t with the one five one patent there are three grounds on which we believe the judgment below cannot stand first with respect to infringement there was a failure of proof with respect to the elements of the cla fourteen as construed by the court below second for invalidity under at least the logic of the infringement theory as presented by court wireless the claim would be invalid if that logic patent reached a duty to disclose the patent application in a timely fashion before and see those are the three grounds on which we believe the judgment cannot stand free independent grounds i'll start with non infringement respect and not infringement the claim  structural one to two hundred fifty they are always equipped to do that always configured to do that i think with runners asking is in the instance where the continuous web form messages are sent in the continuous where the four messages are sent there still to basically reasons why the products would not infringe the first as they're still configured to receive timing advance values at any time they're never in only continuous mode they're always used and in a mode that allows for the receipt of  values at any moment in time in any time slot it's certainly not configured to do continuous only that is never a mo that they enter they're always in a mode that allows for timing advance values as many times as they might be so that the second problem with the theory is even in the continuous mode the facts are undisputed that the time events values are sent four times the argument made to the district court is that nonetheless met the one time requirement because the products don't receive the matters for the invention because the alleged invention here is to reduce the number of time slots expended by timing advance value operations that allows the base station to use other time slots for communications other phones and it also allows the phones not spend as much time listening for timing advance values and we said if the session is the specification in the briefing but as one example that it did happen talks about how then under the approach of the patent the mobile station the number of slots which a mobile station must listen for timing advance values is also reduced that doesn't happen in the apple products there are always listening for tommy advance values pursuant to any of the procedures they are never in a mode where they were only  uipped configured to receive one time against value there in fact the opposite of the claimed approach can only move you to the question of implied waiver or inequitable activity no patent quite proud suppose there is another patent claim but it isn't directed to the particular standard it's some poor guy out there who's doing something other that under the standard and he gets sued can he come in and say there was a breach contract action to try to hold accountable the for us not only got here but i think it implied waiver situation like we have here it's difficult to envision how it might come to a court in the absence of an assertion of that same technology as standard essential which is exactly what happened here the one five one pattern was a sort of from the complaint on word a standard essential there was some attempt to move off that a trial but if you look at the complaint in the joint appendix including your honor effectively incorporated in the standard so that's their argument but i think our professional argument is it wasn't there's no infringement because the approach that was actually selected as different assuming infringement you would say well let's so my hypothetical doesn't apply because there was a consequence years for years after this section of the standard was adopted surfaces later and they and the search the pattern the standard essential and the various reasons relied on by the district court for not finding on enforceability simply don't square with the plain language of the policy the policy itself says you are required to disclose applications applications not just patterns but applications that might be essential if a proposal were adopted so it's not just actual sensuality bouts of touch might be essential if the proposal were adopted and as our expert who is a former chairman of the board of that's he testified the purpose behind that is to ensure that choices with respect to technical proposals are made with eyes wide open that the various participants are working groups understand what parties are applying for in terms of coverage and protection on the proposals being made to the organizations that can decide eyes wide open as to who holds which rights which proposal to adopt what happened here is exactly what the rules are intended to prevent a party makes a proposal has an application pending doesn't reveal it for years four years after the section was a frozen in five years after the proposal were made and if the defense says well our proposal was rejected but our idea got into someone else's proposal that we knew about that's not a defense it's still shows knowledge of the assertion and essentially ality and here we said subject to  a claimed infringement based on using the standard well that's a pic of claim you're trying to develop a strip of right you're trying to acquire you need to let the scanner study organization know exactly what the rules require being clear and transparent about what rights you have years after the standard was frozen and if the defense is in one of the arguments that the district court relied on is that the contours of the patent right weren't fully known until the patent was issued well that doesn't again square with the policy the policy refers to application by definition applications are not final and the manifest purpose of that term application as confirmed by our expert the former chairman of the board of the organization was to be a fine and transparent even with respect to applications they would might change over time but you need to let your going to zation know you have an application on file that relates to the technology that might be essential if the proposal will require it if i might turn to the five three six patent briefly in the five three six patent again we believe there's a failure proof with respect to the construed terms the terms require a binary good state bad state system the actual technology at issue is a more sophisticated and different each state system designed the chips was excluded because the engineer and the inventor used the word state and the word state also appears in the claims and the district court took the view that it be too confusing for the jury to hear testimony in which a word state up here that also appears in the claims that he tantamount to some form of expert opinion or the like akin to what this court dealt with in the court us case where an inventor was asked about the accused infringing product that's not what the testimony was it was percipient testimony by witnesses who worked on respectively the chip at issue and who worked on the patent and the technology that derives the patent and they were offering  the fact that they used the word state which is a term in the computer a field from from to state machines and in many different context my computer field is of no moment and should not have been allowed to be the basis for exclusion of that question that it was highly prejudicial  apple and so far as it deprive the jury of hearing from the inventor and the qualcomm engineer with respect to key facts that related to our non infringement defenses and again if the rule is going to be that any time a fact witness uses a claim term their testimony is excluded that's going to have a distorting effect on patent cases and so we think it fred at a minimum because of that there needs to be of a future of the five three six decision in a retrial of the full set of evidence one on the one five one infringement the evidence supports the jury's verdict that operating in continuous mode the claim the accused products meet the acute the claim element of receiving the tam the th once per multi frank there was extensive evidence in the source code and in the expert testimony of dr wessel that the accused products work in continuous mode in continuous mode they are specifically programmed in their source code to receive the t a a the once per multi frame structure and use that same t v for those the uplink and downlink channels even even when the base station sends separate these for both the uplink and downlink channels the evidence was contrary to what my friend just said the evidence was that the actual adopted standard did not adopt the one five one making it essentially essential but rather eriksson's proposal gave it the option the actual standard and the evidence is replete in the evidence in the record that the standard gives the base station the option to use separate for the uplink and downlink and gives the mobil station the option to use one or both the source code then shows that the accused products was specifically program not by happenstance t m the timing advance message or rather the timing advance value at the time ie advance value is an eight bit integer value and that that eight bit integer value t v does not appear in the t a contains information sufficient for the for the receiver to decode and receive the t v but that the actual integer itself that he is not itself as an eight bit integer in the time in advance message and that the system only receives it one time he went through the source code and showed the if then statement and testified that have to assume that that's what the jury so found here with regard to operate the other operating modes the so i think it can't really be disputed that there is substantial evidence to support the jury's determination that in continuous mode the t v is received one time drawing all inferences in favor of core wireless as we must so that's western as does the fact that it can receive this on demand signal negate infringement it does not the continuous mode is the only mandatory mode that dx when somebody appears in the record at nine eight six two continuous mode is mandatory the evidence is that the on demand and initial modes are optional moreover dr wessel testified that the continuous mode is sufficient as long as the mobil station is moving less than six hundred miles an hour he testified  fourteen twenty eight fourteen twenty nine that it would be a huge waste of resources to send another timing advance message to a mobile that's running the continuous time ie advance process and at twenty twenty six dr knightly admitted that there was no evidence that the on demand was every news and so the jury was sufficient had substantial evidence that was sufficient to warrant the jury's conclusion that the continuous mode is a normal operating mode that the on demand is rarely if ever used and that the accused products are configured to receive the time events value one time remote different structure in continuous mode which is a normal operating mode and therefore intrinsically five can i ask you about the degraded category yes the accused device the dance state is defined as state flagging that the frame does not contain error free user information now your witnesses testified that speech degraded was the heads of state but and fi understand speech degraded that does not necessarily mean that there is that the frame does not contain error free user information is not right no your honor the the testimony in the record was the dr wessel test fight expressly that the speech degraded is treated by for a clean construction more in the nature of how the system treats it spinning degraded flag dr wessels testimony with that speech degraded flags that frame for the system as a bad frame and he testifies it two to eight for i think in this table it sounds nuance but in the device it's not nuanced at all when it receives a speech degraded frame that frame is subsumed and muted the receiver treats it like it does like it does not contain error free user information that the receiver thought it contained or for user information it would use dr wessels testimony it was unequivocal on this that each one of the r x types flag that frame as start or end of the message it doesn't indicate where the message occurs and it doesn't even indicate definitively for the system that the frame even contains a message rather it has to go through this two step process with going to the second step once it determines that there's no data then it goes and does a c r c check to see if the thirty five bitmap pattern matches the predefined thirty five bit pattern and only then determine that the frame contains a mess his testimony is a five fifteen zero nine fifteen ten at fifteen fifty eight and twenty one eighty six to twenty one night the waiver argument first there was no evidence that the one five one patent was essential in fact the evidence was that the one five one patent was made optional in the standard that you can practice the standard without performing the one five one and and therefore it's not required to be disclosed at all moreover the district court found and was justified in so finding that there was no duty to disclose because one it wasn't essential to there was no essential i p r there hand hadn't been any patent rights apply jet the only application that existed as of the freeze date of june one thousand nine hundred eight was a finnish application the evidence in the after the date and it didn't become allowed intil june two thousand and two and it was disclosed july two thousand and two right after  r evident from the record is that the definition of essential i p r excludes confidential material and fin and the evidence further is that the application at the time of the freeze date up through the date which is the relevant time for disclosure was confidential these were finished applications another finished law which i know nothing about but the evidence in the record was that under finnish law of these applications were considered confidential co in the sense that it was the right of the applicant not to have him disclosed recently either by the finnish office or by anyone with knowledge of the application but that doesn't mean that the possessor of the file or of the application wouldn't  a duty to disclose that's defined right that's a standard but depending on the standard setting operation could have said we don't care if it's confidential and not we want to see if that would have there would have been an obligation to waive confidentiality by the by the applicant in that situation you were in that situation i agree with the start situation in this entirely on the the definition of what is required as being excluding confidential material with only with respect to confidential but due to that that there was no duty to disclose the court's final is well supported it wasn't essential it was confidential it wasn't an actual i p r right at that time and didn't become so until two thousand and the points that we needed to make for infringement this was a good trial we laid out exactly the evidence that the jury heard the evidence and conflicting testimony as to why the accused products meet the one five one patt why they were specifically programmed in their source code to receive the t v once and why they made the two step interpretation process of the five thirty six the jury was well supported in this finding that there was no  and we have such a court of thank you related to that view for the invalid indefensibly presented the continuous procedure was part of the par and that's the argument that we made that if continuous somehow met the claim that continuous procedure was in a prior proposal the s c that said appendix nine nine zero seven describing the continuous procedure and that was our given our experimental set if this somehow satisfied the claim it being valid in light of the prior are teaching that same continuous procedure second point mr pfister question but you understand that from the mobile station the phones perspective it is absolutely mandatory that they perform all three correct answer yeah that's right question and that is in fact how the apple products are configured to operate their configure to do all three answer yes that's right and that's the basic failure here we have phones that are configured to receive timing advance phasing any point in time of any point in time with them all their frame structure one two three four seven two hundred fifty times and they claim that requires the configure to receive a tiny advance value once it's the exact opposite of the claimed approach so we think that that testimony shows that the optionality is on the base station side not the mobile side and that segues into my third point which is the un in force ability issue this is a mandatory part of the standard for the phone and now the argument is well this is not really a standard essential patent the complaint says explicitly and so i think at three zero zero applications there of other than trademarks for the avoidance of doubt rights relating to get up confidential information trade secrets of the like are excluded from the definition of i p r it is clear in the face of that procedure that applications were meant to be disclosed maintain confidentiality over an idea they proposed to the organization wasn't accomplished by via what they kept confidential improperly which the existence of a patent application and would be a highly damaging precedent for standards for the organizations going forward to permit a party to do exactly what these rules are intended to prevent to keep your patent rights secret for years and years and years and then later allege that their standard essential the final point i make runners on the five three six page you're exactly right judge rice on both their speech to graded it's not flagged as good state or bad state it's an intermediate state it could be good or it could be bad and it's a function of each state system being more nuanced and just different in kind from the binary to state approach played by the pa right and this was the argument made by cor wireless at mark when as your honor pointed out he's referring to downstream uses the touchstone and judge very well rejected that argument and said no there has to be something about the frame itself that tells you what it is and it needs to tell you if it's a good state or a bad state and they're trying to shoehorn this state system into this binary paradigm and this just doesn't fit this speech degraded could be good could be bad you don't know by looking at the frame itself the fact that downstream it's treated the same is