not anticipate one critical claim construction error the district court made in denying a t i s motion for jama well was to limit the claims to specialized graphics hardware the district court said for the first time in the gym a well ordered the claims were limited to a computer system off the computer system operating on specialized restoration hardware that allows for high speed interactive rendering through a graphics pipeline these words specialized rasterization hardware or high speed interactive rendering are nowhere in the claims there is no word of claims that could be reasonably limited in this way and certainly the term computer system in the preamble cannot require specialized high speed rasterization hardware there are no words of manifest exclusion anywhere in the specification limiting computer system s g i's argument importing didn't your experts say that the frame buffer was hardware based our expert judge ritter dr patel said to my recollection that these claims and in that the framebuffer may be hardware based but also would cover software in other words that speaking that the patent could speak about both hardware and software in fact  paid references open g l and render man or what's called an interface which is basically teaching hardware and software how all to interact with each other and how to operate and so dr patel was always interpreted these claims as involving will hardware and software surely never denying that they covered hardware and the harder it was being spoken about but that the computer system was much broader than hardware along another procedural error in the district which jim well opinion was when the court adopted but but this is a jury case the jury then would have had substantial evidence to find that the frame buffer w hardware we have we your honor had a motion and limited excluding any references to specialized graphics hardware because we knew that this argument would be made emotional and it was held in abeyance numerous objections were made throughout trial to these arguments in cross examination of course that's going to be an abuse of discretion standard unit tell us that this magnificent district judge abused her discretion your  against you on one point abuse of discretion is against you on the other you're really wrong up upstream i do understand that your honor but i also we also believe that to to pass such a finding on these claims with the quarterfinals for the first time in general well that rasterization requires entirely floating point scan conversion it was not the construction that was in front of the jury for the entire trial nor was it the construction in the jury instructions notably you're wrong about this wrong and i believe there is some consistency but i believe that the court for the first time in jama well to find that rasterization required scan conversion entirely in floating point was wrong because the district court had previously found that rasterization involved translating and filling in and while scanned conversion was entirely in floating point scan conversion was not a part of rasterization ever throughout the entire trial so i believe that under hewlett packard vs must that it was improper for the district court to adopt this construction after a trial to deny a t i s motion for jama well i will now move to the issue of abandonment eighty ideas peeled the district court's dismissal with prejudice of the invalidity counter claims that related to patent claims that were found not infringed on summary judgment the district court found a summary judgment that twelve claims from the three to seven pat claims to be abandon the court had to have jurisdiction court did not have jurisdiction and therefore a t i s counter claims were moot and it's your position that the court didn't have jurisdiction because in the absence of any one thing anything clearly said no case or controversy remained and hence it was clear that there was no jurisdiction remaining with respect to the claims that were found on fringed and that the only conversation if there is no jurisdiction in the paper planes went to miss is just to dismiss without prejudice just something you never asked the district court to do and i'm wrong about that and i don't think the court is wrong about that in the discussion that preceded the trial i cannot point to the record right now where we did that after trial because the court's jamma well ruling came down and when it came down same these counterclaims were banned and i was shocked i called the court immediately request a briefing on the issue and we've been briefed the issue and there was a subsequent opinion on the issue in which we believe there were three serious errors that the district court made in that analysis on the abandonment issue which we point out in some detail in our brief one of one of those errors was that the district court indicated that we had not discussed prior to a ruling that we could go forward on these four claims of seven thousand nine hundred twenty two and twenty three that it was that the trial was restricted to those four claims and that's just been borne out completely incorrect by the on three claims construction rulings and a ruling regarding an implied license i'm in a license to finance those asserted as an affirmative defense in this case before i go there though i'd like to identify two fundamental facts which i believe provide kind of the foundation of this debate and this is the first one is the the idea of what the core aspect of the invention is which we links to and all the planes deal with the use of floating point format data throughout an entire graphics pipeline which is comprised of three part i ask you a threshold question i am getting my wrong i understood the question you were at the other side arguing in the context of anticipation honor a rasterization process operating floating point format and she construed that as requiring one hundred percent floating point throughout the entire rasterization process that's one of our red brief it's on construed the discourse construed as as a whole and that was improper because the claims don't require one hundred percent and we look at that as a heavy presumption that what the claim saves the correct interpretation their ordinary meaning should apply in addition the specification clearly notes at several points that rasterization can include multiple processes that can be and fix points which is diametrically opposed to what the lower and the reason that there's no disclaimer with that language is because the if you read it trying to text with the rest of the summary of the mentioned you can see that they're talking about a number of processes individually operating in floating point if you entirely on a floating point process is requiring that an conversion be in floating point what does that do to your argument on those claims that require scant conversion would now be redundant because they also specify floating point include conversion are not and one hundred percent floating point as the way the district court ruled i think that's rather but why wouldn't that in fact our view of the other coins which don't reference conversion but talked conversion shouldn't be displayed there should be no disclaimers on the soil little use of summary of the invention of paragraph its location as you define it because the practice or decision and the the how the plane was used in this in this in the i'm sorry how the term was used in the special in the in the claims where there was a redundancy by adopting the disclaimer the quirk clearly ruled there was no manifest exclusion  understand this correctly what you're really arguing is the right meaning or if it's appearing in a more big picture some complex operation would need a floating point and more mundine operations routine operations would stand fixpoint that's part of this invention what with invention was about it wasn't about quitting skiing conversion entirely floating away the that's one aspect of it there are other aspects and  arms that the summary statement was later clearly contradicted in the rest of the specification you have a similar indication here yes because what is it the call of lines thirty and that includes conversion well paula just the rest of the passage above identifies the various blocks associated with that particular figure figure i think it's for in the various  with caution that don't hold us two hundred percent floating point because it's there are so many prayers computer scientists would know there's too many american values that are being handled throughout the entire process of these computer systems says it's twenty seven again it should be noted that one or more of the above blocks complete implemented in the mix point format without departing from the scope of the present invention and that in figure five you see there are number of  but let me just to clarify even if we would just agreeing with everything you can that we think to conversion your position would still be that claims to through well at least the claims that don't specifically reference again conversion would kill i mean if you know if the anticipation issue or maybe some of the other infertility issues that fell off were based on what we can gertha claims construction then all of that has to be there that the issue doesn't off because it has nothing to do with the claims that were actually presented at trial so there's no claim construction jame all issue that and the other even those four claims that if the construction was in considered to be so bad that infect patent and it was based on whether the the product windows was actually contributed by any of the claimed elements within it by use of this term separate and apart in the air of the lower core was first to focus only on use infringement but the vast majority work with windows but windows has absolutely nothing to do with the graphics processing the only way to say showed was their expert dr wolfe said that you can't load programs into the a g i card third party games and things like that without an if you if windows didn't contribute it was not part of the competition and the fact is that the apparatus claims as we shall be sixteen of our reply papers there's a clear diagram there's unit that shows all of these features the the rasterization circuit the scanned converter that ford unit all these things are in there has nothing to do windows so we have permed you on the license point and agreed with you on claim construction we still need to as a whole as two parts translating and filling in which was the prior construction and the construction requested by this g i translating and filling into parts not entirely in floating point or that scan conversion was a in the district court then found those two parts translating and filling in the process of the whole district court said that meant that some aspects of translating and filling in needed to be in floating point because we do not do any translating or any scan conversion in floating point but only x and y coordinates in fixed point the court found no infringement and that was the basis that rule but i do believe th an inconsistency in the argument they've made and jim well versus what was done in the martin hearing and we request that the court hold them to the argument they made in general well to avoid  scan conversion the first prong of the microsoft license basically it's this question can the a g i product infringe separate apart by itself when it is not combined with windows  the answer to that question in the district court was emphatically no the three to seven apparatus claims require a certain structure for performing rasterization until windows provides programming h e i g p use  untrue grammar general purpose processor and they cannot contain the alleged infringing structure that was the body testimony from dr wolfe in the district court any testimony that was cited by their expert dr district court found did not come close to creating a genuine issue of material fact on the second issue the subject prong of the license is assuming intent would microsoft be liable for inducing infringement and the assumed knowledge and intent thereby referencing inducement by referring to intent intent has meaning only in the context of inducement to believe it is just a corporate plea apply the microsoft license to this case to these facts and that the district court should be upheld in that regard back briefly with the time remaining to scan conversion i would note that in the patent columns eleven and twelve the section of that and and eat a top of scan conversion figure five is no reference to scan conversion in figure five of the patent so those comments do not relate to scan conversion scan conversion spoken about from the very beginning of the pat this court has noted and the parties essentially agreed on the definition of scanned version is the process that specifies which pixels of the splay screen belong to which primitives it's called one once thirty one thirty three and conceded in their great grief at the only disagreement is whether scan converter should be entirely in floating point and this court is noted what the words say and i have run out of time i thank  the right that scan conversion doesn't appear anywhere in accomplishment or twelve it's it's embrace by the term rasterization and in fact if you look at the functional operation in those problems the i'm not sure of the word actually because i'm not sure like to if i could just jump back briefly to the the microsoft issue my remaining time we are going to consistently below that the second prong required a showing  actually properly construe that way the only way to make sense of the second prong is to limited to contributory infringement and to apply the requirement that if microsoft is to satisfy that second point they need show that it's a war for oil of india it ignores substantial evidence on the record as to what the price should be when you look at all of the happenings and one of the big be had reasons for discounting they carolina article on and the period the oracles are for only one using beekeeper well single produce a single producer but if you're operating in a market economy the single producer represents the market on the single producer is selling at a market price because india is a market economy and you can reject the e p a data for the same for the same basic reasons it's not representative of the price throughout india for the entire period of reviewing and it is critical in this case dealing with the mission that we get from india on the internet there is i'm not saying that the d n a data is not good data for a particular region for a particular period what i'm saying is that lower if the economy is not as strong there probably truck prices are going to be different in different regions of india throughout the period and that's being stopped point where maybe they will order again one period  single piece that we have because the e p a doubt it is not that bad but what they didn't do was they didn't look at the totality of the record and especially ignore all the evidence in the tribune article as information from me and everybody has a problem but in this case the department of commerce they had a limited number they have chartered accountants and they just said well it doesn't have a report this statement is no good and if the department of c had a problem well and do we have to assume that they said the statements no good what they concluded if i understood it was that the other statement b m h p c which i guess had auditors you know and all of this scandal was better was more any concern the plaintiffs raised is that somehow the export prices that were placed on the record for ron process tawny were allegedly lower than the raw value bronnie prices however those export prices were only lower after as well adjusted those prices using its own adjustments and in fact the domestic industry adjusted those prices too and came up with a number that was higher than the circuit values by congress why not just consider all of this information were based on much smaller sample sizes or the source of the data market economy they ought to be part of the equation right i mean any price factored into the economy right for any price might factor into the economy but  three exclude three lowest i mean that looks a little suspicious will congress put it in and then point out that it's a single point on a larger grid well of the department of commerce where it might lower the price a little bit but that may be appropriate well in this case it would have any lowering the price would have been for testing all on the eighty eight out it was based upon seven hundred beekeepers and the other articles provided involve either only one producer or was clearly unreliable because there was absolutely no statement concerning where those prices came from all the research was done sara and in fact what congress did was it the seventy five values more in the middle of all the prices the tribune article that as well suddenly embraces was proffered originally by the petitioners because the values in the tribune article were discusses the plaintiff's apparent anomaly as does appendix seven fourteen and seven seventeen also the plaintiff's concern about  the fact that the only went for the first half of the period of review is not really relevant here if you look at the appendix at page fifteen twelve it demonstrates that eighty six percent of the honey produced u nder the e p a data was produced in march through june was produced in the spring and only five percent was produced in october so even if the prices went down by october that would have been a very very small change in prices if there were an october e t a price how do you reconcile that twenty five percent higher normal value than the export price will go to make a profit at all well page thirty two of our brief the first footnote we explain the calculational issues that the plaintiffs raised in fact they took a simple average of the e p a data as opposed to a weighted average of the e p a data to come up with what they viewed the e t a normal value to be  but what the department of commerce did was took a wait it out was because much more honey was produced during the spring and we explain it fully in our grief at the first footnote in our writ brief so is the difference in the argument here i mean you're what seems to me you rationalization what it does is though it demonstrates that the plaintiffs claims that the department of commerce somehow skewed the data or or came up with hateley unreasonable or absurd termination just doesn't hold up to the actual evidence before the agents law and might even have to show that it was only up third they can to show that it wasn't the betham you could have done better right well what the plaintiffs can show is th congress has determination that e t a dead it was the best is unsupported by substantial evidence and one way to do that because the substantial evidence standard is very deferential as mr but that's not it's not a trial it's not necessarily picking between two alter s alternatives which is e t a worth it if the three articles what i think they're proposing is some combination so even if a b a e p a is much better clearly if the whole than looking at the other three not at all because congress fully explained why it found those three other data sources to be to be unreliable and there will be it will be back to the timing i thought i thought i understood you to just say well yeah there was a problem with the second half but it wasn't the entire portion of the second half it was just one quarter or the second half that should have been affected or treated differently what was it was five percent and that  october the that's correct but the if you look at page fifteen twelve of the appendix there's only certain months when hunting is harvested so there's so different months have much larger percentages and the primary accurate and in fact in the remaining results congress explained in great detail why did three articles were unreliable and because of their unreliability the agency in its professional judgment determined that it would not increase accuracy to add three unreliable sources to the average when there is reliable data but the other side would point out that at least some of the article one of the articles which we wind on by commerce in another proceeding which sort of call into question your  higher volumes and commerce determined not to use the tribune article in the plaintiff's aren't even alleging the calmer should use the tribune article because the surrogate value for money under the tribune article would be much higher than the value that the agency came up with in in the final results so but the sources that plaintiff's proffer none of those have ever been determined to be accurate by the agency are turning to the use of and p h c financial statements plaintiff's biggest complaint about those statements is that it allegedly imposes a last in first out accounting methodology that apparently skews the final results if you look at page eight of as well as reply brief you'll see a table where they talk about profits and losses under different accounting jeems i just wish to note that under that methodology according to plaintiffs and p h c would have lost money under a first in first out of the bill and there's no information on the record one way or the other about the c states that it made a profit so what plaintiffs are attempting to do is impose a methodology where that doesn't conform to the evidence the third and final issue collected or that were paid in the united states by the respondents affiliates so that's what the department of commerce did here now the plaintiffs are alleging that somehow the agency has to make a what's called a circumstance of sale it just meant between whatever costs were imposed were incurred by as well in china in selling the merchandise to its united states affiliate and compare that with the sales experience of the indian circuit company but under the statute under section six hundred seventy seven eighteen sales of merchandise in non market economy countries quote do not reflect the fair value of the merchandise so there's simply no no means of making such a circumstances of sale of just mint when the activities are conducted in non market economy country and paid for with not market a country with not a market country currency and therefore congress was well within its construction of the but it does have a long shelf life certainly long enough to justify the use of a life oh presumption that is simply an artifact of how congress went about adjusting the data to come up with  profit number just turned out that it assumed a life well based on the kind of data they had before them but there's no evidence on the record that necessarily skews yeah yes if you do life where five of them are two different outcomes one  ones lower but there's no evidence that choosing life zero versus that would be wrong compared to five in these circumstances what congress was charged to do here was to use the best information available information it didn't say that the tribune data was last with was not reliable at all it said it was less reliable and met data the problem with trying to find a way to use all the data that the court's been concerned with this morning is how does one go about averaging the data when you have different levels of reliability you have different how do you weight it congress could have for example said ok we're going to use the data that we got from the tribune article in the tribune author data range from forty to one hundred five at the median of those numbers the average simple as those numbers is right about seventy five's right about the number that the commerce department used those data actually support the number that unreliable data or less reliable data with the best data doesn't give you a best information available standard it what it gives you that the degrades the best information that you had why aren't all prices in a market economy reputable data points if you had all prices across the whole economy they might be but where you had in this case were  individual data points that didn't represent some kind of spectrum when the e p a did and you had that now it was for the second largest money producing region in the but it was many data points over a long period of time these other points worse were single point in time in a single place and so it would unfairly weight the overall data toward those points we're making this point we're not saying that sheen's fight we're saying is you have to make a choice between life and phyto in a financial statement without having any reason to choose one over the other there's something wrong with that financial statement