appellants we have three issues this morning and our people that are most important one is the one on one issue a novelty ability to is the issue of damages and it's a proper computation and three as will hold us if the  issue is resolved then there's no need to go to two other issues so i'll take the st issue st here on the news you speak st about the waiver of the one on one issue yes your honor we believe that the waiver issue has now been resolved by the sri footnote number five in sri the court sided twenty three circuits for the review of the rd circuit case and they started cited st to the federal circuit case law and united tack nd to the th circuit case law and rd to the th circuit case law there was no citation of the rd circuit in that ruling which was a ruling on the rd on the case from the rd circuit so it appears to us that you think it was a contested issue and in sri as to which circuit law  on this kind of procedural question of you know what does it take to preserve an argument in a denial of a summary judgment it certainly does not appear that it was the direct issue that is in this case where it is to which circuit law applies the appellate claiming that is the th circuit but we believe that because we're talking about the issue of a review of summary judgment on one of one that that is an issue particular to federal circuit law that's not an the federal circuit case law of the arrow products and accenture both of which say that it is an issue that should be particular to the federal circuit to federal circuit law apply however even if we are wrong and we are misreading sri we believe that we would still win even applying that circuit all circuit law there is of course the bell decision which was brought to light during the briefing but the fell decision did not overrule hudson and when and both of those th circuit cases support our position that if you have a ruling on a motion for summary judgment and and that there is a final ruling on that that you could not have to bring that up again on jame all in four to have a decision reviewed by the appellate proceeding so either under the that was resolved or that was addressed that summary judgment and then continued on into the jury here we have i want to warn you the issue but then we have all these other issues that actually went to the jury that are not  was a separate and distinct issue that was addressed that summary judgment apart from all the issues that were addressed and resolved that the jury we do read at least hudson that way your honor but also the other people part is that in hudson since it wasn't a patton issue and that also makes it completely different from anything that we would find in the th circuit because they simply have not addressed want to one so we would find that hudson completely supports as when it is not directly on point but it does show that there was no waiver applied but it doesn't go into the substance that has and does so we believe that hudson does provide that that outlet to fell that we're looking for if that circuit law doesn't apply but if we do survive the waiver issue your honor then we would get to the substance of one on one and we believe that there's basically three reasons why we would find these patent claims to be eligible is only two claims that issue and the two claims st is that there was a nose of wax issue and basically in the one on one argument that was made by erickson to the court in trying to overcome the one of the one ruling a motion for summary judgment there was an argument that these claims were to be construed narrowly that there was a middle where there was a layered architecture and other specific items that came from the i think our proceedings and they were saying so you should you know your honor judge payne you should consider these are narrowly however when the claims were taken to the jury the nose of wax was completely changed in that very same arguments were widened out and the jury was told well no you don't have to necessarily find middleware it's in the title of the patent it's not in the claims you understand the difficulty that we have on  so is it your view that he was just wrong to rely on that it's kind of harder for me to absorb well he may have been right but then it turned out it trial that the issues kind of changed and that's just really hard for me to sort of absorb yes it seems to be your argument right that he may have been are you conceding that he may have been right if they stop there but he's not right because in the truck during the trial here it might be presented to the jury changed the theory from what it had been before the peter we're not saying that the judge was right we're just pointing out the inconsistency of the arguments by ericsson as far as the judge's ruling the judge is the judge we believe got it wrong in two ways one the judge kept repeating the fact that the patent office the p t o had already reviewed the climbs and found them to be patentable but of course one of one was not subject to rip to review at the patent office so that's one of the things that we're not sure that the court fully understood secondly the court also talked about the technical words that were in the climate he said well there's so many technical words that must be it must be eligible well that goes against smart systems and all the case law of this for which is technical jargon technical words alone cannot make a claim eligible you have to go beyond what the technical words are and then when we look at the inconsistency and how the claims were interpreted by erickson between the one on one motion and the jury that confirms what we're explaining which is these technical words when you look at them all they fall together into one thing and that is access there's a picture in our brief of having a doorway you come up to the doorway you let the door open you have the door closed closing and this cord and smart systems accenture smart fish and prism all of these cases have explained that merely having access to data the door opening or closing that is not enough we have to have something more now my friends from ericsson they point to in fish a trace data engine and the new case in core all of these cases do say that you can have claims that are pattern eligible but they have to have something more than just this access concept they have to have from the briefing why he changed his position so do you have anything with in the record that would really match the two things that the judge did that we believe were led to the reversal of the decision to reconsider r r two fold and frankly we believe that they're based upon a misreading of power integrations and laser dynamics because in power integrations and laser that hammett says the court knows it makes clear that you have to have an apportionment and that was the arg one of the main arguments that was in the briefing on the motion for a new trial which the judge originally granted and then reconsidered and decided against that for two reasons one reason is he said that t c l had not focused on what other patented features the were of record to show a portion that well t c l didn't she need to show that there were other patented features we only needed to show that there were other features of the phone so we have a phone which even erikson's expert admits as thousands of features and eric says expert also admitted that there are certain must have features for example a microphone camera and other things that he noted bluetooth so for so that of these thousands of features there was no apportionment so the judge and the judge paint he in correctly understood that it was not other features but other patented features and he said well because t c l had not shown there were other patent features that he changed his mind the nd thing that he pointed to was royalty stacking and again we believe it was a confusion on the part of the court in the eastern district of texas where he said well because you could have more than one patented feature to be licensed and you could have royalty stacking and there's not enough evidence on that that was an argument argument there was a failure of  apportionment not that there was an issue with royalties stacking so those were the two errors that he that the two iranians approach is that he used and reversing his decision to have a new trial but we believe that there are basically two main reasons not at all your honor exam or no no your honor that the st time that the alternative to theories were brought up was in the motion for reconsideration on the new trial and damages and under  written by your honor if you don't bring an argument and the jury trial and they don't even bring it until after the reconsideration you cannot bring it late and so basically what we believe happened is we brought our jamie all on the damages issue they saw they had an issue which was on their primary theory which is willingness to buy and then they tried to bootstrap these additional arguments price sensitivity and willing to buy which were never presented now now my my friend from ericsson make it up here and say well the jury did see our survey and on our survey the words these words price sensitivity and willingness to buy or own the survey problem is is under the would serve case this court has made clear that the jury has to have guideposts it has to have something to say aha there's the alternative theory well there was no argument no presentation nothing that was presented to the judge or the jury or the motion for reconsideration on these alternative theories computers you say the jury  poems but it's not your responsibility to bring forward the guidepost that would affect the findings in your favor well since we only had one argument that was presented you it's their responsibility to raise their argument these were their three alleged arguments they picked one and they did not use the other two so it's only our responsibility because they have the burden of proof to respond to their arguments  that you are now telling us we need to rethink and reconsider well we don't think that the jury would have anything to think because the jury would not even consider these alternative theories because they were never presented so we don't think the jury would have had that they're going to argue it was on a piece of paper but that piece of paper was never presented in any way in fact when the jury saw they highlighted survey which is a one page survey they focused in on only one portion of the survey and that's their willingness to buy there's a it's not in keeping with the jury system to ask us to rethink what should have been before the jury i'm certainly not asking that you rethink what was before the jury i'm only asking you to consider only what was before the jury and the only thing before the jury was one theory and that's the willingness to by theory and under project and wits or that would not be something that the jury had considered because they were not told about it they can't consider it if they haven't been told through that truth that  supports the verdict that theory still does not support the verdict thank you ron or for asking about that because that theory the alternative two theories are still based on the iranian survey which did not have appropriate apportionment that's a very important fact the survey is erroneous under all three theories not just the st theory so all the arguments in our brief as to why the survey is incorrect for failing to apportion those arguments are political to all three so the same defect infects the entire survey thank good morning in may please the court turning st to damages erickson presented as the crux of the stem of his model its damages theory a hypothetical negotiation and a converse testified that in the hypothetical negotiation between erickson and t c l there would be a bargaining range the top of which would be three dollars forty two cents in the bottom of which would be something above zero in a book but the whole basis for this is twenty eight percent so anybody ever say three dollars fifty two cents no but there was a document that was admitted into evidence by agreement of the parties three admitted before the trial it is in the up an entry record b x one o the expert calculated the top end of the bargain range in the hypothetical negotiation based on both willingness to pay and willingness to buy survey inputs used both of those and the document the provides the how you get to utilize those two other theories that were never actually presented to the jury as a justification for what may well be a flaw single theory that was presented to them they aren't alternative theories they're factual inputs the damages model that was used was a hypothetical negotiation what would t c l have been willing to pay because what is the product so that t c l doesn't have the feature it's the outlier number two t c l had no ability and this is also in the record to modify the android code it didn't have that capability and  has to get a license and the reality is of the survey that if they don't get a license and they have to not use this feature which allows individual feature by feature permissions to be granted or denied the apps they don't have the same feature everyone else house they're going to lose twenty percent of their sales so when t c l goes to the hypothetical to boot that a call negotiation that's what they're trying to bargain to avoid there's an alternative ground to go and that's the willingness to pay under the willingness to pay which is three dollars fifty two cents a dime more t c l realizes that their consumers will value this feature in their phones at three dollars  fifty two cents so any outcome in the bardo less than that is an optimal utility improving solution for t c l and so we're going back to the hypothetical hypothetical negotiation and in the context of that we've got to look at the real world situation that t c l was in and why it needed a license when we turned it in frankly playing with because this is a pattern that creates an architecture or structure within a computer to provide a better result to prove the functionality of that computer so in other words this allows imbues to tell a social media app i will give access to my camera but not to my location or my contacts on an function by function basis which did not previously exist to accomplish that the pattern sets up a tiered or a layered architecture and there's three let me sets up an application domain that is separate from the software services component and your own investment answer your question i'm going to st look at the claim language and then i'm going to turn to the specification for context i'm speaking just for the claim language for now we have an application domain that is separate from the software services component so you have an application the three layers of the application don't a domain the intercept interception module or excuse me that the  the software services the application of the apps we can think of that way the software services are the things like the camera the wife i function ality the other things on your phone that the app would like to access the st element provides that the interface component quote is controlling access by apps to the software services domain in other words it sits in between that's how it controls access then going further down the interception module in the rd element that is claimed that it intercepts requests for access from the apps than checks a security module which holds permissions the user is granted and then the final element it says only if the request is granted is the app granted access to the software services and that confirms that there is this intervening layer now turning to the specification for context i'd like to point your your honour's to five or six portions of the specification that i think make clear the the layering and also the separation of these different functions call them for me to me i'm sorry i mean it sounds a little bit like a security guard in the lobby of an office building right and then a person comes in and wants access to a certain floor business or person that works there and then the security guards going to check the list if this person and been approved to come up stairs yes or no if yes ok you can walk through and head to the elevator if not then you don't get to go in and so you don't get access and i know that's a very simple crude analogy but to me that feels a kin to what you just described in terms of certain applications what i mean who access certain native software on a on a cellphone or not even a cell phone just any system but it's more than that because to be able to accomplish the functionality in this is an apparatus claim you have to have the architecture in place which is the separation of the components that didn't exist it's when you have the separation and then you create the interface pathway between the apps and the securities in the software services that you have created an architecture that and then allows you to put in place these rules in these procedures i mean when you who you're not talking are isolated from the rest of the components and must access those by the interface the specification discloses figure three as showing the actual layering and it says in addition to portioned functional software units there are also vertically partitioned software units as well so it has a vertical partition which is the software services the various functions of the phone can't talk to each other but there's also a horizontal partitioning which means that a higher level layer like the apps cannot communicate or use the software services unless are granted permission through the interface so that can happen not colophon you know with the later x yes why does that make a difference because we've gets a computer architecture like the the court is approved in n fish and and in the other cases that we why why does that make accessing the native software easier or more efficient or i don't know higher performing more accurate anything in the in on the phone resources and then you you were disabled to get rid of the sandbox then it gets to use everything the only way you can accomplish that by amp and service by service access right in other words the ability to allow a social media app to access camera but not location or you know microphone or other things the only way you can do that is to have this partition and the app can only access a software services component if it's allowed and it's that specific software services component that architecture that separation did not exist in the prior art and the rules for the to is fine granularity right and keeping in mind the claims are read in the context of the specification you can find it in the st element of a software services component and an interface component which are set out separately the last element says where in the requesting application domain software is granted access to the software services component via at least one interface if the request is granted that's the control part of it but it also has an access control for controlling access to the software services component and i think controlling access in the context of the specification means absent get the access this unless the request is granted that's the wall by requesting application domain software via the at least one interface so the structure that set up is absolute separate from software services and software services are the functions of the phone that an apple is to use if they can't access t and they can only access them through the interface if permission is granted that's a software architectural structure that is being set up in this pat and i think that is far more than abstract that takes it now to the level of a new result the result being and the panel so talks about costs you know another savings and efficiency of programming in it but in addition to that it allows users to have a new function which is service by service ability to grant and to die permissions in real time when when the when the app is is looking to invoke the services of the can of the mobile phone so it's the phrase for controlling access to the software services component and i should be looking at and then when i look at that i should think about that software architecture being described in colorado yes and the access controller is set up for having an interception module so the concept of interception is there which means it means receiving a request to access right before interception means before the software services can be in vote so it stands in the way interception and a decision entity for determining if the requests should be granted and then the last element which is access is granted if the request passes or if there are questions around so i think that that's it that is what is set up it's both rules but it's more than that it's the actual partitioning or the layering of the software and the layering is discussed three quick points your honor i think that as you saw it my friend from ericsson was struggling to explain why the claims would be eligible every time that the court asked about particular elements of the climbs what did my friend do he went to the specification there's simply nothing in the claims that makes this this eligible and in fact what he was returning from referring to the separate architecture he again had to go to the specification to explain how they were different but as i noted at trial before the jury the expert collapsed all of these elements into nothing more than a gateway so that's the st one eligible ity on damages the point i would make is whether or not any of the three analyses are considered we submit only the st to be considered but whether or not all of them are how can a survey results and twenty eight percent of the value of a mobile phone be a correct apportionment what we had here is we've had t c l makes mobile phone but we don't have the operating system we get the operating system from google and that google operating system has one feature on it that is the feature of limited accessibility for applications that's the claim feature how can of the thousands of things on the phone including ability to make a call and having a photo before you was the in fish case and in fish case there was a specific self referential table a specific a specific type of data structure that was klein that type of specific specificity is simply not in these clients and even if i think what my friend from erickson was trying to do is he was trying to say well even if i fail step one and it is an abstract idea somehow i make it step two but he also can point to nothing that's a tangible or physical result that's claim that comes from his client that would bring it into step two as well so there's really nothing of record that supports the eligibility in either one of those