have proceeded here i am trying to picture all of your honors and pretend that i'm standing there before you this particular argument will be very brief it would not opposed by a junior person there was no opposing brief filed and the only reason that we took this issue up on appeal is that we had to essentially had expressed instructions from catch all set that the district court level that if we wanted certain portions of the daubert ruling a very small portion to remain sealed then we had to appeal the order or it would automatically become unsealed and only had to issue a sealing of this but this is yet to proceed let me just ask you i know where we can we've got a case in uniloc which seems very similar to this and in that case with also with judge also up we mandate the case for him to make findings and analyze this question you're asking for reversal but even if we agreed with you wouldn't a real man rather than a reversal be a p propre course yes your honor i think it would thank unless you we articulated why they did want them to not be public they are specific licensing numbers for pynchon that the public should have particularly no interest in but engine certainly had interest in keeping them confidential and i also did not articulate why i felt that was inappropriate experienced a complete infringement claim chart could fintan a stablished actual notice where in the summary judgment order did the district court conclude you were required to but did not supply a claim chart i know identify a actual notice and judge also that same from the bench that we were going to lose because this was in the form once again of a summary judgment which is interesting because compliance with notice is a fact issue and yet what the him a claim chart that showed disseminating patent was violated we would not meet in his mind as a matter of law apparently that our requirement to show  true that is true your honor but what judge also did find in the written order so we could go for example to appendix ninety six it is part of judge also has written order on this issue he talks about how the engine is attempting to cobble together notice and that even though there was a draft license agreement and that the draft license agreement discussed specific patent rights and th e seventy eight patent was called out in the presentation he lists all of that he says that we needed to and i'm trying to get his actual wording here that since we were able to because we did do one chart on a different since we were able to do that then we should have done it here and i'm sorry i just i don't see that so i could you show me what sentence you're relying on for that yes i will your honor if you give me one more of  inference but i just want to know what sentence you're relying on yes your honor to be one second to get there and i will find it in his order  i think that in that presentation you're referring to the pattern that we're talking about here was one of seventeen that was listed in that presentation you know i might be off by one or two but  honor that's exactly the language i'm talking about i thought that that went to the fact that this was one of seventeen patents that was identified in the presentation well actually then when you go to the next page there are more patents listed as and as to what i plan for future litigation but really the issue here is the procedural posture perhaps this isn't sufficient but not but not as a matter of law it's a matter of fact whether or not with what clearly is not like side court was not notice that we believe they were infringing we as we say we engaged in lengthy discussions with so it's a question of fact for a jury to decide under personal the court will instruct him as to what the law is and whether or not that was sufficient to put side sport which was then after acquired by juniper the and so it's letter is good i guess is the declaration of somebody saying hello we're engine forth we're using your a t p advance which is your advanced persistent threat as infringing and then we gave as what we said w representative example the three o five and actually did a claim chart where we charted out we also them listed the four nights for which was an issue in this case and the one hundred and fifty four and i believe i heard my tone so i think interrupt this is judge protest mr kagan but why isn't mrs brook's right that this is ultimately should have been a question for the jury i mean whether it's the issue is whether or not it was sufficiently specific to support an objective understanding that the recipient may be an infringer why isn't that a jury question i mean there were documents it's not like they just said we did it end of story there were documents in the record why isn't that really like a jury question and not one of the judge decide on summary judgment so with notice there are two issues that need to be that need to be identified to stablish notice on the other hand for proof point which is also with the it doesn't show the seventy so what this presentation says is different and there's different patterns different patents in our portfolio we believe have been infringe so the question is is there something in that record where the engine is putting cipher on notice that it believes that site four is infringing the seventy towpath and there was nothing there and i think the reason there was such a long colloquy with judge also at the hearing on this is is going to keep saying yes we did provide specific notice about seventy eight dollars patents and and just also kept saying where you've done claim  for these other patents you put them on notice show me where you say that you believe cite forward infringes the seventy eight dollars and there was no evidence of that and that is why it's it's appropriate for s judgment with the seven is there no question to question the notice like if there's another issue with the seventy eight open as well that really acquaintance i have a question a separate question for you counsel this judge wallach on page twenty nine of the great brief combination juniper was selling the patent system is there any merit to that argument there is not and the reason is as follows the while there was a free license that was granted to all purchasers of s r s systems the s r s systems as sold could not operate with sky a t p so they incompatible with operation with sky could be unless they were st modified and so in order to modify the system users could take advantage of a free license or purchase a license but then what they would have to do is download a software was what was sold essentially was not a complete system that could be used but it's a system that could be modified if the user chose to be to be used together and in juniper damages model we included all sales of all modified systems so every system that was sold that could have been combined with every s r s that could have been combined with line so this was this is an expired patent and we have a start date for when the sky system existed so we know so it's a closed universe we have a close period of time so we know exactly how been modified so if a system had been sold during that period of time that was not capable of connecting either because it was didn't have the right hardware or because it had never been modified through the download and and operation of software those systems we excluded we don't know how many systems were actually combined but we took every single system that could physically have been combined during the relevant time period those were all included in our damages calculation and then again the problem with binge and food systems that were incapable either for hardware reasons or for software reasons of being combined and that's why they changed their theory that's where the engine said when it came time to submit the damages report they said we're including sales of all sri even though we had only previously accused sky a t p by itself and combination with sri x and the engine infringement expert had said it's not the s r acts by itself that infringes and then their damages expert takes a different position so that's why the judge found a waiver and that is that and then this is where it is good we believe that is subject to an abuse of discretion review because this is a question of whether finch and waved that argument between the parties over whether over the number of passes over the number that are required but it's sort of a fake  that the purpose of this patent is to identify products and malware that is potentially coming into a system that may try to disguise themselves by having certain components removed downloaded separately at a later period in time and the way that the patent describes getting around this problem is by performing has function on the downloadable which is the main program together with the feste component and when you perform a hash function on that you generate you will generate a particular unique identification number like a fingerprint for that file what hackers would do according to finch and sometimes they would take some of the components outside of the downloadable because then when the download comes in and it's hash it's going to have a different value than the complete combined hash so it will slip through and later on it will get the fetch component so the whole purpose of finch invention is that you take the fetch components you grab them and you perform the hash on it together and this is what they said in the prosecution history they explain that this is exactly what happens and this is why their in works this is that appendix four thousand two hundred and fifty three where they say the same downloadable may be delivered with some required software component included and others missing and in each case the generated same id for downloadable cardless of which software components are included with the downloadable and which software components are only reference invite this court to read that opinion i'm not going to read it here but she squarely rejects been gins view of this patent and says that you need to down to generate a unique and reproducible downloadable i for each downloadable which cannot happen if you are separately hashing the the downloadable and the components it can only happen if you fetch the components and hash together infringe if the court does not deal with what the what the lower court did as far as the damage is concerned we will have a wrong with no remedy unical we live with infringement and we will not be able to recover one penny so instead what i'd like to do is gateways that are capable of interfacing with sky a t p so that takes that into i think people so the remaining question is well what does it mean to be painful don't you have to and i think counsel argue you have to download proposition and i would quote verbatim from that document quote you do not need to install the sky a cheapie free license as these are included in your basic software unquote so apparently if you want some kind of a premier package you might have to do something but they their thing tutor part saying you don't need to download anything your sky a t p free license is included with your  granting the scout was wrong then we're going to go back and we're going to end up with the exclusion of our damages expert in its entirety from any of the past thank you thank you very thank you