court the district court's fundamental error in this case was in its claim construction of claim thirty eight it analyzed claim thirty eight animal and the specific language parameters being provided to and that claim as simply a characteristic as opposed to what i think is the appropriate way to reinterpret that which is that it is a limitations on the climb and i think the easiest way to understand them because only you know the language can be read i think in a variety of ways the undertake what i view as the more holistic approach which is to look at it in the context of the patent prosecution the other claims in the case in the specification and if you do that i think the price the prosecution has the most clear in terms of demonstrating that this has a temporal limitation embodied in it and on to five one seven nine of the joint appendix the examiner rejects these claims as indefinite on the basis of that they recycle previously received pre processing grammars since the claims are not shown any previously received rammer prior to the pre processing step such claim is indefinite and in response to that what  went through and changed all of the language including the claim that we came clean thirty eight from past tense the present tense they kept some provisions that have a true past tense component in them at just as they work but they change everything else during the dobber hearing as opposed to during the clinton structure do nothing description because well absolutely we argument all along was that the timing of this is absolutely critical and the reason you know that is because samsung obviously puts the frame for the parameters on the phone weeks months maybe even years before the pre processing is implemented on the computer implemented methodology so we said all along that that temporal component is important now to be sure we focus primarily on the preamble on the specification because that was the that was in our mind at the time the single biggest part of the invention where they came out with this ability to just happen immediately and go right into the a characteristic that that's the way he would read it i don't i don't think he really did business with the prosecution history which we cited to him both in the coin construction and in the and in the j mall but he basically just said you know i think being provided to can be run any of a number of ways i don't think you perform the function you expect this record to perform respect the claim construction which is to set out the meets and bounds you know the whole purpose of this is to provide notice somebody looking at this and particularly same song looking at this and seeing what they did in response to a very clear rejection based on past free processing being provided and see somebody go in and adjust the entire patent to provide for temporally present pre processing as the mechanism and then read the preamble that says that's the key to this is to be able to do it during the computer implemented methodology seems to me that the meat and downs of fairly are clearly defined on that temporal basis why the judge missed out i don't know what was the focus of your your argument was a little the terms receiving that collided too which would be passions as opposed to being provided to well i mean we i mean we did we did all of those things but again i think it's fair to say judge granted that the primary focus at the time was on the on the preamble and using that as a limitation on the entirety of rule thirty eight and all we're doing here frankly is essentially what the court i think recognizes permissible under oath too which is if you start if you have laid out for the district court why it is that that this ought to be interpreted temporally as of the time of the actual operation the computer implemented operation you then permitted to go through and find additional arguments that support it to be sure we didn't do the claim differentiation portion of the analysis that we put forward in our brief but the truth is it all hangs together so you know the argument with grief is it's clear there's no doubt about that have i'm having difficulty in in understanding whether you made that argument below whether it whether you waived the argument to making that whether you waived it you know we clearly did not waive that what we said to the district judge at the claim construction throughout the trial and in the j mall was that there is a temporal component to claim thirty eight now to be sure yes we we focus primarily on the claim construction on the preamble but we also cited them to the to the prosecution history and he didn't find the preamble persuasive and he concluded that then he didn't have to go any further in terms of being provided to meeting any additional interpretation so again it seems to me we're talking about said exactly that you're making essentially the same argument you made before you just dressing it up in a different car and while it wasn't specifically in response to a waiver point it was simply there was a waiver argument made he did not obviously i that he was just explaining his analysis of what we were saying compared to what we had said before and so it seems to me particularly inappropriate for this court to come in and say there's been a waiver when that issue was presented to the district judge and the district judge was offended by it because obviously the whole purpose of this exercise is that we should laying in the weeds and wishing the judge he didn't feel that way he thought the issue had been properly put before me just didn't agree with us now if we agree hypothetically with you on this question but not on the other issues he recently got to anticipation of a day or infringement on the publication trial like this is no connection with a motion for a new trial i wouldn't you know i think i think actually the right answer at this stage would be a judgment for the for the defendant under the circumstances because there is no evidence i don't think there's any evidence and it was certainly not guess that assuming they were operating under the different claim construction you're right they may not put on any evidence but in fairness to them they didn't think they had to put on certain evidence assuming they had it you know i think that i think that's fair i don't think they have any evidence because i think i think the proof is quite clear that samsung even if even i mean most of this is all put on obviously in korea but even any of it that may have been put on in the united states are still put on well before the reprocessing process under is undertaken by the cell phone itself but it's a fair point if they have evidence that they can put on presumably they would have the opportunity to do that and then just another question about this being provided to argument i've had this kind of puzzling and trying to get where the real source of your argument is that it's really on your reading of the claim or is it more on the claim differentiation argument looking at the other claims and and the various verb tenses use and i i well as i said i think i think the claim can be read comes primarily from the history which explains where did you know where did this language come from because if you just had this language in the abstract i don't know what you do with it but when you see the history and the specific rejection because of all you've got as you know you don't have anything about parameters in the sleeping through and modified everything to limit this problem this was not an accommodation to the to the exam and this was a recognition that there was a problem they didn't have any evidence of past grammars being put on the whole purpose of this invention the preamble tells you is to be able to access these on a real time basis while the computer method is being implemented so when they're using the past tense in claims thirty six and thirty seven and asserted that's about something entirely different about something entirely different yes it is fundamentally different and again i wonder why is that because i mean there they specifically use the term parameters are provided and because under those circumstances they were provided in the in the previous which is he takes usage data which he can't which he has no evidence from any scientific basis correlate tend to value and immediately correlate to directly one to one on the value others of of this particular feature if we agree with you on that even if we agree with you with one of the licenses we're still left with disagreeing with you on whether or not the real license with appropriately consider isn't that a slight sell just saying  i don't see how you could get anywhere near fifteen million dollars on the run license alone i mean it is like if they started well i don't i don't know what numbers i'm still a lot to talk about offense but if you do it on the rim license at that license has comes nowhere near the simple usage and convert it into value and using his methodology if you do it on the other features means that five hundred eighty six percent of the value of the telephone is on features other then uses that as a telephone i mean this it's a grant a one time once and and that covers a past and future license or you have to have it said that knowledge doesn't say that what it says is that you should you should grant damages on the basis that will fully and fairly not just for past damages but for future to have it as well when there was no distinction made and anything presented to the jury asking them to distinguish path well don't you think i mean i mean the law in this seems to me be to be very clear about whether the future expert testimony that he mentioned that it put but it doesn't seem to me that there was any explicit argument anywhere that that was actually the theory you were proposing to the jury well i mean not only do we have an expert who testified on that well i don't think we call it future that what he said was you would you would enter into an agreement to pay for the entirety of the use throughout the entirety of the use and the settlement agreements themselves specifically say it covers the entire period of the send it back and say you need to reconsider whether this was intended to be a future license as well well i think the district court already made that determination because they raised the issue of what to do with it as a future in the district judge specifically said this jury had in front of it evidence that a lump sum includes for the entire period of the patent and reach the conclusion that the judge said under the circumstances i don't think there's anything to send back to the music jury has made it as clear as possible the nature of the royalty i guess statements that are mentioned in my friend in the briefing pertain to other claims that had different wording those claims recited pre processing based on previously received ram and the examiner rejected under one twelve indefiniteness saying well you mention in these claims as a claim drafting exercise previously received parameters but you have to have an antecedent basis for somewhere else in the claim that you've expressed with claimed of them and so the applicant acquiesced in that and amended those claims on that under that specific language but the claim in this case which is application eighty six crying thirty eight was in the original plan and it didn't have the previously received parameters being used for pre processing what it said was said parameters being previously received were being provided excuse me i think it's clear that being provided is acting as an adjective in this claim and it modifies the noun for ram and the issue here is not that some of the successor took the position we don't have to prove and of course we have to  if i was had a claim for hammering a nail into the wall the nail being galvanised right the action is hammering the nail the user complete settlement method claim with the hammers  about whether or not it's a characteristic but seems to me being provided to one could clearly argue is different because it's not a characteristic right i would the words are different but if you look at the cont is provided to the to the client yes that is exactly it and so the way the invention works is when the user visits a website the program is put on the user's computer that's when the premises are are provide then the user may or may not choose to use that page or that website to upload images at a later time there's no temporal limitation it doesn't say you have to do it right away you could sit around for a long time it's also clear that the parameters are provided well in advance in the in the preferred environment the only environment of the actual pre processing going on so in the context of what does being provided in this claim mean it means the future in the previously if that's what it means and that's consistent with how the environment the is but if on the other claim languages that use the past tense or haven't been provided isn't there a distinction to be drawn between that and someone just construe statutes when they use different language suggesting that they're talking about different things we have passed in other cases well if that's true but i think if you look at the language of this climate connections or other claims some other claims step this out as an active step of math we would say you know for instance receiving premolars right here there was a choice to me this is a method claim that's written on the context of the written around the client device right to use th for that sets out the steps of the first receiving the preprocessing parameters secondly receiving an identification of what photos you would show up third pre processing the solution which moves and finally transmitting those where provide what state of the messages that referring to this is referring to is receiving from the client device free process content that includes and this is a claim that's written at the so these are method claims and this is a computer implemented method but what they're doing with the joint infringement issues you have to make sure you write your claim to cover the steps all performed by one act thirty seven of the claim that is written on the server and they're looking at it from the server standpoint receiving from the client device this pre packed this pre processed digital content that was processed in accordance with preprocessing parameters and so that's why you know whoever is working at the server would be implementing thirty eight which was a sort of in this case is written from the perspective of the clients of the computer or  what thirty eight says is you've got three steps you initiate at the client device a transfer secondly three process and third you transmit when it talks about pre processing it says the parameters having been provided by the reason now here's the critical point why do we shift birds here in other words why does having been provided not and acted step of the  you want to write a claim that all the active steps are performed by one user which is what this is done and what samsung says is they don't dispute and they didn't dispute a trial that they do provide parameters that was never in dispute argument was at trial this is an active step of the method we do it in korea it doesn't count because it's not in the united states our retort to that was number one no it's not an active step it's an adjective and it's an adjective that modifies the parameters because it's not an active step to korea exception doesn't apply because we don't have to prove this step is done the united states we just have to prove in the record that the samsung phones are all updated in the united states prize part of the routine update system that we're all familiar with for operating systems on cell phones and so that was the proof under either they said the preamble essentially must all be done in one computer program and they wanted to try to limit this method to be done being done in a single executable and the district court rejected that finding that there wasn't grounds to limit this to being all done  language we have been discussing of having been provided is part of the computer implemented method and that's all they asked it's part of the method and the method only it's the only computer program that was their argument now what's happened is after trial and on appeal the argument shift shifted but the district court here is you know considered the question of waiver and really said they're just reshaping the argument these are the same thing  is the point that has never been raised at the district court we didn't really join issue on whether this is an active step or not but we don't you didn't from the jury and it went to verdict and i'm not saying that you can't decide based on waiving whether it's step i think that's fair game but the more critical limitation to that since time is now trying to advocate for is that there is a temporal limitation what they basically want to say is now not only across all the phones fourteen dollars and fifteen cents and then the expert testified that data is a proxy for what the value is in other words the fact that these phones are ubiquitous cameras means that in aggregate consumers value the camera capability at fourteen dollars or greater or you would see them being manufactured in that's the starting point and down the surveys are used then to reduce that number based on other features of the camera that we try to segregate out such as  you know people video but don't take pictures next who shares pictures and who doesn't and then next who shares by m and that's with text versus sharing by other ways that weren't used and so the balance you is not in the service the value is interestingly the peer review i think would be discord because this court has set up that there is an apartment to do in a portion each case has its own case so you don't see princeton experts take the confidential information cases and put them out in an article for review a lot of the peer review cases that we see that discuss this really come up in the context of a pox report cases where an analysis is done and then the question is well with this peer review that we can rely on but no i haven't seen peer review articles on the use of of these surveys for smartphones the answer you're right is no as far as peer review of this court's methodology i don't think that's occurred just because there's really no purpose in doing this th the the question wasn't framed to put to the jury in sufficient detail that they could have awarded a lump sum that would exhaust future infringement there was never any projections introduced by the s i think that defines what the difference is between lum some and not right he said jury presumably we can assume that they are at the end and that and in this instance maybe even believe them these are the two alternatives put out here  answer to is yes but they never followed up with the second question which you would have disagreed with which is and all are all well sums doing one song is a term of art that gets used and it can be for a lump sum deal for means converted to a money but it doesn't answer the temporal question but to judge who's point is if you're if you're confused about it in other words if it could go either way obviously the standard is the district court abuse its discretion vertical if you feel the judge did not abuse his discretion then the remedy is to remap for a new trial damages because the jury has obviously done more than it can do given the instruction the verdict violation of the or future infringement is even cognizable was injury issues i think typically that is vested in the discretion of the district court on an equitable basis the jury deals with past infringement and damages and on the future looking fundamental difference judge is between thirty six and thirty seven as i think my colleague explained it is that all of the pre processing happens in the past and the first sentence of each of those claims says has been pre processed by a client device and then it's as  well as received i think it's fascinating that my my friend over here consistently changes the language of crime thirty eight and said at least four times having been provided which i'm sure if they had braced that language when they wrote this claim we would be in a we were we having more of a discussion of publication and other issues and we would on having been received but having not raised actually it's absolutely clear you go back to the history that what the inventor did in response to the rejection w change everything to the present tense and the reason they did that was to make it absolutely clear that this was going to be implemented in the computer implementation methodology described in the preamble that all falls into place frankly it is amazing how well this  lines up with that particular theory the entire or additional language in that claim limitation is said preprocess look around matters being provided to what does a said refer to the ones that the device itself is is reaching out for i mean it's the ones that are that are that that you know it's the general description of pre processing it's literally and it's all the pre processing that allows you no no that's clearly not going back to thirty six and thirty seven that's just just talking about the pre print pre processing parameters generally that are described him and that's a that's a term that's used throughout this invention was just talking about separate from the most it's not some subset of them dealing with something that had already been provided so it's absolutely clear because you know this language and thirty eight says digital you know this is for preprocessing digital content now and all of the language is thirty eight is in the present tense i say all lines up to my mind very very cleanly i did not understand my colleagues response to the question of how do you get from use the value i don't understand what the vet what the cost of the of the camera inside phone has to do with anything that remotely suggests whether consumers attach any value to this simply because of the use and i'd i took as answer your question just use it there is nothing that really connects us in value and there is no allocation based on here's what the camera cost and we're going to look specifically at different usage surveys well we don't have anything specific but this looks pretty good what more would you require to get  you're going to require the patentee to go out and and do all kinds of scientific evidence to come up with this and the panda has the burden of proof has to demonstrate real damages do you use the you know damages have to be to find that person isolated or where the line yes well no because first of all a surveyor it's not going to say the survey is not going to say you know what what chris you know what how many cents would you value survey to customers of of the cellphones and do you value the text messaging or not and then give them three choices a lot or none are just so going to end up with some kind of the same approximate is their usage a fair approximation for how much they value it i mean i would assume that if somebody uses that a lot they're going to say i value it a lot and i assume if they're going to if they don't use it they're going to say they value and i'm not saying what but it's simming he's called my view to all the experts and he said you know this is really hard to do it and my best estimate for what value is is to correlate it with usage assuming it's all tied is that a and then and then he would have to demonstrate that the doubter hearing that somebody else has ever you know that there's some scientific basis for that other than the other than he just made it up made it have to be a scientific basis for it and there isn't just just two seconds on the on the across a field you know you asked me specifically about the testimony sixty four fifty three men want describes a lump sum license that their expert sixty four seventy nine been won again and the general  sum payment is paying for the use of the technology without hindsight a lump sum payment goes in the licensee because they're bearing the risk of commercialization and then are our experts testify on at seven seven zero eight nine and seven zero nine zero zero specifically it's my opinion that this should be a lump sum one time payment that covers the entirety of the of the patent and that's what and that's how he describes a lump sum payment a jury made that determination not an abuse of discretion if a court the size of