respect to the provisional rights to determination is it your argument that there was activity before the patent issue that was different in kind as it relates to infringement then that after the pattern issued a standard two periods of time but the question is this there are two different categories of activities so if if in fact we were to find for instance i know you don't want to steal but if we were to find there was no infringement after the patent was issued and that the claim constructions were correct what impact would that have on the provisional rights determination to do different analysis all together the provisional rights involved a the protocol was to leave every one that's was clearly true but i think that the editing process that was applied and the distinction of district court made on the editing claim that i'd like on the deleting step  the dischord actually found and ruled that the leading means in this context of this particular pattern is a three part process you make a second copy of the complete game then you race the portions you're not interested in the und remove the time gaps and the interesting thing is is that that construction was never proposed by either party and in fact what the defendant had proposed was something completely different and if you look at their motion for summary judgment you'll see that they were proposing the notion that the leading means destructive editing and destructive editing is just the cutting and splicing of tape and king and moving things together to form a final condensed game that way they said we were limited to that and they submitted a declaration by joseph into real who is their employee but also a person responsible for their video editing process and at paragraph sixteen through eighteen and it's  thirty nine fifty nine he describes very detailed terms about the destructive editing theory that he was proposing that deletion should be fined as and contrasted it would be of the deletion language and in the  exactly and that was made was it not to distinguish the prior are no no it was a clarification it was not involved in distinguishing prior art and certainly  the i think the original claim they've been objected to as a vague and ambiguous and i think it was a a claim that had some issues in terms of its clarity and so that we were turning that came it wasn't it wasn't the that the pirate essential deletion destructively should the prior art the entire argument in getting this case allowed was directed to the notion of the time content that was remaining first the content that was removed and that was the basis of gaining allowance not the particular protocol or steps in the editing process by itself well so let's just suppose hypothetically we were to disagree with your prosecution history and conclude that the deletion language was a it's our position that deletion covers what major league baseball provides whether was added to avoid prior art or are and the reason that is because deletion in the digital world is understood to be the notion of excluding context we're moving content from the final edited when you delete a file on your computer what you're doing that information is not wiped out of the computer all of that that's still there all you now done is removed hypothetical that the reason for the amendment there there seems to have been some substantive difference between being english and if that's the case don't we have construe deletion as meaning something different  other i i i disagree with that because it's not just edited it didn't say edit that file it said edit by leaving only which and indirectly is the same thing as deletion when you leave only the other stuff is gone so it has to go somewhere it has to be removed it has to be excluded and when they were talking about leaving only deletion they were talking about the content not the medium it was on they were talking about what was being deleting from that existing program according certain information regardless of how you define what that certain information is that's a method that you have claimed so if what major league baseball is doing  include those two steps then how is there infringement there wouldn't be there is because they do practice deletion that's the point i'm making person skilled in this art understand the leading to me that the leading east was destroying and that's how you are suggesting to me it should be construed not removing or excluding that's what we believe it means it's means to exclude content from the final content ending up with the same difference with the end product but you didn't claim then what they did we did the end product is what that editing step results are it's not the editing step by itself is defined by what is left that's now we're talking the lower court rejected that that's their argument that's what they presented to the lower court as a definition of lesion that the lower court rejected that i understand up to a different definition well then there's that is avoiding the claim as construed right now is literally in french that wasn't the basis of the court's ruling and we have an argument and the court i think has acknowledged the weight of the argument that it's infringing on a dr equivalence because all they've done flop a handful of final outs so it has less than all final outs and because of that they are outside the scope of the claim by hampel and i asked him isn't it true that only fifteen percent or fifteen out of four thousand or something actually heard our final well that's the total number of games that included all final outs but the games that don't have off final outs just fifty four outs again and there's a number of games that have fifty to fifty one outs and so they've dropped a few of those two to avoid that literal reading of the necessary of all final pictures is what the requirement is and by doing that they are practicing four zero nine four one zero zero which is why that's probably the second the last three be different case but it is evident in the red brief that we submitted there are numerous references made in the arguments that really aren't supported by the actual factual record the absence of with respect to infringement there are no new clean constructions being offered by the judge if palin says to the judge referenced this objective idea and strictly objective and there is no support for that or that record but i would direct you to page twelve of the read three where we identify point by point what they actually said in the prosecution they not only said and they admit that their process  claims to include an obligation that the method be objective rather than subjective we didn't use those exact words but that was precisely answer's no no we didn't ask for that the court say this is an objective method that the work construe the claims to require that certain to criteria was rude was in every game right so you asked the court to construe the claim to require an end result that included certain criteria but there was never a request that the court draw the subject of subjective distinction i think you're correct in that we didn't ask you those precise words i think  that the discussion around what the term substantially meant in the claim construction hearing on markman was whether or not substantially allowed some discretion as to whether or not all the final outs had to be permitted and so when instructions that you have given to your editing personnel i mean it it certainly does feel like this was a a study effort to design around this fact and the question is whether or not it was accomplished i guess by but we in the beginning you didn't have all of those subjective requirements for your editors did you think there is no record evidence that there's no record evidence of of how the editing w accomplished prior to two thousand and nine because at the time the provisional rights decision had come out right and we had there was already an no issue as to whether or not the inference in two thousand and two thousand and eight two thousand and seven so there are repeated statements that we infringed for through two thousand and nine there's actually no record evidence to support that what we do know is that you know the provisional writes the policy underlying that is we're supposed to find information in the public record to help us determine whether or not to avoid the claims and so here there's sort of a backhanded argument that apparently if major league baseball advanced media tried to avoid the claims they did something wrong because the district court properly stated if we tried to avoid the claims we did something right that's what we're supposed to do and by the public notice function that's provided in the published claims that indicate what claims there are attempting to get we know whether or not we can infringe those claims or whether we can avoid infringement but i think the record is also clear and on disturbed that major league baseball advanced media was the first one to come up with this idea of condensed game there there was a this is though there were some some sort of attempt to take the invention of the inventors here but what the clear evidence shows is a we don't infringe we don't delete substantially all that we form of a creative cut and paste  whether or not an autistic process to determine whether or not all the final outs were in there but the evidence that when i guess my problem with this is and you say that you cut and paste yes and you create something just some point you ought to have to make sure that you don't the evidence that facebook has pointed to is the fact that we have an editing process but there's no evidence of the record that says that any deletion has occurred as a result of this editing process what we know is that the games are generally created to know how the auditing process works right and what he testified to is that as part of the auditing process we go in and we make sure that all of these subjective requirements of it satisfy and we pull things out if they don't satisfy the subjective requirement and that fixture that's exactly mr kaplan is testimony in that regard he did identify that there was an auditing process to make sure that the games were being edited correctly because there had been a total of fifteen games that were identified in the litigation as having included all of the final outs contrary to what the decisions were to the editors but the instructions here just eliminate reaching out to their detailed instructions they point to a report we just looked at the testimony of mr masters i don't agree that mr markey was identified as a competent witness the judge said that she would reserve that question as to whether or not he was competent but we pointed to the decision judge dyke that you authored a quick test made particular reference to the fact that you needed competent opinion testimony based on a linking and testimony right on a limitation by limitation linking testimony that says i have reviewed the process that major league baseball said is that they follow you know we identify the specific software that we use early on in the litigation the specific software that we use for editing there was no effort by baseball quick to identify that software as not including the deleting process you know i again deleting is not something that we hit the ball on during discover we specifically said we need kind construction that has the deletion concept because deletions important and we don't believe said in open court and we said the following testimony by witnesses who said we haven't a creative building in the process will rebuild the games as the games are being construed and so the idea that they didn't know that they were going to have to come up with evidence of deletion either on direct infringement or interactive interactive freidman just doesn't follow through from the record here what we see is they  argument was advanced in the reply brief it wasn't advanced in the opening brief it also certainly wasn't fully developed of the opening three but i think what was significant is that the summary judgment hearing played have told the court they weren't sure what standards should be applied and that eight thirty six ninety one to ninety two so they can't now come into this poor and argue era based on the broadest reasonable construction when they told the district court we're not sure if you should apply the broadest reasonable construction standard i don't think that it matters at the end of the stay what standard you apply leave only there's no reasonable construction of leave only to me and leave not only the only six it is pretty clear on its face in terms of what those t the exact language doesn't have to be the same but the school in fact must be identical it's not the scope is is not substantially identical the scope is identical and slim ford says that explicitly and so that i do see that misstated sometimes in district court decisions and so i point out that particular point i think there's a reference by the disc to my baseball quick to publish them survive and ten in their reply brief i would say with published prints five of ten are irrelevant to the analysis this is a claim by claim process you don't get to add up all the published claims and see whether or not within there somewhere is something that appears didn't cite this exact language will be definitely cited this provision and they say there that at least one infringed claim in the published patent application must be substantially identical to at least one claim in the patent it's a claim by claim  just briefly the provisional right appreciate for two minutes there are specifically the it was reasonable construction was presented in the lower court and we think it's the one distinction i haven't seen a case on it it's interesting  construction and that should be the right standard for analyzing it and here as it relates to the term substantially farm and that term in the wage used in a later claim you use for the exam or look to claim five ten and then look at the language leave only claim for you couldn't construe it as so narrowly as they are tempted to do so now because those additional dependent claims would now be a problem there wouldn't be consistent claim differentiation and the notion offering the edited recording for subscribers for viewing and of course the kind of claim aig had that language delivering to subscribers so often to subscribers delivering