mcauliffe i represent liquidnet the fact there is no basis in this record to limit the claims from accessing to the reading of database records liquidnet is entitled to the full scope of that term including a scope that covers the accessing techniques described in the specifications one such technique is the sending of commands to an a p i over a network the proper interpretation of accessing must cover that technique and any interpretation that doesn't is legal error the invention here is not accessing the database to mariners co inventors never claim to invent databases or how to get information from well it seems to me and you started off by is not not different than what you're telling us to claim the know what is in your honor and in the specification when it uses that term accessing it specifically says one can indirectly access by sending commands to an r sending commands to an a p i i would not be reading the records so the question is what does accessing mean in the district court to originally agreed that one of ordinary skill in the art would believe it to mean just gaining entry to change that interpretation to reading in memory there was no basis for doing that for example there is no disclaimer here and the district court found th the situation where the district court read the violence through the specification and identified some statement where the patentee said well i've mentioned doesn't go that far that's not this case there's no definition here this report did identify any definition in the baton documents so tell me again i'm still struggling with the language i pointed to the claim was accessing all records of open borders from a database whether that  records monitoring the records that reference there can only refer to those other operations on the records it's simply a shorthand for saying accessing the records of the database and indeed if you read the rest of the specification it's entirely consistent there is no disclosure here your honor of any operation of accessing a database that doesn't actually get into the records that's not in the specifications every time they talk about going to that database  so the this sentence column three lines forty nine to fifty two can only be read to me accessing the records of the database the district court heard by by limiting this claim to a single implementation the the what what this sentence says the direct accessing of the of the database but there's another disclosure  database and yes the records of it can be accessed by sending commands to an a p i that's what the specification says without a disclaimer or an expressed definition that claim language should be interpreted to cover those techniques that the that the inventors explicitly stated in their specifications could be used with the invention the basis that the district court relied on for adopting a more limited view confirms the air the only basis articulate it is is the teaching or description of the figure seven in the specification now that figure describes certain functionality that may happen in certain environments that says expressly said in certain environments this can happen it never uses the word accessing it never even uses the word reading it just talks about retrieving information from a database when a trader logs on to the electronic marketplace that's no basis for limiting the claim or accessing to cover simply the direct accessing described in the specification and exclude the indirect accessing also disk was described in the specifications i guess i'm a form of direct access in the district that was error this must be construed to cover both of these sets of functionality because the inventor said you could do it either way that what was that is what was meant by access the district court's interpretation is inconsistent with that teaching in a specification that excludes the embodied with the inventor say you can do this just by sending commands to an a p i an application programming interface litigated here use the accessing language the district court's interpretation revoke that amendment essentially and second guess prosecution councils action that's an well i think it's modified your honor that what gets generated are non binding indications from the access records of orders that are suitable for transmission so what is getting generated is from a subset of all records that are accessed so this that occurred after whatever comes back from the database and it may be a subset as even the example of figure seven expressly said after records are retrieved from the database this generation occurs by its very terms it's only on those that are suitable for transmission to the electronic marketplace but you have to read all the excess record you have to access the records you have to gain entry to them first and then you generate these non binding indications on whatever is retrieved after that entry or hook it can be generated without waiting  saying your honor it's what general gets generated gets generated off of what is retreat and that can be some subset of what the system actually gains interest is that explain anywhere in the that i think it figure seven  is which out there is a filtering module there's a piece of software in it says right here it could be done on for example security type as an example and that i sometimes to read the retrieval does not constitute reading the record blow was undisputed what the content of the record is i would say it doesn't it doesn't constitute reading the records in the database maybe i should be more precise i think you're right filtering process would have to read something and compare  but i thought you were referring to the reading the district court required in its claim to a petition which was reading in memory required reading of the records in the database i think that i think that filtering is an underlying step your honor i don't think there's any question about below what the construction should be gaining entry to the district court in her claims instruction orders clearly stated gaining entry to and reading records so this reading records notion the district court had from the beginning in her favor destruction order she in fact quoted that exact same sentence in the summary judgment and if you didn't mention it to records you have to read them in the court is correct you would not be able to do the other steps between if you don't first read the records you can't determine which records are suitable for transmission without reading them and looking at that figures figure seven description and column eleven with the what the pattern calls for is maybe just perhaps sending all of the open all the records of open letters to the t m or perhaps just some of them you can't determine which if you're going to do some all without reading those records going to step two with the coin you have to generate the non body indications from the access records how can you do that without access and without reading the record excuse step four of the plan calls for periodically determining if any of the records for change how can you do that if you haven't read the records so the left took accessing all records in the lead line from the access and all records which write into the database to all the records so the file history is consistent with the context of the claims as well as the specifications database that's the stuff that comes before access any records for example in the help that i mean that there's a man's acuity here and on the line that that was pointed out to us well the only time in the specification that it talks about records it absolute limit i think that will help to tie this all together i think the district court summary judgment was proper because there are no facts to support accessing all records of open orders it really doesn't even matter what access and because there application programming interface that's housed within their clients almost database so that's not a pulse of functionality that's not pulse of soft what we also have to the testimony from pulses expert jim does even though there's no evidence of any particular of any specific pulsed integration and how those how records are accessed on any specific integration mr konopka he has experience in the field and talk at a level of abstraction about how the databases work and the pulse system pulses only only accesses or only as we turned us seculars that's all they can trade on the electronic marketplace it's undisputed that in all no the database all records of open orders are going to few that are relevant to the search that is how these database operators write the source code and that's how they that's how they access records that is why the district court summary judgment opinion was correct there is no evidence and that is pulse customer sets up a web server which is a separate computer has a record set their pulse communicates with this web server so now there's another intermediary between pulse and the on mass and the public even further away from accessing all records of open orders so looking at haven't even articulated the theory of infringement these web server implementation that statement and the record evidence the only record evidence of this is mr canobie who said the exact opposite that searching an index would mean you would never access all records of open source if you only want us ecuador's they also say if there's an unindex sorry you would have to lock the tables and search every single record while again there's no evidence of it ever happening and the record up evidence is the exact opposite mr konopka testified against under but of testimony he end liquidnet the district court really really nailed the issue she said we're looking at bill to do is confront the issue that is the stored procedures that are owned and controlled by the own messes vendors and pulses customers and not of access and he records of open orders that point continuously to pulse a stored procedure guide which is a just a general overview of how a pulse works and all this disk rot is the format the pulse would like to get these records back there's no evidence there's no evidence that the a p i can read access any reputable than waters so i would submit that this whole argument about whether the court changed the claim construction or whether the court's claim construction was correct or not is really a red herring it doesn't matter how that i would like to address here to that the core construed the term non binding indications to require further from the back should this further action has to be a negotiation in the court explain that to be in the goshi age at a minimum you have to be able to have the capability to assent to the terms of the other side straight to the undisputed facts of the pulses two modes of operation called auto x in conference can't assent to the terms of the other side's trade that is quantity you would like to trade and you had if it goes into the marketplace and at the name implies it will execute automatically you don't take any other action it just gets executed for confirmation it's very similar trader set the quantity said the delta marketplace but in this circumstance if there's a match if the marketplace find a match it'll send back a pop up window there's a trader and the trader had the opportunity then to adjust their quantity and then either to trade or go ahead with the trade but same thing once you hit that button again it goes back out and if that match is still there it's executed you never know who's on the other side of the trade you never know the terms of the other side terms the tree so there's no way the specification everybody in the specification required to go she ation not only that but specification described negotiation and the disclosure of the invention section that led off by calling it the present pension so that specification but the court found the most powerful evidence to be in the process there in prosecution examiner rejected liquid next claim under one twelfth he was in definite examiner then said my understanding that non binding indications contemplate negotiation and response from the remarks liquidnet clearly stated that your understanding is correct and the purposes of and the purpose of non binding indications is seven that's exactly where the district court got her definition but what the but what the queen that has done is cropped out the back half of the district court's definition it doesn't take the whole thing that talks about negotiation so if we're going to use that as the definition then the whole be negotiation at a minimum you have to be able to accept the side of the other side strip the terms of the other side's trades that can't be done and undisputed facts show that cannot be done in the block process and just quickly on the why there was one other alternative route for affirmative joint infringement i think that collapses into what we're saying on the infringement side that since pulse doesn't do one of the access committee records it can't be held liable to join infringement case because you can't access records without this third party impulse doesn't do it and there's no evidence of it ever happened for example the joint fortune case and also no matter what the standard for directional control is if that's and or changes  order to access database records one must repeat them but he doesn't have anything in the record to support that his pulse polsky uses the same technique described in the patent for accessing sending commands to an a p i if it so marketing documents say it sends non binding indication to electronic marketplace it even markets itself as a less expensive liquid the district court said he didn't infringe because it doesn't perform these low level database operations of reading the records even though the undisputed record said for accessing they're not required the proper interpretation here is the one that covers the direct access and describes the specification and the indirect accessing the very function the post does sending commands to an  if the court agrees with that and interpret the term accessing to mean gaining entry to the case have to go back post has not even argue except today briefly at that is entitled any judge but under our interpretation its opposition brief was reading reading reading it never said it was a title the judgement didn't matter of wallander gaining entry to because it can't there's no dispute it does sent a man to an a p i and to a web interface and that should be sufficient on summary judgment to get my client to a jury now even if the court  not agree with us on the interpretation of access and believe that the term requires reading in memory as a district court modified to petition the case still has to go back read in the database or an index which is created by reading all of the records in the database is accessed in either of the situation all the records are read in the database and we have put evidence in the record to support the finding that pulse is legally responsible for that activity those stored procedures are created under an implementation agreement between pulse and its customers that references a specific technical document the stored procedure guide where polls defines what information is going to come out of that database when those commands are sent from that evidence a jury could find that the customer is being controlled and directed both in the design of these these stored procedures the software programs and then when those commands are sent in that activity it's pulse that is reaching across the network come and controlling and directing that computer system in order to obtain the right information when you say that indexing requires reading of records it that would be something which would be historically the case i suppose database you don't have to redo the read at that point when you make an equally correct that's exactly correct runner however the accessing step is the first step of the claim and there is no nothing in the claim to limit when it occurs there is no temporal limitation nor is there any reference to sending a command and then accessing it's the first step of the claim the fact that it happened at the reading if that's what the claim happen before that