with by the district court and then i will move if we have time on to the parents issues the alternative grounds for on the merits issue that actually dealt with by the district court i think the issue is pretty straightforward the question is could a reasonable fact finder conclude that at least one person followed the instructions that skyjack provided and use the product in the way that it was set up to be used and i think that logical answer that is of course at least one person would have done in fact i think the opposite conclusion is less reasonable that nobody uses this mold of the product but does that then sure the question of whether a direct infringement actually occurred it provides enough circumstantial evidence under this court case law to create a fact question on direct infringement i mean can you prove direct infringement by short or central evidence you can well you can prove the existence of someone point to your saying that circumstantial evidence can be used to show for example that somebody what would have more likely than not followed instructions yes but you're not showing that that actually happened was likely that someone out there pushed the button you don't have to say you know there's a guy named bob who put him you don't know if you show him the likelihood that somebody may have what you're really seeing is that you're not showing that the button was actually pushed you are showing that they instructed people to push the button and that they sold a product with the button that went which would do the action i think that's what you have in this court case filed going all the way back in molecular one which is the molecular that's a rubik's cube case and involved instructions on a particular way to solve your root human if you ever try to you know there's many ways to to solve a rubik's cube so there wasn't any evidence cited in that case of a particular person sitting down and following those instructions to solve a rubik's cube to push the button you see your analogy but there was still sufficient circumstantial evidence that it would have had that at least one person had done it so the i think that pushing the button is important to that's not enough and you in your case gone back to the discussion we had and you also have to show that the instructions mapped out infringement sure and is that what happened here well let me qualify that answer ok because they did not identify any limitation that was missing in their summary judgment ok and so for us we were not required to go and identify particular limitations we were just that required to put forward what we had said is the infringement their instructions and their product and we did that now i don't why you think i'm hiding from the limitation because we did put forth evidence on the limitations also and i can go through this procedural problems on that for them because it wasn't in their summary judgment motion they raised it in the supplemental briefing that you received a couple of days ago that's not their motion and we had no opportunity to respond to that because that was the last brief the briefs are filed simultaneously on that ok let me address the three points that they've raised that they say were not addressed by mr chang number one is the claim limitation on initializing think it's the the keyboard and the mouse turning on the computer unplugging the cords and i think even reasonable fact finder could conclude without the help of an expert or other testimony that that the product is suggesting that you turn on your computer before you certain that there's no directive privilege i don't think we admitted there's no direct infringement i think we admitted that we didn't have evidence of a direct infringer which is a distinction between things we don't we can't point to somebody who did this  repeatedly pointed to their their instructions and we relied on the instructions and what's your evidence of direct infringement it's their instructions and the chain declaration or what we're relying on a chain saying he followed the the divine the instructions in using the product and so it's circumstantial evidence is the same sort of evidence that was in golden blount's in molecular one and into shiva those were cases where you could not point to a person who  i don't think we can say that there's two points we didn't concede number one they didn't raise the element by element issue in their summary judgment motion they raised the issue which is the only issue the port reached was when you don't point to somebody who actually did this and i think they've they're not defending that on mapped out infringement that they met the limits of the clearing not if they don't put it into play in their summary judgment motion on not on the merits we have to do it limitation by limitation comparison but for example give  sites here for and it's actually in the district court's opinion which i think is why the district court didn't reach that issue technologies the quote is that the patent the statement has to be that the patent happened to have no evidence of infringement ok that's the point you're making and pointing to the specific ways in which accused systems did not meet the claim limitations so they had to do two things they had to say no infringement and then they had to say what elements were missing and that's what they didn't do in their summary judgment which all they raised in their summary judgment motion was that we hadn't pointed to a person and our answer is we don't have to point to that person the case law molecular and so on that allows us circumstantial evidence on that the other point about pointing to particular elements did not come into the case until the supplemental brief it was not in their motion and in fact on the elements if you look at their at their summary judgment motion and i  to page eighty six of the appendix this is the background of their summary judgment  ok right in the middle it says hi just dispute that such a use of the accuse products would infringe either claim one or claim six because moving the cursor involves moving the entire mouse and they get to the controlling a switch feet argument ok so on page eighty six they say there's a dispute about one limitation to controlling the switch limitation ok they don't say there's no dispute that they will say they should get summary judgment and we turn a couple pages into their summary judgment motion eight nine four three eight nine seven they're not moving on that limitation or any other particular limitation of the claim in their summary judgment their issue that's on appeal is on page ninety seven or even ninety six really eight ninety seven and it's f film and janssen and those cases a point that we didn't point to a particular person but what's important to understand it in their summary judgment motion they did not identify any missing limitation now they did and those are the three points that they claim mr chain forgot to address initializing the components which we say is turning them on i think the instructions fairly read suggest to a person you have to turn your computer on before you can put these wires up another one is that they raise and see and limitation of e m c i think a reasonable fact finder could conclude that you're going to stop using this as some point turn off the computers i'm one of them and then the third one is that the person has to make i think the term is judging whether you need to switch from one monitor to the other ok there are material say this allows you to switch from one monitor to the other i think a reasonable fact finder could conclude that before you switch from one monitor to the other you make a mental step of judging that you should be on the other monitor as i'm the first one so that these three things that mr cheney is missing are i don't like these were inherent but they're really inherent part of following their instructions of course you have to turn on and turn off the computers of course you're going to judge the move before you can move and their documentation does how the ability to move between the  one one one point i think that is fairly an alternative route for a firm it's in the court doesn't need to reach it we don't think the court should reach it is their point about intent but i think that's easily dealt with  multiple of the cases that we cite milt just for you to fidget to six twenty third at thirteen thirty two bold and wild for thirty eight f third thirteen sixty one says if you know about the patent and you're instructing people is enough evidence here to put in place fast but i think it's important that the court understand all of these alternative grounds that the district court here rule not on particular limitations missing only on  view that we didn't point to a particular infringement we think the case law clearly says we don't have to point to a particular friendship we don't think this court needs to or should reach the alternative grounds but if the court does look into them and actually looks at what happened below that they'll see that kites that did not raise properly undersell the text in that summary judgment brief these issues and so they're not properly in play on i'll reserve the rest of my in the district court proceedings the district court's judgment of non christian was correct well reasoned and should be affirmed because quite simply there never was any evidence presented that would show or from which could be reasonably inferred that there was a brick at the bottom appellant did not do a number of things that would have narrowed the case in a justifiable way so for instance as your i believe your own point out there was a claim of dread i would think that you know if you're going to charge people that much money you catch these kind of errors in here what they should know is that the user manuals allow users to look very closely of course it sort of shows and because it's of course it's what it shows and because i think you have a slam dunk case i'm just talents there is no waiver of any argument that the appellant never actually matched up the claims of the methods in the patent or each step in the method with an actual use by anyone in the united states first of all that was their burden to do that's how you show direct infringement of them ethically that's clear by the supreme court's decision in limelight networks and this court's response including in joy technologies as well as f the council cited a page eighty six of the record specifically put in place issue that no they haven't shown that the controlling the switch dispose of the mouse limitation was actually met with using the excuse products and that is why the district co something or briefing on this issue which was provide and therefore all those arguments are made on appeal here were preserving argued below so i don't think there's any merit to the waiver but as i said the sins of the  the sack here is that and no point where the actual elements of the claims mashed up with any use by any one united states user manual don't do that the mit critical claims that clint clint's not such as judging whether first computer hosting to be operated judging whether second computer hosting to be operated if so do you go to the step two d of the claims all of that is missing the chang declaration the declaration inventor doesn't get a pound there either not only is the declaration also missing important claim steps in what he does recites as his use of the products that use occurred in taiwan so essentially telling that is asking the court to infer that one mr chang actually solve the puzzles that are actively described infringing and there was extensive puzzles if your honor if the court looks in the record there is no evidence of sales much less expensive still the cues products of course the reasoning there is the more expensive the sales the more permissible in france that perhaps someone would have used the process in french and now we don't have that here like western golden blount's this court was present with very different evidence and here as well there to the defendants employees actually emitted that the defendant secondary gas burner when assembled resulted in infringing configuration of being below the primary environment as well defendants  in that case outside town council had size and same effect and i believe the instruction materials provided with the products in that case actively described and showed that  task that's not enough to show circumstantially or otherwise that someone practiced all of the claimed method stops in the required order in the united states something more is required in fujitsu friends ample this court found sufficient circumstantial evidence only for the accused products malls where there were active customer service records that shows that the defendant was purposely telling  customers in customer support communications yes please use this configuration fragments of these devices none of that is present here addresses very briefly the district court probably a rule that those are an authenticated hearsay there's no evidence of who posted the videos who created them or even what they show and there's been no showing in this appeal of any abuse of discretion the district court on that issue the point here is that the district court considered even a all of this untimely evidence of the surprise of events which was proffered only in opposition to our motion or summary judgment the district forgave the believe inquired of counsel another case before ours we do believe there is an inference that can be taken if a patent he tries rely on circumstantial evidence but does not make any attempt to elicit direct evidence and that's discovery limited argument limited submissions then dismissal sermon judgment and yet you had fees of close to half a million dollars and it's issues beyond infringement which i believe are described in the in the order that's a fair statement give me your best estimate of what proportion of the fees are related to that lastly turning to the issue of the the award of attorney says in the fine of exceptionality we don't think there's any fair dispute that the district court the non abusive discretion in the way it i is clear from the or the text of the district court order that the district court consider the totality of circumstances it was cited all the proceedings in the case from beginning through summary judgment and it was not focused in other words on a and perhaps lending more attention to specifically the actual so called evidence that was proffered late in the game so i don't think that this is an issue of of of being only focused on on that and it was appropriate for this report to give a little more treatment to that since that was so heavily argued the district court i see them my time is expired but it is  counsel place central lines on a case called each pass i don't see it cited in the read brief i don't think it's a recent case but the description of it sounded like it is a case in which the accused product was capable of infringing where the capability of infringement is accompanied by instructions and also i don't think this is necessary but that it be the default mode for the device and i direct the court to  appendix a level forty four where it says the picture below is shown when two windows o s computers are connected and to judge while your question about this being preferred to others or what have you the default shows that the boxes checked is the accuse feature they queues mode of operating this device not one of the other models when you plug your two computers together this document this is there the document that that default when you turn on when you plug the computers together and print them on now if you turn one page from couple pages to eleven forty six judge wallace i sent some skepticism on the merits so i'm going to try and dress as best i can th move your mouse cursor i'm sorry their manual says move your mouse cursor between two displays naturally and seamlessly minute says now you can move the mouse cursor across the left edge of the lake to switch the mouse between the two windows and west computer i think it's fair to say inherent in that is that a person is going to judge that they want to move between the monitors when they move the mouse that instructing someone you can move the mouse has inherent in it a statement of when you want to when you've judged that you should move the mouse now i know he said there were many others that the one that he addressed the others that they actually addressed in the briefing and again it was not in their summary judgment motion it was in the supplemental briefing that we never had a chance to respond to and was never invited by the court and was never addressed by the court are the issues about initializing the keyboard and the monitor and then andy and i would argue that those are inherent in any use of the product obviously they show these two computers turned on with the screen working of course you just initialized the keyboard and turn on your computer these are not things that we need an expert to talk about i submit that they're not things that mr cheney had to talk about the fact they are in evidence they are in the record in their own manual i don't think that the courts of law requires a witness to explain something that simple or that they have to expressly say by the way we show our manual a computer that's turned on make sure to turn on your computer for you the things that they identify are so simple that anybody would know to perform them and it would be part and parcel of reading