honour's this case to squarely within the centric case and not scintilla and the key holding of sun track is that the defendant infringes by making the final assembly or configuration of the q system here or take two is the only party that assembles the infringing that works the district court committed legal error by focusing on the fact that take two customers supply the components that are used to make the infringing network however it is take two that combines the various components to make the infringing network if take two disappeared the multiplayer functionality of the accused products could not operate in the networks could not be formed take two receives requests from its customers to join multiplayer game and then stitches together those individual customers to form infringing multiplayer network only take two has the servers in the infrastructure this is this is this to drain out how do you account for the fact that the players make the decision whether to join the game or nah the act of infringement does not occur on soul the participants are connected network of players got to take action to correct that is correct the player selects a multiplayer mode for one of the accused products so that time at that time the network is going to get sufficient players  disagree with that you're on a win win if it's sixteen players have decided they want to play the multiplayer mode in the selected the multiplayer mode all that happens at that point is that they send a request t participate in the game and then take two servers will connect the players to actually form the network again to take two servers were down and sixteen players went on their computers and said i want to play multiplayer nothing would happen only take two has the ability to receive those requests and then to stitch the players together to form the network and that's squarely within the syn tracks of the network here it is true that the players have to decide that they would like to play the game and request to play the game but only take two can put them together and make the inference network until take two performs that final step of the symbol in the network there is no infringing that if no players are asked to play the game then there's nothing the take two can do or does that that that the end user's processor in their computer system so this entire claim is directed to not to take to server but rather the ngo users own processor within a computer under those circumstances how can take to be the direct infringer as opposed to potentially an induced or contributory  claim to the end user's computer well the claim is to the combination of the software and the processor not just the process right but take two doesn't possess the process so that's why i was saying how could this be al can take to be a direct infringer when you just acknowledge that the claim is to the combination of the customer's processor plus the software take to i  it the focus is not on who supplies the components it's just the party that combines them and it's it's take two that combines the software and the processor until the software begins operating in controls the processor there's no infringement of porn on when i was my oldest paper it's when you say take two that is the one that's controlling it and doing it but if the user doesn't activate if the user doesn't engage the software on their computer output takes to possibly causing infringement it's kind of good not to judge act just as there's a requirement for electricity and and an internet connection but the the focus under the central analysis is not has the customer made a request it's who performs the action of the combination which is what makes the cringing component so when the customer says i would like to play grand theft auto and i would like to be connected to the matchmaking service infringement has not yet occurred then when take two software working with take to server controls the processor on the computer that only then is when the and i thought your argument was was more that an assertion that the that the process is in the making making the process of making the processor as opposed to control that the when the processor is running and being controlled by the software that's when it becomes and friends and that's that's when the software controlling the processor so simply installing the program on  computer has not yet created the infringing combination of software or it seems to me then that you are running head on into my prior question and then that's the role of the none of that would be possible the users the user talks to the users software talks to take two servers that's how it becomes connected to the game and it take to the provides that service and in fact they sell the service that's the other form of infringement issue here of being able to connect to the other players it again only takes two has the ability findings with respect and regular is based on the fact that the players are the ones who are choosing connections and that's incorrect on the facts in incorrect on the law and that's the legal error has been the focus of this do i am really baffled i don't understand your argument i read this district court opinion as finding summary judgment not an infringement on the basis of these two patents for two independent grounds one of which you did not appeal product didn't infringe the two patents on the basis also of the em regular limitation so your appeal could not result in a different outcome with regard to those patents because you did not appeal one of the independent grounds for not infringement on what i'm saying is that it's not an independent ground it's based on the the district the that you're only appealing one of multiple grounds for the district court's non infringement decisions you're appealing only one to multiple grounds and so if you leave other grounds out there and you're not appealing i mean just seems to me that the again judge moore you're absolutely correct that the accused device is the game console running our software and that accused the device does not exist until the customer installs it just like in scintilla and the customer's not us makes the accused device unlike centric there's no evidence that we ever act as an installer and also know that you have collectively and now i have counsel you believe that a customer make device being capsulated by claim nine when they install it on their computer i would say the customer makes the device accused of infringing claim nine when they install that software on the computer of the customers computer and so you so you believe if there is a direct infringer it is the customer correct and there is no indirect infringement allegations in this case  ok i would also notice all of these issues you have now heard far more argument and receive far more briefing the district court ever did as of the four hundred and ninety seven dollars this issue was never raised below that is all on two pair two pages about one minute j a and seventy six none of these arguments were ever made the stitched together theory was never made there was never any citation to evidence no expert ever said anything that mr frankel just said  the claim requires an m regular network because the claim is limited for at least two reasons to the large regime and in the large regime that the network is m regular that is what the district court found and acceleration never really challenges or even acknowledges either of these findings the claimant uses the term fully connected a fully connected computers explicitly defined in the specification as a computer or computer process that has exactly m connections in the large regime flee to find and back that's within the context of an embodiment that's already been specified as a and regular in fact for regular network right so of course fully connected in at i think it is joint appendix four hundred and forty one which is called fourteen lines fifty one through i think fifty six what it says is in the embodiment described above each fully connected computer has four connections the broadcast technique can be used with other numbers of internal connections for example each computer could have sixty eight or any even number of internal connections so i think that when it it says that if the number of internal connections and then the broadcast channel has an odd number of computers connected one of the computers will have less than the odd number of internal connections and then expands on the next state to does that mean for the words fully connected i i believe column fourteen is disclosing the possibility of an odd number of connection and when there are not a number of connections it wouldn't be connected remarkable command of it so what i would direct you to is the district court construction of m regular there's a difference between being considered to be an m regular network and to be a network that has the mathematical properties of being exactly in regular and so what i mean by that is what the district court said is that it construed and regular to mean a state that the network is configured to maintain were each participant is connected to exactly m neighbor participants and he says under my claim construction a network is not and regular for to since it happened to connect to the same number of other participants occasionally rather the network must be configured to maintain them regular state and he goes on to say that in other words you try to get to that state where appropriate so from a mathematical standpoint a network that is say has an odd degree of regularity not totally following it i don't know but i guess i'm looking at the bottom of the column for tea in the top and i believe it is suggesting that you could have an odd number of internal connection which would result in a network that is not configured to maintain and regular steak is that fair respectfully know what that means is that it will it will try to get into other words each each of these each of the participants is programmed to have a certain number of holes which it calls the before internal holes and the there each program to fill those holes with a connection and so when there's an odd number of there's an odd degree of regularity an odd number of neighbors what one of them won't be able to just one won't be able to have exactly m connection but as soon as another participant either leaves or joins then they will restore amber and regularity for each and every participant so that that one participant that doesn't that isn't m regular they'll be one persistent only and a network that doesn't have exactly m connections when the network has an odd degree of regularity in an odd number of neighbors that's the only time any participant that's fully connected to the network won't persist with an odd number so long as they're attempting to get back into an m regular state and then eventually do i mean you're describing a scenario in which there will be a portion of time when this network will and what the district court says there says as i explained my construction does not require the network to this is it with respect and regular network and this is something that was not appealed by construction does not require the network to have each participant to be connected to any neighbors at all times rather the network is configured or designed to have each participant be connected to m neighbors in other words if the network does not have each participant connected to them neighbors this is fine so long as when appropriate it tries to get to that configuration so if you have computers you know if you had chosen and if you have chosen an even degree of regularity it will always be possible for you to achieve a state that's mathematically and regular where each and every participant has exactly m connections the description of the potential for an odd number and toggling back and forth creating a problem but your saying just records construction fully encompass that one hundred percent and it was an appeal was not a messages are related from one participant to its neighbors and it goes on to say that is an example it can be a regular network that's a four column for line thirty but it does not require computer connected to every single computer that would be the maximum number of possible connections but that's not what this claim is directed to is it it's not that each participant is fully connected it's that the portal computers network you contact the portal computer portal computer says i know everyone who's who's participating in this game i understand your definition of fully connected you're saying the portal computer must be connected to every single there there's actually no discussion of what it means of the four computer being phone connected the the reference to fully connected is only with reference to the individual participants connections and then the general discussion of the portal computer there's equally no discussion in this specification we're just we're just something tell me that fully connected means connected to the maximum brief i don't know that you ever argued maximum maximum number of participants number of participants yes ma so page nineteen of the reply brief fully connected can refer to a portal computer that is connected to all participants not just the m participants there is no reason  network each participant in the network is connected to and neighbors port of computers not a participant in the network the port of computer is the natural making computer that introduces everyone so the network but it's not part of it's not part of the broadcast channel itself the portal computer is different from a regular participant in the network the portal computer's performing the matchmaking function not the broadcasting function