briefing the claim structure that we are addressing here in the district court addressed is essentially a digital content file comprising three elements digital content requires the three elements to be part of the digital content file but it does not limit the claim itself or the digital content file we submit to just a single file or discrete unit phrase where in the dynamic license database is associated with the digital content file we said then we are going to do just record it does not mean literally that again the three elements have to be with i you have a problem with drug and reduces construction of file as a collection of data created as a unit in a file system not its construction in the claim construction so that construction as such you're fine with your concern is how he ultimately applied that construction in his summary judgment order that's correct in his summary judgment order he stated specifically that in isn't necessary to to be correct or incorrect because in the end there is nothing in the acute products that can be deemed database at that point in the pre installation phase as i understand it nothing in that courts claim constructions are applications of those claims constructions are are not needed to send them and then if i and then if i were to agree with that then the summary judgment could be affirmed whether there are two issues there or not if you first of all the software for creating the database that exists on the installed version on the user system is in the  as a collection of records i think the information i don't remember the exact definition but my recollection is that is the general gist of it and we do refer to that in our in our present so  our expert testified that with respect to the infringement issues relating to the so the i have so file that there was in fact a database right on the disk image or in the disk image consisting of those records and license information which was contained in those records which then were installed by user the software created those various stores don't exist yet they exist later that's so because in your theory it's because the disk image version is capable once installed of creating those stores and therefore there's a database are there it's capable of being a database and so therefore you should get credit for that under an infringement well i theory is essentially what  in the software but let's just say not active at the time ok and just to try to figure out what is the scope of this appeal let's assume for the moment theory based on the installed version of the accused products preserved what is your argument for why either both of those theories are actually also possibly having a file because the data is there and it's treated as a unit and then he said in the foot no that your footnote was an improper way to assert an alternative infringement theory and so therefore he's not going to consider it any considers that way and then he cited authority including our own smith kline beecham opinion which says trying to assert arguments  issue and but both experts addressed the definition of judge injuries in his claimed big structural ruling in other words a collection of data treated as a unit not and can compass the possibility of smaller files being part of a file ok and you may well be right about that as being a defect and you may also be right that his construction of the dynamic license database was not quite right either but nevertheless i read his decision as pinching on the fact that the disk image file of the q s products lacks a database and so to me this case then boils down to really the question of whether your ericsson argument is is right on the capability question if so far as the disk image is concerned i think you're correct but i don't i don't see that we waived our literal infringement argument the installed version was treated as a unit so hypothetically if and expert report contains say four infringement theories but then in the briefing only one of those because this is a hypothetical you know that i just said that the judge have to root out all possible infringement theories that could have been made in that actual briefing but wasn't actually articulated and then conclude ok i need to address these infringement theories too because i see the expert is meandering into other possible theories and i think that's that's this is it just pressure of the judge to to proceed on what's presented really that the question of waiver is something different in the sense that the installed version had it had issues of fact associated with it in terms of the experts disagreeing and whether the windows and office software was treated as a unit so on summary judgment that's an issue that that we did address we were dressing primarily the  file image and during the summary judgment hearing counsel for microsoft conceded that not only the ideas of file but also the install file on a was based on not only the capability of the software to create the database but also the fact that there was more or less an admission by their expert that windows in office despite the fact that it could be multiple files was in fact meeting the definition of the court speech going on claim construction which is a collection of data treated as a unit think this issue is not one that was properly presented below there's a lot of issues in this appeal that work really looks like drudgery andrews fully addressed the whole question of well he did too to the extent this ties to their argument based on com true the two cases counsel is focused on here now the fantasy sports of her side of two different cases but you look at any of those and all of those cases the language was critically different than the language of the claim that issue here those cases specifically had language of capability in the claims of the first sata soph where case for example the language was computer instructions causing a computer to implement something so all you had to happen was the presence of computer instruction that if executed would ultimately be something that's not this case this case requires a digital content file that in fact has certain  recited function to occur it isn't in it depends on which point in time we're talking about or which infringement theory we're talking about for the plaintiff if you're talking about free installation ok as a matter of fact the microsoft products do not have yet the alleged database they have software which if installed and run can create the files that are alleged to be the database but the claim my point is  in judge andrew's point was the claims in this case require the database to exist and to exist inside the digital content file that is not true pre install asia and so and so they're trying to draw this analogy to first shot and fantasy sport and say well but it's close enough if that mere capability existed and the answer to that question with respect is no it's not enough because the claims here say that the thing in question has it has to exist it's not a question of it can be created some point in the future fantasy sports is to the same effect i won't run through the sort of the facts of the case i can but that was a means for doing something and all it was required by the claim was do you have these means present in the accused device whether or not the user ever in fact invokes them or uses them then that's a different that's a different situation than here i thought the next issue based on the questioning that might be useful to address as to whether the post installation issue is it is even really on the table here that is it is the cases as your honor judge noted the disregard court found waiver that that was not a theory that was fairly presented below and we've really gone from if i can sort of come up to a slightly higher level the one the last page you know i think it was it was fair of a judge introduce andrews to find out it's not an abuse of discretion thing yet it still doesn't matter because post installation everybody agrees that windows or office both are a collection of many files many many many files individual files each of which has a name and if one would agree there are separate files and so even if you look at post installation that doesn't satisfy the court's claim to structure the file well  court claim construction file as articulated in the market order did not get so glued to the possibility of say smaller files being part of the file it that's correct because as i said it was simply a collection of data that was treated as a unit in a file system treated as a unit in a file system but here's the difference if there's a file system directory and there's something for example that said windows and then you looked at it and saw that underneath that folder for windows there are a lot of different programs and sub folders and things like that but not treated as a unit by the file system so here we could  be arguably a unit as such when you look at it very well there isn't any evidence of this record that big directory is treated as a unit by the file system in fact if you look carefully at the testimony that they cite from their own expert it's very courteous very careful in his phrasing when he talks about things like the windows directory and says well the directory sort of treated as a human because when you actually install and run windows you know we can all agree it's performing the functions of windows and so that's treating it as a unit and never actually says it's treated as a unit by the file system and so there's no evidence on this record that idiots but it was or didn't begin getting to the license monitor and control mechanism is made up of files and so if that thing can be made up of files and that thing is part of a file why can't the definition of well i think now edging actually what the patent says which is you can have something called a container file or an installation file which is a file it is a single file and within it it can contain various other entities or it could contain data it can contain other files but in that form you have one file you don't have many files that are treated individually by the file system you have one file and when you run that file or execute that file the contained items get extracted and separately installed and then you have separate files each of them is a separate file that is treated as its own unit and this process is actually explained in the patent in college i was in column sixteen caring over the line seventeen and so that's critically different than saying any collection of separate files anywhere in windows can be referred to as a file because you're sort of all there that's a very different it's a very different creature and in fact this is the very reason that microsoft never disputed that the pre installed lation finally what counts what's referred to as the i s o file license monitor and control mechanism and then the database well i mean the short answer is it depends on how they're implemented the digital content file can be a single file yes the digital content of the digital content file can be a mechanism and then us about the database that could be implemented databases a single file sure you could microsoft doesn't do that microsoft has a collection of files which which is alleged to be the database i mean i don't know if this is even needed if if we were to affirm the installation for them but i guess i'm just trying to figure out and explore with you the possibility that maybe there are instances where a file can be included smaller folks and it sounds like yes that can be the case that absolutely can be the file and judge andrews looked at that and said well that's right but that doesn't say anything at all about whether when you have separate files that are not treated as you know by the file system that those are in file within the meeting of this cap it's actually said in his summary judgment opinion in claim construction judge andrews framed the dispute at eight fifteen as i mean the dispute between the parties was whether a file required a discrete named entity on the one hand which was microsoft's position or could be construed to cover a collection of files and the other which was via text position that was the entire reason this term was construe ok and he of course said no it can't my construction is a collection of data not a collection of files a collection of data that is treated as a unit by a file system treated as a i rejected this position explaining that the patent never refers to a collection of files as a single file and so i don't think it's fair on this record to say the judge changed his mind you also rejected your proposed construction  case because it prevented it still prevented by attack from having any viable theory of finding a digital content file that has the required things but the required database installation and say well gee all of those things together constitute a file and so we can find our database on that side of the equation they were required to find the database on the other side and it doesn't interest them if you go there and no other reiterate that the claim construction ruling by judge andrews was a collection of data treated as a unit and i emphasize treated as a unit during summ judgment right he says in his is summary judgment opinion that the rule that i don't claim construction that the file meant a unit quote unquote that is  literal infringement in the post installation filing i would first say that we base our arguments focusing on the i s o file because of the court's claim construction of the dynamic license database residing in the digital content file in other words on claim construction judge andrew is required that the database be part of the the digital content file and in the footnote i believe the court was referring to we essentially said that post installation the the we weren't giving up that that  that argument