system does not meet the comparison limitation and second you cue software does not meet the adding the selecting from the existing subset and it is your comparison argument mainly that dr browne admitted that there is no comparison made of no i'm not asking you to do that all this court may clear however conclusory expert testimony is not the kind of substantial evidence that the court will used to sustain a brick want to what he's talking about is adding something that is not the claimed subset that's the key point i wanted to make here if you look at how this claim functions it's pretty clear you receive measurement data that's the voltage information from the meters from each sensor o subset it's at the receipt of the voltage information from meters that you first have a claimed subset second you have to generate in it an energy delivery parameter based on measurement data received from the sub so what we're talking about is the subset of meters if you're if you're going to look at our system and say that's a subset there's a subset there the only time there is ever a group of meters that reports voltage data and it doesn't report it into the objective function where we calculate the energy delivery primer it into the into the adjustment of them but if you look at that and want to call that a subset the only time that happens ever in our software and this is undisputed is if the end of the two minute wait period now if i i don't have to reach this right now so why don't we talk about the only thing that's causing me pause in the comparison imitation which is to hear a stick molder model whatever you call it in a footnote in your opening brief you say up and don't pay any attention to that you're a sick thing to the extent that they bring it up later because they it in closing argument i don't really know what to make of that because there are certain pages in the testimony in the exhibits if i read that manual right it says expressly there's a comparison going on the exact comparison at issue so we're talking about comparisons don't generate energy delivered from their experts admitted measure voltage data is never use the generated energy delivery fram there may be comparisons of voltage down for example out of the meters to see whether the meter is an exception state but that's not the comparison of data that we're talking about in in the in the points moreover they don't raise any of this you're a stick information a brief this is she was was a was a red herring as coun t portion of the manual that judge soldiers pointed you to is this limited this portion of this manual because i'm not sure i understand your argument that this isn't the relevant comparison for the claim so is this also within the umbrella of the heuristic mode and therefore i should disregard i but i again i think it's i think it's grossly unfair to say to a jury this is a red herring it's not an issue in this case and then come up on appeal and say it is it issue in that case i just think when you make those kind of concessions that see end of the issue for purposes of the trial and that's that's the that's the way and that's an argument that was presented yes i mean that the issues were split squarely presented you know dr brown's admissions that we rely on in this are not limited to one motor the other i mean that's the way our our our system operates  morning let me start by going through what the evidence was with respect to the comparison that you often system makes and i would begin by drawing the court's attention state's ninety nine and sixty five of the appendix where mr pell reads portion of the austin words website that is describing this system and what it says is i'm sorry where did you drop nine i'm sorry ninety nine sixty five your hon line five actually line three the witnesses saying this is a web page that i've been around this is actually mr pal the inventor question what is it who's web page you answer alston's web page and then he says you got it off the website and then the lawyer asks him to read a portion of it to the jury and online sixteen he says this is coming from all seems website also its own description of a system i b b c pro actively queries for the near by the way and look at the moon and i see that there is a comparison to a measure voltage and then that differential between i mean comparison to a calculated voltage and the differential between the admission he was agreeing that that search step cannot be viewed in isolation happened look at all three of them and while i'm not a math expert i will represent to work this out several times in the course of looking it out for me would you determine their calculation minus measurement right add the limit that equals your new adjusted limit and then you compare that to see whether it's greater equal or less than the calculated voltage right so what you can do as a matter of algebra is you drop out that new limit part because it's an equal so in the one hand you have the error plus limit right there on the other hand you have the question is it greater than less than or equal and then you drop calculation out of both sides and you discover what that equation is doing is solving for the relationship between the measurement and the original limit and that's why dr brown says that this is mathematically the and i see the staff of doing the comparison between them as you can catch it and i see the steps of adjusting operating lower limits but then you said there was an extra step that you mentioned about then going back and doing some sort of other comparison and  means mathematically that's a very result oriented approach that only applies to this is a literal infringement case it requires comparison of two discrete things you're saying the three step approach laid out by dr brown mathematical gets into the exact result i don't know that mr rayney would necessarily agree or disagree but let's say he agrees with you that's still not literal infringement that's possibly a great deal we argument but this is not a deal in case dr brown said they don't compare the two things the claims that need to be compared that's the end of  that's like that's like saying the distributive addition is the same as multiplication three plus three plus three plus three is twelve and four times three is twelve that doesn't mean addition and multiplication are the exact same function even though they reach the same result if you had a variable on one side and another variable on the other side and you had two different ways of expressing the relationship it's the same thing it's the comparison the claim doesn't say how to make that comp you yeah so it's describing a three step process that results in a comparison that's what the claim requires a comparison it doesn't say how to do the compares this is not a term that was construe they're trying to shoehorn this into a specific way that they think this comparison should be made and dr browne repeatedly in this testimony said this comparison is made and here's how it's made through reading it you heard about her a stick it's almost first time that you heard about it in the trial because what duke is doing is optimizing you heard a lot about optimizing that you didn't hear about your a stick that was simply a red herring really nothing at issue in this case yes your honor  and and the reason is because they didn't dispute because of the language that you pulled out of the manual the surest you can fringes but the evidence was a duke wasn't using touristic so what they did in the closing was tr what i'm not sure how to interpret this case is quite confusing but you simply didn't even respond to the argument you're referee and the reason your honor is because they were using optimizing that's what the jury trial was about so infringement here if you're waving any argument that it is because that's not what do you say well i think i know you're afraid of the waiver argument but you're saying the same thing you're saying they don't use this method incorrect so the evidence with respect comparison is not simply dr brown's testimony is as i was stating their own website which says we make this comparison which was read into the record which the jury heard it ninety nine sixty five mr boardman had a meeting with mr pal shortly after they saw that that lane where you sit there and ninety nine sixty five are you talking about your inventors testimony about their website he read their website to the jury and i don't see anything on ninety nine sixty five which is where he which is very disappointing but he's leading on their website which supposedly is the comparison of st again who's doing this alston was using a bandwidth to check smart meters another component of what's in that and then it goes on in the next page ninety nine sixty six to say these inform the measurements the frown alarms the c function when meter locations are pro choice low voltage limit and provides a warning no further voltage reduction on ninety nine sixty eight ways because the website has that language about operational limit s that should be more it's something that we rely on notwithstanding the fact that when we look at the user's manual and we look at dr brown's testimony of that exact operation it talks about comparing your honor i'm saying there is substantial evidence that the jury heard this is only one piece of it as a result of which it made the conclusion it came to the conclusion that there was a comparison and we're here to see whether there was enough evidence for a reasonable juror to make that conclusion and so when their website says we make this check in a ninety nine sixty eight when they have a meeting and mr boardman says yeah we don't rely on  calculated we were lying and measured why is that because that's what they're algorithm does it compare so they have other steps i'm not disputing that they're algorithm compares the measurement to the limit to the to the not interested limit that when fourteen one twenty six which is what all of our electric lights operated on so there's testimony from mr boardman twice in this record yeah we disregard the calculated voltage we rely only on the measurement and why is that because when you look at the algorithm you can see calculated voltage doesn't matter it falls out it's irrelevant there and why did they do that in do that which is first of all meat there's this to defer to different issues with respect to the to the target voltage there's meters reporting exceptions so meters will say hey i'm outside of range i'm incident totally not an issue in this case case these claims are clearly talking about comparing a voltage measure voltage to the target voltage range to generate energy to every parameter in the controller that's doing the talking about what's happening out of the meters as well one point two there's no question that our system had the capability does it now it's been stripped of product and had the capability to use measured voltages and it runs through a series of computations to use that voltage which is undisputed there's no dispute about how our software operates the website doesn't created spewed out that he doesn't get into the