a legal standard that did not exist when the district court rendered this decision but the question is whether there is anything to do on remand if we were going so send it back to apply that the patients could use care link with for example the continuous monitoring system which is of their forward needed and also not download the material over the sinking system but actually turn it over that is one way data medical data onto the website and this data is transmitted to a central server in minneapolis and then the physician who has been provided software yeah right but i just i mean i think that i downloaded it i just want i just want to focus on that this is their performing the patient steps of the client that that's not the end of the inquiry but i guess i wanted to do that first and the how and when and what you're answering is what i can or they can't use but that's my conditioning we to try to control the timing of it the manner of it provides the software ford provides the software to the physicians so above by providing the passwords and access to the server and providing the software and setting up the whole system as is has it pointed out the details of the meeting this new standard how it's divided between the different parts is has not been proved has not been laid out in the way that we would like to lay it out and we could we can leave it out if we know what the legal standard is i mean even the declaration of the expert and what evidence the expert looked into and even arc in our discovery we would have perhaps investigate further nuances that are established by showing that you profited from the other's activity and had a rip up right and ability to control it now i assume that you can make just for the purposes of this question that you can make out a cas medtronic profited from the performance by patients with the patient steps yes in particular presumably they sell more insulin pumps when the insulin pumps become more useful that's what about the ability and right to control how the patients use the thing and use th measure the information send the information record the information where is there any suggestion of a possibility that medtronic has a right or ability to control that one of our steps to happen so they're encouraging they're providing incentive and encouragement by advertising my money you talk in the language that the support that this court used following the supreme court in clocks care of ability and right to control here the patients in the performance of the patients that yes metron provides the software provides the entire system the password the software the web site that's the interface between the patient and the trying and by doing so it controls how the system is going to be used when the system is going to be used next updates it provides information it's basically in control of the entire system and process and it you know it when it wants to modify or encourage certain activities and in this case the uploading it advertises if and promotes it says in fact it's pacifically sites to literature  because there's more continuous and regular patient from data being sent to the doctor so they have actual studies that actually keep that carried out the steps and they cite in touting studies as their evidence to convince the patients and the doctors to do exactly what what gets these awful results and these studies have a pet very detailed methodology and the details of the dollars he includes the transmission of data i'm sorry medical data from the is well settled that the intervening new law controls are pending case the district court's decision should be is that made its decision on originally is obsolete it did not do analysis or look into the facts or m our rules we apply the new law yes i agree with that completely what circumstances could there be any under which we would not send it back and say is that there is no evidence in this fully developed record after years of litigation many depositions one tens of thousands of documents are exchanged by the parties that  the actions of other persons in carrying out the steps of the claimed method here doctors and patients in addition to the defendant that tron before we ever reach sequestration we have to address the question that judge worry addressed earlier which is there is no evidence in this record that all of the steps of the claim did you have that you don't think that that there isn't enough circumstantial evidence to show to in er by a preponderance of the evidence that it's more likely than not that somebody somewhere some patient did all of the things to complete the process when i don't know what is it all but one of the devices in your own brochures for use for this in fact meet one of the two elements that you dispute namely you take it off after you do the measuring everything except your continuous monitoring thing and it's perfectly clear that it's highly likely that a bunch of this information is being sink i just don't see how it has a starter or a proposition for no evidence that would allow now an inference that there is that it's more likely than not that somewhere somewhere in the absence basically of two elements one is what some measure and goes on without without taking it off before you send the information just focusing on that i just want to keep these things straight yes am i right that the then there is at least a suggestion from what you describe as as an option of sending the information to the doctor by the sinking process you think it there's no basis for device one that can be separated from the body of the patient it requires a particular type of data not lifecycle that would be very important to diabetes patients for example nutrition exercise and the like it has to be something that's measured from the uses of the killing system is for the patient to walk into the doctor's office with his or her welcome close meter and directly download to the doctor's computer the data representing the values that  that particular devices has collected it and measure it's an act that's called an optional setting and the in the manuals that are part of this record connect that the data can be record can i shift it to the other is yes subtle as i think i'd says vicarious liability can be established if you the defendant profit from the other person's activity and have the ability and control ability and right to you didn't have to apply that standard as it says in footnote nine because it did it under under inducement so we don't know whether that would have been true in grokster or not but it cites a couple of earlier cases shapiro bernstein cases called doctrine from grokster and the associated line of copyright cases on which this court has previously relied for some of these doctrines in law what we what you need is to be able to point to some ability by the defendant to to i'm sorry from just repeating the standard but to control the activities of users of the system and i know a judge trying to he did not want me to refer patient's metering device when that when the patient walks in and they break bring it out from drive or something yes exactly can can be a thumb drive it can be the meter itself that can actually transfer the data as well but that process of synchronization ph would you put in the evidence relative to what you understood the beagle law of the case at that time or would you put in other evidence that you thought really wasn't relevant to the legal standard my point being we now have a new legal standard ten we say with some confidence that there's no way a good trial lawyer might have put in additional evidence in the record in light of a different legal standard the answer to the question is that if i were counsel for med graph below i would have put in all evidence going to direction and control because that's the number under which these various standards for attributing action arise w  participation system receipt of benefits that would require different evidence i take it would it could but my point is simply that if i were in med graf's coun of category but in this page of the of of the record this is the page that makes so clear that they're trying to is not exercising any ability to control  was actually filed a long time ago but did they say we we limited our discovery part of what should be should go on and remain and is reopening discovery so we can what facts they might be than hopefully developed where they permitted by the district judge to take additional discovery that would create some genuine issue particularly in light of the passage that i just  that that that he did not see a basis for a successful sixty in motion on these facts but but certainly we don't know what the answer is yes we don't know what he would have done in fact doesn't it in response to just rotters inquiry that at least twenty percent of the cases there could be infringement i would argue is that patients don't have to to use the infringing steps but it does  patients use they provide the patient the the interface to the entire system they provide patients the password to the system so they have obviously have the right this is all their system you have there are clean elements  i will say this and that you respond the record makes absolutely clear they have neither the ability or the right to control they do have the ability and right to control some elements because of their software but not all of the elements and why if the record makes that clear with the possibility of more discovery how could it possibly know well the question is is that i mean if we have more discovery to clarify for example how they control more information for example and how they may influence or control the patient's use of these particular steps i mean we know that they they provided the software the password the information and they even say they say look at these studies this is how you do it to get these great results so they are i mean they are reducing patients to carry out these steps they have the right to control the steps inquiry about the rights of the right they have the right to shut the whole thing down or the other right to allow the patient to do use the system as they have advocated is the most beneficial way to use the system and they have the ability to control the matter of timing of its use they control the entire system they can change the software as they please they can in terms of if they can provide different information in the software how you get into the system so so this question is