection utility you utilities software comes with the new it resides on the desktop yes and but the whole point of this is you synchronizing with the desktop the new is your theory any different from the proposition that if two devices think there must be something in both that well more so they could make that happen and whatever that something is must be simply accept the synchronization i mean it's the it's sink component is something that permits as in the claims an object to be synchronized between two different devices that's all examples seem to do the same if there's any level of activity any of the direction of initiation of command i don't see that configured to synchronize individual objects stored on the object store the global device with a remote object stored on the remote object store that would be the desktop computer so it's very general in this talking about an object and if you look at the direct evidence that you get to use when i i'm reading that language and hearing a lot of what judge toronto said in that language it's a comp component well i rather than just the receiver that and i'll accept your synchronization if you have to get if you happen to get in touch with me but i could cite the evidence i think shows the last in the blue brief you hit the button it synchronized what was in that the act of what testimony is there about how that is accomplished well there's our expert there is i thought it was yeah i thought it was just the picture where you stablished a connection whether by wire or wireless with the connection utilities the thing in the desktop and is that anything other than affluent treating the peripheral treating  step well admitted lee that picture doesn't talk about how the software works but the user manual that describes the functionality of the software specifically talks about how the newton let you synchronize so for allowed synchronization to take place the question is if if one does not accept the proposition that the synchronization component is by definition always present in any two devices that can be synchronized what more is there and i'm not sure that there's any more evidence any evidence of some greater functionality something that moves it to the active side of the active a seven four one seven board as quote keep your application synchronized by updating information on both your computer and your newton p t a the crime language here is not requiring more than you have an object and you in addition to the anticipation argument the but just by looking at the patent itself and reading the background of the invention section the patentee has admitted that all elements that are being cla claims are being asserted against us existed in prior art microsoft software that is commercially available now the ministry of law judge says no first grand factor well either was confused or thought we were eyeing a newton aren't that of other art but in terms of the scope and content of the prior art if you look simply at the background of the invention of discretion in the actual patent it there admission that all of these elements of schedule plus are the same they match up directly with the clients with one exception the preamble of the kleins which does mobile device in addition microsoft expert admitted your honor all elements of the claim were in the schedule plus prior art we started that extensively as of work remember we were all elements except except the mobile device right so i think this is a patent which in which the inventors say we've been doing all this stuff on desktops of the time we now will be great if we could do it on mobile but there are serious problems to overcome in being able to do what we all know we would like to do it so what is the priority that nothing in the spec says here's a prior art that has the technique in it for that stuff for combining in order to solve the problem a obvious we recognize problem that's what was needed for graham step one well there's if you look at the problems that are damaged by it in microsoft's brief none of them are claiming the exception of the global identifier claim to so they talk about these alleged problems but there's no claiming of a solution all they claim in the elements is the prior art with a preamble that says on a mobile device so they haven't invented anything if that's the case they haven't claimed what they're saying is the solutions all of these problems i would submit this is classic like leap frog where you've got memory increases computer v p you could increases all these different things they didn't invent increased so that you're able to now do this technology on a smaller computer a mobile device i don't have a plastic leapfrog but aren't the cases those cases don't they all and they all involve some measure of proof that going from one venue to the other was easy to do it was easy to see how to do it so that and that was the critical part and that's but it doesn't appear to have been presented in any kind of discipline and organize graeme factor based way by your proof well i think that for example you look at leap was well known that you could do this with you that's the part it was well known that you could do that it was that isn't that what this package says was not well known and it took some some real world inventive work to figure out how you do that on devices that were at limited memory capacities in which there was a problem of about overloading with flick of messages and i forget what the other well none of us clients i go back to that i mean you do few invent something you honor you have to clean it and you have to you know it's the whole bargain you've got to get your past you if you come up with something new and you have to you have to claim it and limit yourself to the solution and that's not what has happened here every single out these things you're talking about are not in anywhere in the client and so i go back to what we look at the claim what is the invention or are these elements in the claims what is new and simply saying on a mobile device is not an invention i would submit and if you look at the claims and limit and hold on to the actual elements of the claims and say what's new in these clients that this will be   ation involves it's a complex process which is very demanding on the computing resources it involves comparing data on mobile devices and or it may be various degrees of activity but still it should be some participation of the mobile device as opposed to just communicating at the lower level of software because you know me shift to the anticipation site now why does that button on me apple newton that says synchronize why doesn't that indicate com one hundred well there are several reasons well one is there is no such thing i mean if you look into the claims and if you look into this but i mean if it's no question there's no there there not not only identical  but there is no place for these types of you know manual procedures he in the claim they're talking about computerized process that doesn't include any pretty sick patients or over an individual you know pushing the buttons but then if you just read the news in connection utilities use a manual itself you know i tried to was reading stuff but yes i think it may be useful just maybe two sentences and then it will make it and the schedule provides that can the economic problem be met by investment in a calm tone and of the article protected by the  belief yes your own because just a composite yes it's a component yes and there may be different components i'm trying to kind of predict the next question we can put it into the streets they may be practical components that are more related to the p thing is that the statute which doesn't speak to the technical components the physically or an economic component seems to use throughout the same phrases the same phrases with respect to articles except for the for the economic problems are started with the target in plain language and i believe the judge locked in one of the first who came up with these terms and then they became more and more common and now even the sport is using th balance our time on each side cranking your honor let me start with obviousness up what we have here is a situation where and the packets offer cites desktop software desktop personal information managers can do all this stuff wouldn't it be great to have that on a on a mobile device that's what the patent says the patent goes on in columns three through five to enumerate well here's all the reasons why this is really a problem why it hasn't happened yet and why it's difficult to do and then the patent basically comes up with a solution now  mr verhoeven argued that while the quote none of the supposed allusions were claims let's not write in fact the each of them is if you can find in the claim language claim one requires a synchronization component claim one and six address the database i don't think that there were there was a counterpart to that in the desktop part because among other things you didn't need it the whole point of that was to do address the limited storage capacity of mobile devices and so you came up with this abridged database that then would communicate with the or need amendment that for obviousness even if none of us see how two solutions are in the cleans that the prior art collectively ha claims a that's wrong and b to go to your point your honor i don't think there have to be in the claims there's nothing there's no case law that says that every detail of how you get from point a to point b has to be in the claims the point is that to get there you had to invent or had to overcome obstacles otherwise this solution wouldn't work and that's at the core of the obviousness inquiry so i don't think there's any case law support at all for the proposition that every you know every step that you are every obstacle you had to overcome the way you did that has to be in the claim so i don't think that's true that there's no record support for that if you look at motorola's brief what they cite for this proposition that you need to have a synchronization component on the mobile device in order to synchronize is the patents description of the patented invention that the patent the specification lays out the preferred embodiments talks about having the sync component on the on the mobile device and that's what motorola cite for this proposition that there must have been a sync component on the newton and again originally they said it was a new connection utilities and they abandoned that position then they point generally to the newton operating system the two point system two point zero but other than saying well it enables communication which is a purely passive sort of thing it is not the synchronization component required by the claims which require a synchronization component configured to do specific things so it was there a clean construction of synchronization component that that i guess full stop was there i don't think so i think it certainly there was nothing that anybody disputed i think it was just taken as you know the  term in the claim synchronization config pardon me synchronization component configured to synchronize objects on a remote data store with the other data store because you heard the discussion earlier about the active passive the aspect of synchronisation comp on what vest supports your active version i think two things your honor one is to claim language itself and it says it doesn't say  synchronization component that allows synchronization or that response to requests it configured to synchronize on its very active language and then if you look at the specification and mr robin referred to the specifications description of the synchronization manager a couple of problems with that one is it was talking about a specific embodiment second even in that discussion the discussion of that embodiment it makes clear that this synchronization components are playing an active role and then if you look at how i'm eighteen you're the bottom of that column and identifies it refers to i think it's items ninety five and ninety seven and figure five and it says those are the synchronization components in the and the synchronization components in that figure include the synchronization manager so even accepting that you that if the synchronization manager is doing all sorts of important things it's part of the synchronization component and in the embodiment that's being discussed so today and in his briefs focuses on largely on claim one we think he's wrong about that for a variety of reasons we think the commission got that right but there are also four dependent claims that each independently would support the exclusion order he doesn't address and his breach claims claim five at all there's no suggestion that any arguments for why that would have been obvious point six there's minimal discussion and it's not responsive to the testimony at the at the here are the testimony before the commission and asked according to that's the globe one that requires a global identifier the argument there relies that really on a misreading of the specification specification refers to schedule plus two point zero which according to motorola had a global identifier but it indicates that schedule plus two point zero was an embodiment of the invention so if that doesn't establish anything about the content of the prior art it can issue a very it i guess technical question and figure five where it says sync interface component there's one one hundred and one one zero eight are those the synchronisation components ninety seven and ninety nine so it's to the specification appears to be identifying that whole blocks each each of those whole blocks as the synchronization component so which which includes it has the subcomponents but at the specification also indicates that this the sync interface component does focus on that in a couple of places that it's playing a very active role and that's on the mobile device you referred to the sync manager a moment ago just as in both places but doesn't the spec tell us that and reside only on the desktop no it doesn't it's isaac again in a particular embody meant it says it can rely reside on a mobile device or on the desktop or on both but again that was  particular embodiment and here where you're talking about the sync component it's quite clear that it has to be on a mobile device and it has to play an active role now on domestic industry let me just touch on that very briefly  here the i agree with mr lieberman that investment in a component of six certainly a significant component like the operating system is investment with respect to articles protected by the patent also in this case the the judge essex found in the commission affirm that microsoft really was involved in manufacturing these devices it's not just putting a component a shop that somebody goes and buys and works actively with the makers of the hardware or to integrate the operating system with the mobile devices i'm interested in having you address judge pro surlier question the language is the same and yet there interpreted economic and technical wrong are interpreted differently well frankly your honor that i think is a is an example of a situation where over time sort of through an iterative process over time the commission has has possibly gotten away from the language of the statute if you go back if you start a hearst principles and just go to the text of the statute you're be hard pressed to find a technical prog and economic problem what you've got it ends up subsection two it says you have to have a domestic industry relating to article and i actually think although in her digital does talk about economic and technical progress if it really takes i think a more integrated approach not with that there's not some sort of a rigid barrier between the two where something that can be a protective product for one isn't for the other or there whether some difference between the relationships between the investments and the industry ah so i think if you go back to the language of the statute and certainly the intent it contemplates a much more  your counsel for microsoft said well the synchronization component with respect to the newton in anticipation argument synchronization component is if you didn't look at the spec and there's very much there's a lot of detail reason there was no claim constructions within disputed below but if we're going to incorporate the spec we have to construe this claim in a more limited manner which will raise not investment issues so we can't just import from th day and construe synchronization component more narrowly than what what it's ordinary meeting is we can't add the limitations of that spac and say well we need to interpret this have these specific details from the spec that's the whole point of claiming is you need to be very precise and you need it and if there's a dispute about it you need to construe it or swear in this difficult area of whether we're using the spec appropriately and not to enlighten th claim or are we importing limitations i would say how would you help us with that in this country if you look at the claim itself it uses terms that people who are in areas skilled the art will understand it a synchronization component will computer scientists understand what synchronization is even laypeople understand synchronization is and it talks about what do you do in your synchronize again object and people know that could be an application or there's some sort of program picture no i don't think so because as you just heard figure five depicts the manager and both both places but in the spec it says doesn't have to be so you know that's you can't you get run into some real trouble if you start after the fact importing limitations the claims are borne mclane construction process and if you do change the meaning of the claim from its broad plain ordinary meaning then we have to go way back in the sest where those additional limitations are found in the pews technologies that can you talk tough for a minute about the portion of your priest hearing brief that's quoted extensively in the commission's brief and i guess it's quoted there for the idea that when you were still contesting the infringement you said that there are in fact could be synchronization even without a synchronisation component in the mobile device well the short answer is we abandon those arguments and we stipulated to infringement and those are not of richmond arguments and we shouldn't we should be permitted to do for the synchronization component and if you look at the just the regular meaning of synchronization component and by the way there is evidence as to what a person who are very skilled in the art would understand that synchronization for the broad communication protocols that in the software would need to be executed on both ends of the connection i e software being executed on the new message that in software being executed on the desktop computer and microsoft expert was presented and depicted the evidence he cites to below you don't just you can depending on that element as well correct answer no i believe i do not and i further asked them the the one element that they were challenging if that if he's wrong on that don't dispute that neat mantissa page claims one five and six right answer i believe that the only limitation is the new yes that was a record below your daughter's so you take the plain meaning of synchronization component