service system they also as a consequence we say include the concept of a domain name service that is what the claims say on their face it's a little bit the the instruction o the court is a little bit as if you took the words court of appeals for the federal circuit and then instructed the jury that it doesn't include a court it doesn't make any since it's a visitor matter does it matter that i think i'm looking at the right page twenty seven fifty eight dollars what the judge told the jury was you were instructed that the construction for going maintained service system an element of all the asserted claims of five before two hundred and eleven dollars does not incorporate or include the court's construction for that term greatly rahner because because the court adopted that conclusion and gave that instruction we were precluded from putting into evidence the not infringement defense that would have demonstrated both to design around and no one frenchman a domain name server service as defined in the st case as consistently defined requires return of an ip address the focus of the st case in this case is something called the have you'll tell you why that's right it's incorrect the st thing is the we should focus on what fanatics claim is the domain name servers so set aside for a nd the claim construction or let's assume that it there is a other portion of the product that would allow you eventually to a real a server or a direct independent protocol to make a call doesn't satisfy the limitations the claim so the argument that was made  is an argument that is unrelated to the allegations that were made at trial so there are two problems for next the st on this is they would have you conclude that the phrase domain name service system does not include the two main names from that service that makes no sense as a matter of the plain language it is inconsistent with the specification is inconsistent with judge davis's rulings previously inconsistent with the manner in which their own expert testified in the st case and your honor it's in fact inconsistent with every action by all the parties until a sudden all of a sudden be correct construction of the domain name service didn't include the return of the ip address now i think there are two things that would indicate you that that's a problem for  the st is there is really no substantive argument made to you on the claim construction issue there is no substantive argument to support the concept that you can kate domain name service system and make  completely irrelevant in consequential the nd is that they're part of human that we care that this doesn't require a reversal as to the face time products and i should say it's important your honor because the face time products degree but there are products that are subject to revenue base time they were not in deep you know the man so you have st a claim construction issue and consistent conduct a consistent target patient and it's consistent with the words it's consistent with a specification it's consistent with george davis it's interpretation and it's consistent with the st trial and it's consistent with logic and common sense which you i did ample propose this construction to jeff davis actually i thought my recollection is that they proposed it you propose something without it judge davis said i don't need it because the rest of the claim did which is that the domain name service system had to have a domain name service so mission your i respectfully that's not correct had that and required war and both parties consistently where he made his interpretation and he said it's a look up service that returns an ip address for requests to domain name to the requester that's what everybody lives so you have before you a climate or potations that is incorrect as a matter of law inconsistent with the claim language inconsistent with the specification inconsistent with a contract part and you have before you an  bay it is a error of consequence because the revenue bases for face time and v p n undermanned are different and because the jury rendered its  and voter verified its vote its report was correct and all invalid at the defenses were part and parcel of the same voter verified would have come out differently as a matter of the are that's that's that's the argument the reality is when you have a five day trial you pick your best offenses and you try them and if you've tried them you should be issued for credit but if you have not tried them and they're between the board proceeding and and the district court it may as you have argued be awfully close to being declared soon by the board to be unpatentable under the and if it's patently interesting the combination of the x y decision and the the student and the ohio will of the decision give you a very simple and compelling logic which is this if you have a claim it's patently instinct on to man claims again we designed around the claims are very specific they require three different things the right choir and terminations they require something happening in response to the true nation and there require being automatic we took that out we start doing it there is no infringement thank your honor we'll give you thank you and please the court i'd like to begin where mr lee began which is whether or not a d n a out of the d n a test the domain name server system necessarily incorporates all the features that are found in the traditional domain name servers such as to return server might or would it's not in there that is a very telling omission and in fact one of the critical elements of the invention is rather than doing what an all our domain name server would do is return something other than my puter s and that's the  item to comprise an indication that the domain name services them supports establishing a sewer secure convention communications like so what happens is it gets a request for an ip address but it doesn't give one back it gives an indication that the system one or more of the four elements of this claim one is actually inconsistent with it being what you would call a conventional cns by which i guess establishing a secure communication link inconsistent with returning an ip address not it's i'm not saying that it's inconsistent because there is a dependent claim which sets return an ip address and after that it was claimed five when the traps main want to require it to return a network across think looted explicitly in the dependent click this claim omits it entirely and omits it even though the st three elements the st things being connected to a network having a party of network name domain names and receiving queries are things that typical don't mean the conventual domain in servers do all the time those would be completely superfluous if this ystem had to do and had to have everything that a conventional ip addresses it gives you the indication that this system supports secure communications links it's inappropriate to go back and say well we're going to read into it if further limitation it doesn't have and require it to do everything answer we think is yes and it's for actually a much more direct reason and that is that obviousness was actually litigated in the st trial apple tried to remove an asteroid dismissed without prejudice of its  obviousness counterclaim and the district court said no and said it wouldn't and the reason why is it wouldn't agree to dismissal that would have that apple would not agree dismissal that would have the same wouldn't have the same effect as if we tried it to a jury and the jury returned an adverse finding in the co or judgement on the finding of st apple so apple tried to withdraw its counter claim of obviousness and the district court said no and when the district court says no you can't withdraw it you have to try it and the case act the issue actually was tried because right up to the part reference that apple was pushing during the trial puji if you're to take a look at their expert port which is that twenty eight dollars nine cents a lot to answer the broader question ok and the broader question is yes we think that at least when you're talking what it was right on time they would be free to bring up more of what i think that having not read it before and having had it come up on appeal and not having after one hundred and one their demand issue on that but i think in some other case if you're looking for issue prior reference they're referring to q is there both as an anticipation reference and as an obvious reference as a single reference obvious arguments and when they're putting in future trial that's an overlap with the exact evidence they're cents per unit regardless of the amount the amount of infringement and there was considerable overlap so even if you don't infringe too patents rather than one the amount was the same and under catalina lighting likewise it doesn't really matter how many patents are in french one infringement was walgren you can remember down as the plaintiff's option to either retire at the remit or down to the number of the unless there is genuine uncertainty about what the jury actually i don't i don't think in this case their pen be any genuine certainty because if you look at apple's page twenty seven dollars they admit the jury used a of fifty million dollars units and so it doesn't affect the verdict as dramatically as well you're saying it's agreed that the b p m is a subset of the face time and it's also agreed by how much i think the record is clear that both experts based on is invalid so i think as a matter of law what matters here and with when asked for application collateral stoppel collateral stoppel cannot apply can the difference berms and those burdens make an enormous difference so specifically with respect to clean five of the two we can deal with correct but i think the ant the answer is it for collateral stoppel it's not you have to take the burden and proof into account for patent declared invalid this court has three times and it just so i understand your view is that even without the final four you have four hundred and eighty million dollars and this judgment yes that's correct because that's what would remain based on v p n on demand alone and so even without the five before you just do a ministerial calculation and the numbers still four hundred and eighty million dollars but some point article courts to their decisions have to a meeting at some point they have to become final we can't constantly wait for the next hour p r which can be brought by anybody there's no requirement standing to bring in i p r and wait for its outcome and after nine years of litigation and four trials it's time now is that time apple gives us no reason to believe that this standards for a stay and the standard of stay are such that it would simplify litigations has her will be met if we sit around and wait for yet another tribunal to go through this and we actually don't think this  after apple's had nine years to get these invalidated the proper answers for the courts to pass on the case and make the decision article three courts are here for a reason it's their job is not superseded by that of the p t o and it's certainly not superseded by the p t o based superseded by the p t o i think i think in principle in fact in a practicality that would be a horrific result if the court has no further questions it looks like i'm past my time i'll be happy to address keep you know on demand briefly if there is an interest in that but if a court has no questions cases it was a determination by the p t o applied to a district court proceeding it's been done before and the last point is this just trying to it's not a ministerial act while we agreed that if infringed it would be a single rate we said a trial that if it were true patents it would be a simple right but a different right if it were three patents it would be a similar rate but a different rate so it's not a ministerial complication of what