in your honors please the court the district court erred in granting summary judgment of not infringement on each of the three alternative theories presented by deep nine in this case first on the issue of single party direct processing and the the surf argued there that the step of processing had to be first involved initiating the process so we don't specifically there was no down workings there was no downloading stuff there well it's a distinction so it is a distinction however the the argument for downloading was that what the user had to do was to an  software in the chips the server chips in that case and that those things had to be done before the step of processing could be done and this court held that the step of processing was performed even though it was on the  end user g p s device was performed by the server or was attributable to serve what about the fact that we are the specification in describing the present invention talks about user involvement user activity so the the specification does describe in some places user involvement and in other places for example  it appears again in column six and then elsewhere in the specifications well on one issue what we cited to the district court which is to the same effect is the the giraffe a ruling that was decided by the district court for the district of delaware it's all you have cited to the to the trial court here was the was the first giraffe a ruling which ultimately got changed when i construction changed but you didn't cite surf even though it was out there we didn't time search for this purpose at that time your honor we decided however in our in our throughout the whole time or therefore the downloading would woodstock and everything would would cease yes if it's true well i don't know the answer to whether it has to occur in one concert continuous connection to other but it's true that there has to be connection to the internet for the the downloading to occur and that is addressed by the advanced structure of the network is is the defined environment that's described in the events are designed and in there to say that it's in a setting where there is an internet but here you've got to adapt the downloading is a limitation in the plane happening assuming just to mean that the end user does not stop and assuming that the connection is present from the beginning now the vid distinction that you're drawing is one that is perhaps illustrated by the two drastic through method claim of displaying to be within the meaning of that term to give rise to a divided infringement issue but where the issue where the image displayed automatically there was no divided infringement issue in both instances and in indeed in many of the cases that have been cited here being connected to the internet as a predicate step to something that is is presumed to occur it's outside the explicit explicit range of the claim referring to the authentication steps there are several steps that are described in the specification but those are not part of the five steps that are included in for example playing one of the four or five at a time one of the four or five at  and the parents that include a lot more detailed for the specification but the claims that we have asserted are ones that can be performed entirely automatically by the software without user participation instances describing mr gray setting forth opinions both on the body of his report and in his claim charts identifying the separate infringement analysis for the beauregard claim that  the district court's ruling and the briefing here that was something that was being argued and we think it's directly on point with not any authority for that we've been able to find for the proposition that before you can assert a claim for indirect infringement joint or otherwise you first have to as have asserted a claim for joint direct and what i think the the single infringements theory only in your saying oh well now that we've got our commercial we'd like to change it to a joint infringement they rely on aka my that seems to be quite different so to two points in theory and the second is that we did allege eight adequately under the under the local rules a series of joint infringement joint direct infringement we identified in our court's interpretation application of its local rules are subject to abuse of discretion however here it's our view that by interposing additional requirements beyond those expressly set forth in the applied by this court in the mit case and so in that sense too we've been subjected to a penalty by virtue of this additional requirement it's not expressly set forth in the rules and that is of sufficient air satisfy vice by pointing to the acts that are performed by the software automatically on the north device and the evidence that we cited in our briefs there was not considered by the district court would satisfy that if we it's our view that the test is not direction in control in connecting to the internet or rather direction control to the extent that what the naacp device does automatically by virtue of the software is something that is either attributable to vines and noble or if it's attributable to the north by virtue of being in the possession of the not owner attributable to that owner it's done under the direction control is part of the play then when you get to direction and control there is no directional control by morons and double over that particular step there is no direction or control by barnes and noble over connecting to the internet all cases where the with a claim language expressly required to participate in of two parties and in where it was not disputed that there was a joint infringement issue this case is one where the claim language  are done under the control of the software automatically and that is the basis for argument of direction and control ok i think we're at a time when you two minutes for ok thank you downloading via the communications network a common communications channel which is part of the structure that's outlined in the pac and yes that's an important that's important language council just said that that is a limitation of the  hearing this is an issue that was raised in the reply brief by deep nine so we didn't have an opportunity to tie for the court to the other decision  inappropriate about the court at the time of summary judgment construing the collector the b argue that what the court was doing here is just applying ordinary plain ordinary interpretation to the language of downloading which was included in the knowledge that and if they point that were interrupted this process can continue it requires the participation of the new user and in the sar case in this court was clear that that that was very different because the client in that case did not require downloading what required was receiving data transmitting data representing data when the patent presumably could have been written a different way written from the standpoint of one of the terminals and talked in terms of receiving data in the same patch for whatever reason we don't have anything in the record on that that's not how this patent was written it was written in terms of which requires that listing a common communications mature channel and maintaining an order for this for the synchronization this reverted to be completed in fact an oral argument by the district judge if nine conceded that without that the synchronization would not happen it could not and their expert conceded that as well exactly the same analysis exactly the same so we submit that if there were any additional claims that could be made with respect to the beauregard claim those have been way and any case they rise and fall met exact what are the rules of the parties involved in that joint infringement and that's what the local will requires when twenty d says if it's based on joint acts of all parties the role of the touch party in the direct infringement must be described at no point no one anywhere in the record at any time there in the eighteen months that this case was pending before the district court did deny and ever set forth any joint came out wouldn't it be fair to say all right maybe they didn't have a joint infringement theory because they didn't think they could prove directional control over our then current state of the law but given that there was basically a sea change shouldn't they be allowed to go down that road this isn't the usual case where we have a request for an amendment you're on this is a this is not a case for example where there is any claim that there are new facts that came up in discovery or that there's a new legal theory based on existing allegations in the complaint this is a case that was litigated for eighteen months under a single act or direct infringement theory that was what they consistently maintained represented to the court unlike the other cases that you're honest referred to there was no claim here or suggestion that anyone else was involved in the infringement or that there was any type of inducing class so this really represents yes it was a it was a huge change in the law but this would be a fundamental change in the pla fieri of their case and what they represented to the court and we've seen that that that type of opportunistic amendment which as a result of a change in the law on that type of opportunistic amendment should not be received the deference or is not the type of amendment that should be liberally granted i went to mit that even to this point at no point has there been any suggestion as to how they can make out and then that this requires a induced infringement requires knowingly knowing inducement a specific intent to encourage another's infringement if anything in good faith would be a defense to a specific under the circumstances of this case we think the district court properly exercised its discretion not to permit that and then letting it would be a utility it would be if utility exactly right thinking yes i'd like to very quickly address three points that have been in response the first one is that the proposed construction of downloading to include the act of connecting to the internet would actually conflict with the  constructions below in particular the barnes and noble's proposed complaint claim constructions regarding order of performance of the three identifying steps in the sense that those are required to be performed in the order recited and if connecting to the internet becomes part of downloading which is the fourth step now with jungle things up and so it's inconsistent with their proposed claim construction the next point i want to make is that regardless of the theory of to whom the act  that's conducted on the nook device is attributed it's the same technical evidence that would be presented at trial for that it's the same software and the only question is is it attributable to barnes and noble directly to the nook user honor i i will have to stand by the proposition that we believe our contentions at that point adequately disclosed both the direct and enjoying infringement series the the think there's a growing body of a slug living in rebel plating in a number of cases that have recently come out of the district of delaware specifically on the issue that post complaint that the complaint serves adequate notice for