for an indirect and indeed if if the health care providers were not directly liable then the interrupt argument would be especially strong because the whole point of the interaction from the doctor as a streetcar explained is to provide a remedy and circumstances where someone profiting contributory infringement in the absence of a direct infringement under two seventy one and when that seems like a clear claim construction as i i mean that certain sections i can imagine coming directly from the supreme court so i don't understand your second argument which is even if there is no direct infringement there can still be inducement and i don't see how we could disregard the supreme court on the other this issue or drawing which which the judge just don't address at all is between direct infringement under arrest and of law ability for direct infringement under and in other words direct infringement in our view of the forms the combined performance of all of the stops exactly what another questions but that still doesn't tell you who have any what is laudable for and we do want you to seventy one a requires all the steps the distinction we're drawing is in fred which by the statute draws section two eighty two separately and distinguishes between not infringement and absence of liability for other friends it's a distinction that's wrong by congress itself such intuited see which talks about weeding a controlled house for this very purpose which is why i was on the first question back to drugs and friends but now we're only asking the court to do one very simple thing that would result both of these cases and ninety five percent of all others which is to agree with  and that raises the question when the innocent infringement the unit shooter is presumably innocent but i gather from what you just said one answer that question may be too weighty to  involved similarly using a product again once the and that's also the trust medical situation isn't deep so that if we're talking about using a product again others until it if someone else makes the product and i just put it in motion then that i'm liable for so again you always have a single directive french or the product sucks the one thing that otherwise would be a gap in the statute is for use of a method where two people can mind inform all the steps and as one of the most important just i think from judge moore i think it's fair to say that congress wasn't specifically thinking about that letter of the app which is why you then fall down one of the reasons that fall back on the column of presumption the congress unless it clearly strikes process itself otherwise it didn't really express otherwise here that incorporates the background of the common law precisely to fill the sells a lot of aside because the same issue arises in numerous other areas of law has for centuries and the generations we would you agree then with the with the claims have been made that really the resolution here is appropriate claims  can still figure out a way to split up about the claims without entering the contractual obligation then they can then they can they can infringe on your exclusionary right willy nilly so as a result of this now in fact every member the claim that it's not the golden hour was wrong i mean knowledge of the patent clients we're talking about people know mr dunn or added the knowledge requirement that the other person is performing the stats but no knowledge passed so when you getting into motivation to avoid contract out of that does that it for us on the right then why is contracting out of stuff any different from arranging our stuff instead of entering the form actual obligation where someone does something i just get them to do it under the eyes of the law specially for saving  structure control test it's the same thing it's all as if i'm doing it myself and if you say that you can have different consequences than a lot of these patent rights are going to be worth a whole lot less than everyone thought that would but it is against the trap to question the other point there is all written from the perspective of one after but then if the doctor says i'm not a computer guy i'm going to i'm going to outsource one of these you know something's not working steps a computer networking company then you've got the steps being divided the matter how it was written with the under the hypothetical you've got a direct infringement the doctors now directly infringing because the claims then rewritten the same receiving so somebody provides the computer program for that that person because there is now direct infringement can be guilty of inducing infringement right now i'm sorry to be clear about what i'm afraid to is the remainder of the steps if you take our claim the whole thing including all the computer processing ok and right from the perspective of one entity which is presumably going to the doctor's office but the doctor's offices i don't perform some of these i've got to do is one person does this and the other person's as that is normally not viewed as a detriment in some respects it's viewed as a good thing to be clear and precise about what you're talking about here mr just on your earlier point about how one gets a patent from the not the so they have a right to exclude and i don't think very many people would disagree with you but that right to exclude has never been seen as being enforceable against a party performing just a subset all the steps of the method claim particularly in instances when that's in the prior i am not infringing on your exclusive right so we certainly agree all the steps have to be performed the question then is by one person or by a combination of people words all attributable to one so as long as that is a valid path and to say there's no way to enforce the patent exactly as written which is the only thing we're trying to do here this is say there's no remedy at all of the talk with some of the earlier kit there are a number of earlier cases in which there was liability even though no one and you performed all the steps  porting there is that under the current approach all those cases where the role of the side because if you say that when no one person performs the number of steps there's no direct infringement and without a libel direct infringer there is no contributory infringement but if someone really does perform about that stuff and make money make money by knowingly combining that with someone else's completion of the patented method one it's going to be a really rare scenario but but to in the context of the direct liabilities for people been held all the only liabilities and d n c is congress for such that was aiding and abetting specified specific standards for the situation where they have direct after splitting up and that's the stuff that's a because it's direct actors we agree with the mc on that and then the point is just i've seen that implicated this issue the ones i've seen are all really easy if you take ours for example there's no question that the only reason the patient is the communication is of the healthcare provider first sets up the my chart network second sets up a personalized user name and password for the patient third gives the patient instructions on how to do all that in order to successfully persuade the patient to do it and then the only thing the patient can do with all of that set up is to initiate a communication conduct might be innocent right and careful on the phone when it's combined of what i see the other person's doing it becomes torturous and that's for example the old nuisance cases were totally appropriate for me to dump stuff in the river nothing wrong and nothing wrong feel about it but when it becomes wrongful the court judge moore was right to point out that the first question in this case which is it separate entities each perform separate steps under a method of a method claim under what circumstances would either entity or any third party be liable for inducement or contributory infringement is squarely addressed by the supreme court's decision in arrow where it said that there must be two seventy one a direct infringement as a predicate so really the question in this case comes back to the same question that we've been debating in the prior case as well what is the right standard for directing prison under section two seventy one a where more than one particle forms the steps of the mountain and there are two pieces of the argument here versus the statu interpretation and second is the extent to which if at all any common law principles undergird that interpretation of the statute let me first address a statutory provision  statute reads the missing some language whoever uses the patented invention is an infringer so the beginning friend or an entity must use the invention here under the well known all elements rule must perform all elements of the invention and what this court did in v m c and its progeny was to adopt the well known and well established doctrine under supreme court law that federal statutes governing liability are set forth against the backdrop of vicarious liability it would be the odd statute indeed that imposes liability only for what i did but not for what i did through my agents and so this is a well known and accepted rule of attribution that where i get someone else to act as my agents i'm vicariously liable that underlies all federal statutes says the supreme court and that's the law that's the background of the common law all that's important is of the statutes unless congress clearly indicates principles which were announced dated over hundreds of years by common law courts in cases of intentional wrongs and negligence and congress did adopt joint tortfeasor principles in the patent act i would commend the apple amicus brief which a quite lengthy way thorough way shows how congress wrestled with these issues and there was a great back and forth prompted by judge rhythms of what is the appropriate what are the appropriate the two species adopted were two seventy one b and c quite properly so because those are towards the deal with intentional conduct the common lot of joint so these are all of the principals in process or in the restatement sections that we've been talking about here today originated in that context of either intentional wrong or negligence and we see we have areas within the pattern acting to seventy one to deal with the intentional aspect of it but as we all agree section two seventy one a is not an intentional wrong it is not a negligence faced attitude it is strict liability and there is no authority that  negligence or intentional of a firies into a strict liability because of actions even the respect minute self acknowledges that the statement of the compilation and synthesis of hundreds of years of common law if there were a body  well settled common law cases adopting the negligence basic principles under which each actor's act must be independently wrongful and tortures into a strict liability setting then the restatement would tell us that that this is a two seventy one big case is that we're in intent is relevant obviously epic continued the health care provider  seventy one b and your honor is correct that this that mckesson theory of liability against epic is under two seventy one b but as a supreme court held an arrow we have to find a direct infringement under two seventy one a before we even address that question been bandied about today with a little bit a lack of clarity what the b m c court held was that these notions of direction or control are me direct thing someone to do something or controlling someone's conduct in doing something not merely me giving you directions on how you might want to look you the website if you should choose to do that and it's those notions of direction or control that underlie the promise of a vicarious liability so i think that even though the mc talked about  we've got to find somebody liable for doing these steps and they must be they must be vicariously liable for doing so i actually don't think with all due respect to the aca my decision narrowed the b i don't believe as that term was used in b m c you know it is because it's again it's not just here's the directions on how to use the product if you choose to buy it from me if you choose to log on to my web site here's the directions that i would encourage you to follow if you wish to use that shouldn't be enough to attribute the conduct of somebody who independently make that choice to be after that provides those instructions or directions direction in the context of v m c to the court's that we divide to liability because again it goes back to the statutory notion that what the whoever must do with practice the patented invention and to practice the patent invention you've got to perform all the steps you need to do is the issue of an appropriate case that way what well be a factual issue in some of the hypotheticals that we've heard today that may well be a factual issue but just like any other issue that is potentially an issue of fact there are circumstances where the evidence is under spewed that means that under that legal principle no reasonable jury could find them in favor of the tools and then we'd have a do over summary judgment so there would be a tool for the district court to utilize most situations and that's what happened here the facts here are absolutely undisputed there's no question as to the relevant fact that this is a voluntary web site that nobody is required to use nobody is required to sign up for they don't have to use it if they sign up for it there is absolutely no obligation on on any part of part of any patient to use the website and if this court were to interpret to seventy one a so that that were sufficient to find direct patent infringement liability on the patients and provide a strictly liable then really the door is wide open we could have a method staffed with four different steps and four different independent actors each performed one of the steps and there's no relationship between those actors yet under that logic there could be there could be liability  i think that door doesn't have to be wide open does it you're saying that there is no way that one came to resolve the horrors that have been painted if the door and some sort of reasonable maintenance of the incentive to devise new systems accepting that this is a new system and enabling authorize permit patent practitioner who has been in this audience and realizes what fine lines the courts are likely to draw this is not more appropriate to look and see what sorts of inventions we're looking at and how to devise and preserve an appropriate incentive if an incentive is appropriate in certain case certainly of the statute varies out that's an appropriate task but again the issue any number of entities actions together regardless of the relationship and find infringement that's the logical outcome of the interpretation of the statute that that mckesson advocates are now no sentences that damages were always be and that that simply is not in the statute in a don't believe it's in the law but it i think an illustration here on the interpretation point going back to some of the hypotheticals in the earlier arguments would be useful if two seventy one a were interpreted as  n wanted to be interpreted there is no reason to the saying interpretation would not also apply to apparatus claims or system claims there's nothing in the statute i do agree with mr dunn or there's nothing the statute that restricts to one type of claim or another or get with all due respect and i think that with judge lynn's point that the difference in those cases live in terms of two seventy one they were interpreting so we're talking about use of the system versus making a system let me let me offer let me offer my own hypothetical if i might claim that we're to recite a computer a processor a screening a keyboard and then software on that computer that is used to download store and play music if i am dell computer i make the apparatus for sided and three or four of the four elements of that i am i make the processor the same and the keyboard i don't make the software that's used to download and play music apple among others does that but if under the client there's no principal distinction in the patent between that and multiple parties performing a method and in this hypothetical the computer of course is a stable article of commons so what we have here  interpretation is an area where dell computer is liable strictly liable under two seven a if you want to pay for jointly making an apparatus because it sells the computer to a user who uses it to download and use items  and that is the logical outcome of the interpretation that akamai mckesson urge and i would submit the result would be the same under under a pure statutory interpretation point of view the result there is the same whether whether dell knows that users use their computers that download i tunes or not either way if you interpret the statute as we have been asked that is the outcome now they do i think they recognize smartly so that that's a bit of a hard school and so they tried to then bring it back to a knowledge requirement again so there's there's really no support for knowledge in the statute and if we look at the common law that they want to look at the common law do it towards either principles where they claim that these knowledge requirements come from but again look look at what we're looking at there with with joint towards either it's either intentional acts or negligent act individually intentional or negligent act combined together as a way to say to defendants you can't get out of liability because the plaintiff can't prove whether your wrongful acts caused the harm or the other person's wrongful acts all the harm their combined harm and so you're both on the road or jointly liable for your independently tortured ass so we have intentional towards in the past an act already congress a there's a distinction is a distinction found in supreme court case law in meyer the supreme court said that statutes addressing liability are interpreted with background to vicarious liability principles but in central banks that said we don't go too far and incorporate all elements of the common law into a statute where congress had it last congress specifically shows that it intends to do so i think the legislative history in it as outlined in the apple amicus brief so quite clearly th congress had no intent to incorporate any aspect of joint tortfeasor principles into two seventy one except for b and c one other point there i would make is that congress has not been shy about adding to the statute the deep south case which was referenced earlier is a situation where the supreme court had held that there could be no one friends and under two seventy one day because from the bangerz were not sold in assembled fashion there are only assembled after they went over sea and in that situation the supreme court said under the literal text of two seventy one a there is no infringement congress in response and acted to seventy one f so again it congress the head did intentionally include joint tortfeasor principle in certain instances did not what may happen is trying to do is essentially incorporate a negligence requirement into two seventy one day through its knowledge rule and negligence of course implies a duty of due care and so now if if this rule  of if i know that someone else is doing other parts of a method i may not there may not be a vicarious liability i may not direct them to do i mean i control their performance of the but i know they're doing it then all the sudden i'm liable that puts me as someone doing less drive a duty to learn about the patent live a duty to investigate what other people are doing i want to use a website so i need to call up the provider of the website and get them to explain to me how their server works because i need to make sure that i know that i've investigated this properly the i think that covers it on sort of one of the point on a knowledge that if you'll indulge me one other supposedly short hypothetical on the knowledge i think this illustrates another reason why the knowledge result really wouldn't be satisfying but let's say i have a manufacturing method claim or and there's a patent on that claim and it requires six steps and the last is that you've got to put the reflective coating on this product whatever the product might be i thought it was really good in my patent that about a reflective coating really helps it last longer and so that's my central advance well let's say someone else sees that pattern and says well let's take a look at that i know i can't do those six steps so let me let me messing around with this and see what i get and i do five of the six steps of the person trying to work around the patent does five of the six steps but discover them addition to that that i get if i use a different metal alloy than what is set forth in the patent i don't need  reflective coating in fact the product works better than the old way with the sick stuff with a reflective coating now if that happens the person that has discovered that has fulfilled the very essence of our patent system they have taken the public disclosure since the patents he got in exchange for the limited monopoly and found a better way of doing it but let me further suggest that if the mom of this person who worked around and found a new advance that i didn't need a reflective coating if i try to sell that to my distributors they then say well wait a minute where is the reflective coating my customers want to reflect the cutter used to having that in this product was a need to reflect the coating of the well you don't you know i don't have it in my product what if the distributors then add the reflective coating because the customers want and then i know that the manufacturer and i know that i know you know that in the market i see that we have these coating on these products in that scenario where i know that people are doing it i'm not directing them to do it i'm not controlling them into adding the coating it's not a subterfuge situation like the forty delco i sell but i have contributed to the general knowledge and innovation i would be liable under the test because i perform five steps of the method and i knew that someone else was doing the same and that cannot be the correct interpretation is not we submit the correct interpretation of the statute but that is the result that we would get to under the mckesson rule  i would like to address it very quickly at the beginning i would like to cover a little bit on the indirect the necessity for direct infringement for indirect and if this is a statutory point that to seventy one b and c clearly infringer under two seventy one day we then need to go to a second proceeding to determine if i am liable for that infringement we would suggest that there's simply no basis for that in the statute under section two eighty one if i'm an infringer i'm subject to civil action that in that setting it's along the inducer does some step and then leave the rest of the steps to the customers that there's no ideal not if the inducer director controls or result was vicariously liable for the actions of the forth necessary to satisfy the requirement to seventy one he would not necessarily be sufficient to satisfy you that there's some direction or control in the strict common sense correct it may or may not your you know is there a situation where you can be liable for inducement in situations where there is no to something you want to and friends rent because it because of the appropriate direction or control by carrie's liability of the present between the two actors forming the cl common law principles but it gets back to my dell computer hypothetical that you could you could be an inducer in that hypothetical if you intend for that for my computer to cause you to download i and even in any statute that's not a reasonable way to read the statute as a whole especially one here or to any of the sections to anyone says the patentee shall have a remedy by civil action for infringement so there's a third question as to what the r is but to say that basically it's a transparent shell game they're not hiding the ball but they're saying it's not a causes b and it's not because of say and also in the same way they're trying to make a lot of this court cases go away where there was liability is found you know there is no single direct forcible and other patents willy nilly just by people putting up the steps as long as they don't do it in a contractual far think in addition to the control intention is religious well as a liability because intent to a friend's knowledge of the patent things like that don't matter so we're not adding anything there that's not already in her direction and control certainly includes intent intent doesn't necessarily include direction or control  tops that would capture ninety five percent of the bad actors without going much beyond where you already also we once once you agree with contracting out exception it's really hard to see what's any different from contracting out first just arranging either way it's not strictly vicarious liability but the scores are across that bridge and either way the point is just that as the statement says if i copy a result directions to another it's exactly the same in the eyes of the law as if i