six cases before should a tulum have been submitted on the british and our first case this morning is adaptive versus apple inc fifteen dash fourteen forty one which russell you i think of that that is correct that this court has not directly and clearly grappled with that i think that you know the parties have offered this court to frameworks for lies and the question one is the one that we offer which is to ask who controls and direct activity after this course decision an argument we went under either frank because even if you accept the defendant's position that the consumer should be seen as performing the method steps that are taking place inside the phone we should still be entitled to show that switch but i want to be clear about this the the method the initiation of the performance of the method is is it initiated quick when the phone gets a pinging from a shelter hour or does the phone on its own operate in the network and operate in most they don't infringe it only infringes when the base stations are operating a motor three then struck the fund operate a motor in the van has to do it and it only happen in that circumstance if that cell tower base station sends the when the user plugs in the lamp or one but that's again not going that i think you would in that analogy still say version of i turned on the lamp before i got plugged in it's the person who is controlling the lamp i'm responsible for it being turned down but here to be clear all the things that the customer does simply connect them to the network and it doesn't preordained that there's going to be infringement because it's the friend of some cells that emphasize that the network can work in other modes that don't infringe the patent now if we disagree with you way there's one actor that performs one stap and one after that performs the other steps that's not your situation but you're kind of taking akamai and saying that it also applies in a situation where you're performing i mean controlling the form and some of the math ed through i think if you will and also by having particular software in the phone they will automatically perform the method one a occurs when all the steps of the method for the claim to method are performed or attributable to an entity the supreme court expressed the same understanding in limelight and monarch and i was before the court that it's two one one seven that it that the under that rule the other person is attributed either because the defendant actually reform themselves or because he directed or controlled others who perform and there's no reason to have a different rule for a defendant who controls all but one of the steps through his control over another person then it enduser as performing the method because they own the phone then we say that if you're going to go down that road we have to be able to show that the defendants control their customers under that they are my principle because they condition receive a benefit that is access to the allow the carrier to conduct tests and do anything like that about visitors or women's are not in the market and i don't up kind of an arc i know the answer the question but you know that this year i don't think you know how come i has departed from the idea that you can only control through a contract and share as a practical matter they are able to control their users because you cannot use the phone on the l t e network if it doesn't respond to this command by performing the method just doesn't work and as a matter of fact they kind have consistent with that i think it's fair to say that they can different access to their network on their on the users using a phone that they can control and i think that under the rationale of and under the underlying principles a court of law that it arose from it's fair to say control of the system that is different than now could be from all the control of devices performance of a method in both cases it's fair to say that you know when somebody that somebody can use and nothing remotely through their control over a machine that they do not possess that that you think those cases support our position indirectly because of what didn't happen in that case those cases have happened here and erickson for example this court made the point that dealing with manufactured that the wife i rather see did not control the writers after they had been taught there's nothing that they're doing that they're taking the additional step of sending the actual instruction to the device to practice the method and so i think action would have been a very different case of dealing retained the authority to tell the wife i care for when i have to practice a method and when  used or who was using the computer legal reason is true seventy one a b and c all refer to whoever uses it's a person and so they've identified the person and actually adapt let's say you only you own the the phone you possess and you own and but you're not you're not initiating the performance of the method you're your pawn in this thing in this is where i think that's within the control of the user the user actually then has decided to use cellular communications rather than wife i for instance the user actually has to go one step further and casually enable the handset to use l t e there actually is a portion of the handsets that like to disable l t e because it is a power hungry communication method mechanism and it can and it also that is one that would require a mode one working with a record because the record reflect all of that's the best when when the average user purchases the device from  the store is it set in l t e mode and does the average user leave it on l t e now it's not in the record company but what is in the record what's the question put to their  our brief that threshold said have to be met and then about three requests can be sent but the thresholds involve the communication of one information them fall of the number of cases so it seems to me that if you look at the steps of claim one or every single step of claim one begins with the subscriber unit every single there five steps every single one identifies who the person what it's very close to symantec who does this court decide it is one of the three cases that i think answers your r s first question in symantec it's you're sitting at your computer you have a virus detection device but the dires user not the server if we are that the carrier here which creates the step in the middle if it's performed at all is actually the equivalent of the server both for your example and  infringement claim they said today there is no divide infringement argument this is just a direct infringement i commit and so if you look at the steps of claim one the only place the carriers mentioned is in the third step and it's providing information that will be used by that will be used by the handset that's exactly what happened in symantec so in texas of driving the closest of the three cases to your the fact that the device could be an elegy mode or not was a fact it's in the record below and it was an important fact because that actually tells you a little bit about who is in control who isn't and i know isn't it that this is one of those this one which is compute where you still keep you all the time the answer is no and are there good reasons for i'd like to ask you about claiming i agree with you that my question probably doesn't matter then that there is no dividing infringement but as you know they disclaim provided infringement follow they also never argued claim separately below and they have facts said specifically below that all the claims of the steps are performed at like this where the last immediate step for the method was some sort of initiation by the accused infringer what's your response to that if your i think i don't think that's correct i actually erickson is is an interesting the result of the meetings of many different minds of many different disciplines and the implementation of standard involves the baseband manufacturer of this a star manufacturer the base carriers the handset sellers the users all of them they actually i think it's your question precisely is when you look at the divided infringement cases they compare or contrast the concept of multi parties acting independently this is multiparty second independently soon ericsson the carriers the handset sellers a t c p t c now hold because users they're all complying with the standard right but no one of them that's controlling the other so i think we have to look at the specific elements of this claim when if i were to use it and interesting thing is their light switch turning and the requests for mode three is that's not part of the clinic right they claim as we said if we ar starts with the subscriber unit but what they've done is they've gone back just one step in the process and said well here's a request that's enough to control but if you go back further in the process i try to do  funds your question it's quite clear that most of the decisions if there are decisions that are going to determine whether you ultimately have a military request are actually in the hands implicitly keep counting your arguments in terms of control  and if control is the issue then don't we have a material issue of fact in dispute here and you who has control of that we won't devise your i think ip using control because that's where they have articulated their argument the subscriber unit to do something that is something the handset unit is being used by the subscriber it's use in operation which i think i hope i i  little step further ok that the phone itself is not the infringer or a potential infringer correct the device it absolute that's exactly i mean the statute says it has to be who i think it's whoever so now we've got you're right i think not i mean that's where they try to articulate it and i think i can give you these three answers essential inquiry is who is using the device to perform the method and the user of the device to suppose  i i a buy the phone and forget about it go get another one and then this one is left there i'm not saying that i'm not possessions but i suppose a performance of the method is still going on control has been injected in the case because if you if you consider judge great walls at the district court footnote where he addresses the control argument the argument was that he rejected the argument correctly we thin that merely selling the device to perform some method it's enough control under their concept to in france and in fact of the three cases he cited two of them were affirmed by this district by this court after he decided the case so it was he was focused on use and responding to their control and what we're saying is just to say this one is used is the right concept and if you think about assuming that that we were we were we find that control is the the factor here would you say that we would have to send this back to to the to the court that there is a material fact in dispute no you are for this method that's it a six six nine four two nine five and it's a typical iraq a transfer there are a lot of objections but what you'll find by omission there is nothing there about the yeah i think that's that's correct your honor is but if you look at the right transfer so the progression is tell us since you're focused on control tell us what the evidence of control there's information there about controlling other exists request you to do you're going to class it in direct infringement and direct infringement and awful lot of circumstances and i think given what this court has said about the intent required under global test whether what fit which today is captured by there are doctrines to capture all of this if i'm the user to be more precise i'm the direct infringer if i and use the user two people performing the steps under what circumstances is what a direct infringer those three doctors those four doctors direct infringement divided infringement inducement contributory infringement actually cover only generally control of the device they've now abandoned they own and possessing part and we are going agreement that about control their position is controlling the device in general is sufficient our position is you have to control the aspect of the device which is running the method and that although it sounds like a small difference it is and then critically important because in our increasingly interconnected world we all have devices that we do not exercise complete control over and it's perfectly understandable that a cell phone company will want to control those aspects of a cell phone that are necessary to make it work on their network but with that response to that control comes responsibility to make sure that the operations that they are controlling on the phone for the devices performance of a method patent but we have both but that those results are consistent with either their interpretation that we just attributed to the devices on them or to ours because in all of those cases the end user was doing the that immediately triggers the performance of the method for example in symantec downloading files from the internet which is what triggered the performance of the virus scanning method on the computer so i think you know you're going to have to figure this out programmed by the company there's a company that makes it and the doctor program sent specifically for this individual they put it in the person they implanted and then the person has a particular episode in their heart acts in a certain way between the doctors programming and the way that it was set up by the manufacturer it goes ahead and shocks the heart under your theory of control who controlled that and who's the infringer well i think that's the right question to ask is who controls the actual performance of the method involve the doctor being able to remotely instruct but if it be later to shock the heart because that they think is having a heart attack i would think the answer is clearly as the doctor pushing the button telling that if you later practice a method how is that different from then from the doctor there may be some difficult questions of of who is controlling the device in some circumstances but i think that's why we think that referring to doctrines of proximate causes ahead the fourth thing to do here because all the defendants have pointed to in their example of all the things th for cause and lead up to is device being on the l t e network but that doesn't preordained that there will be infringement because as i said before the defendants have emphasize that you can use a phone in l t e mode on their network without infringing the pa t so long as they have not collected to use mode three on their base stations that decision is the intervening cause and just speaking proximate cause terms of the infringement and it's there are specific instructions to the device to practice the method that is the final most direct and within our view the most appropriately viewed cause and of controlling how the performance of the method patent and that makes perfect sense here because that these defendants are far better situated than anyone else to know and to figure out whether the operation of this device in this setting in this respect is violating somebodies patent and to take steps to avoid it they can just operate their base stations in another mode in order to avoid the infringement and we think that that is what congress would have you tell me that think if we adopt a position that we're going to create a play havoc with the in the in direct infringement law you know i don't think it creates any more havoc than this court's decisions and direction and control of a person is as direct infringement and know once a day it's going to go ahead and perform them right i think that's a more difficult case because but that's not this case because here the phone will not perform the method unless and until it receives this instruction from the from the carrier you may have other cases in which you know you would have that scenario of the preprogramed device i think you can easily point to rico and other places that said look we've already held that that's not direct infringement here and you know this case i think it's involving an important but narrow set of circumstances in which the device is being controlled by another person remotely and it is a question of control it's not a fact and here maybe make my last point about the record when the district court said that there was no factual evidence of control that was based on his misconception legal misconception but what conform means in this context there was ample evidence in the record of all the things we've been talking about the fact that the method is performed much we think the party for the argument