for argument this morning is fourteen one eight one two i think we're ready strikes me please according to reuters we have several issues not appeal i think that the panel can best understand the bulk of the appeal by understand two key points number one is what is the division of labor between the browser and the appl so you wouldn't have to reach the ability is useless i think could potentially act like obvious the argument that there is infringement but i don't think that you would have to necessarily but i think that maybe a better i think my opponent may have about a stronger interest in the answer that think that recent case of last weekend's enterprise m c n versus fuel packer i think makes that stronger i could actually there's probably two parts of the three fifteen issue number one is there some sort of interference number one that it's not a certainty because we don't want the jury up here on appeal and it's not asserted and your view is no no no i mean if let's assume we were rocket docket just like e g virginia and we had already by the time the i p r concludes we've hearing there is no they likely would not be spawn would it be your view that that would not be too late that's correct i think i think there's some guidance i so if we if we had decided about ready even if it weren't the that at least now of course we don't have that here but i think that would be suggested by some of the case of this court i realise that they don't have to do with this particular type of statutory a stoppel but it suggests that the litigation is not final and until that and congress put in place a timing mechanism for when this is triggered and i realize that my opponent argues that collateral stoppel has all of these precepts to it we're not arguing that we're saying congress put in the trigger and then we're looking at collateral stoppel for what does it mean to a stop someone because we think it just like any law student knows the difference between claimed collusion inish group preclusion and in boston and probably two thirds of should come up and they would have a chance to ask for a reversal that what it means though is no no i don't know if we affirm the judgment of invalid at all in this case then what happened to the a p r k is that the it i mean because we're not going to then decide the case and having decided the patents invalid we don't then decide what the court was so we haven't talked about that but i would expect there'd be either some agreement by the parties or motion practice in that appeal similar to the motion that we filed here although decision years precludes of i'd on my feet i don't want to admit that but if the decision here is that the issue is producer of the claims here are the deep are for twenty and twenty six there's a couple extra claims in the patent office but they're broader than sustain cases for very good reasons is this just aberrational because we've got such a rocket docket going here i mean this is this or is it your view that this could happen repeatedly in this or is it just a matter of time the extraordinary paper prior art to the trial that is really what we believe congress intended you know they probably would like all the prior art to go to the patent office but they can't as a practical matter because the patent office can investigate on sale cars and that type of thing but i think that the practical thing that congress was trying to get here was you take everything you if you want to take an ip are you take your paper so so was the answer to my question would be unusual to hear it was limited to so it's a lot like if you think about blueprints on a specification for a profit for appt instruction project ok the blueprints and specifications are the definition of that project the physical manifestation of the project the two by fours and so on that's the actual manifested physical thing but it's not the definition for the thing so for example if you cut off your project after blueprints and then spec or didn't finish you'd still have a page definition but the include instructions that would produce a complete page that you have the browser had to go elsewhere to get the rest of the instructions to get the display page yes but that's different than the page definition so the page definition has a link to a picture for example so you can toast your friends look here's my dog ok and your picture is stored somewhere on the internet at w w w dot decision about what to get its does exactly what it's told just like if you give a construction worker a blueprint that says put the two by fours here they put them there there's no judgment by either the browser or what it gets is that for the browser goes and gets what the link points to and that's not disputed what they dispute is well your patent doesn't show that for stylesheet for kaskade style sheets but that's kind of irrelevant because their whole premise of their case was that the browser can't get the page ok but it doesn't give it the bits that allow it to display the page it points it specifies where it where the image for example is or where the cascading style sheets are but it that's kind of what cascading style sheets do for a web page see it say that instead of having to define every piece of content in the page and how it's going to look when it's displayed in a cascading style sheet kind of provides a stylesheet just like in word for that but that stylesheet pointed to by the link that big pipe gets to the browser so it's just like in the end just as an image the browser follows that link goes and gets the image brings it back same thing here browser files that follows that link goes and gets the stylesheet brings it back so it's into five hundred in what they paid gives them and that's why it's a page definition it's not the physical instantiated page and this is really here's the at the bottom of the lower left corner of one zero seven zero five page twenty six yes you look at the question the last line can the browser display anything that's not in the page definition answer it cannot and there is no that's the sum and substance of what i think if you go through her direct you'll see where she talks about the joining of the content and how those links are followed but i thought directly to your point about is there anything coming from anywhere else the answer is no because the browser asking the browser display anything that's not in the page definition so the page definition is what is coming from a big fight over the browser and the question is can it display anything that it doesn't get from that page definition and her answer is no it can't so i think a lot of the confusion right here is that the claim term is assembly in a diary page you know and it can i just ask about that or it's just there i'm confused about the relationship between page definition while the page definition seems to say one thing that cohesive diary page talks about assembling or putting all the content on the page design or fully integrated for display form in the cohesive diary to the claim constructions of the court to figure this out and both claim constructions for both patents point to the page definitions in the three sixteen patent it's the construction of assembling that whole clause and you were just reading the beginning of that claim construction but the end of it was to generate a page definition and so what you're doing in the assembly when you look only at the claim it says you're assembling a cohesive diary page but when you look at the claim construction you generating a page definition so what that does when you say cohesive diary page a web pages is a somewhat vague term because you could be talking about the code you'd be talking about what you see on the screen and what the claimed instruction doesn't resolve the ambiguity are you talking about the code that go the code that goes into it or are you talking about the thing you see on the screen and when the court says page definition it's saying this isn't the displayed page ok this is the  code that defines what will be displayed and that's where we went off track at the trial with mr parker because he was on the stand as a facebook engineer and never read this patent and he gets asked about assembling a cohesive diary page no mention of page definitions so he's sitting there saying well you know out of last thing to display the pages the browser so you have the browser and for facebook assembles the cohesive diary page he was never told and in fact we tried to tell him but the judge will let us that the definition for a cohesive assembly a cohesive diary page involves assembly the page definition well i mean i don't think anybody's really disputed that he itself doesn't come from big pile it's the there sufficient to define the page but they do not display the page and that's the distinction whether i mean how do i know the that distinction is made in the plain instructions first of all that they go with pa page definition ok we have to hold back who because they did with julie their expert and by the way they did not withdraw their expert after bill that testified right before lunch and just after parker had testified they said we're calling our expert diary page to be displayed by combining at the time of the of display the content data with the page design to generate a page definition ok so the page definition is generated by this combination and there's no dispute that the combination occurs by thick pipe that these two pieces come down that the outline information in the content information and that big pipe process has them for confirmation the pages and that sounds like maybe this is that maybe a concrete way that sounds like the picture rather than the specification of where to find picture and the big is not at the time of display combining the picture with the design and i think that it's broader because of the term with the information in there but also point the court that the construction i think maybe the best place to go for something is more black and white if you go to the three six two patent and it's incorporate by reference in the three generates paid instep once you generate means generates page definitions for the section based on the template the universal addresses you are else and the annotations i e the results of the examinations performed by the module here's the one six five further includes a step of instructing the browser to generate web pages based on the page definitions which includes downloading the objects identified by the universal addresses in the page definition so the browser here in our patent is going and getting things based on links u r l and slanders and your your point this language makes it possible to save the page and counsel's argument overlooks the actual claim construction which rembrandt stipulated to and which they are not in a position to challenge and which does not say what they would have to say in order for their arguments to be valid the claim construction says that the definition that page definition is information that completely defines the appearance of a page it's undisputed that  s cascading style sheets for example is information that defines the appearance of a page that dr go back rembrandt's which is just a little i mean i guess i don't understand the specifics but if than it is on page definition and i'm trying to understand the relationship between these two things the page definition i'm having a real hard time understanding what it is that appears on the screen that isn't one hundred percent determined by what he the actual content to be there more than the blueprint it requires both yes the content they that and the page design information tends to be there in order to assemble it you have to have it and the dr gold that admitted that in order that in order to assemble  destruction but that the design in the way it appears there is something that the browser may get someplace else both are things that the browser must get someplace else that is all big pipe do is that is passes turn tell the browser to go someplace else and get additional c s s resources that's all part of the process of formulating the page definition if you will of defining the appearance of the  to get additional c s s resources i mean that's the browser is doing all of that not big right so if i order a collection of books from the library i could care less if the local library needs to go and through for ad one of the affiliate libraries i say i want these books i have specified everything i'm going to get back and everything else is just internal mechanics of fulfilling my page because we know from the broken page illustration of page seven of our brief that's what the information that the pipe sent us rendered by the browser without the browser going elsewhere to do more things that's what would be displayed it's not the page just not the cohesive diary all back it made it difficult he said diary pages the pretty picture with all the content and all the styles it's on page eight of our brief that is what a facebook page looks like that's the cohesive diary page that's what needs to be assemb excuse me to be to the construction of page definition and we haven't even talked about with respect to the three sixteen patent the other areas in which their evidence falls short of a staggering infringement namely the fact that it has to be  be assembling a cohesive diary page which is a page in which content and design are fully integrated for display and he clearly did you argue either here or below that there was some difference between the occur at the time of display and here obviously it's not occurring at that if if if you assume for the sake of argument which we disagree with that a pipe is doing assembly it's not going at the time of display because after big pipe has done everything it does and has passed off as a conduit to the browser the browser has to do all these additional steps before it can display so that what the browser is doing is at the time displayed not what they pipe is doing which is a separate and independent reason why that this appendix in the middle of the page line thirty two it says the diary after that according to them includes a section manager for retrieving the template idea presentation context and presentation context is construed by the court to mean the same as a design that's what defines the parents of the page or what determines the purpose of the page so that the diary applet has a section manager for retrieving the template i e a prescription presentation context corresponding to the template id first section so the diary applet aletta legibly pipe is what's going out and retrieving the page design or the presentation context but big pipe and indisputed leave doesn't do that that's waived because they stipulated to the construction they didn't object to the jury instructions of the of the judge to the jury that they refused the judge's invitation to ask for further construction on this very point so they went and they have an appeal from the plane to school construction so all those are are waivers they have no ability to challenge the claim construction or ask for further clarification of the claim construction at this point and therefore they can't go into the specification to try and vary or modify the claim construction and even if you did that they could get the specification itself and come in seven the at least big guys doesn't go out and get a big pipe again it's just a pass just passes through the h t m l to the browser it doesn't it doesn't go out separately get any doesn't download any formatting information separately any any any downloading of additional formatting information is done by the browser but it defines the way that the visual appearance of the page at least in part well right but then but in order to do assemble  the point the point of the column seven lines thirty two material your honor is that it shows that again even if you ignore their waiver of any attempts to modify the claim construction in their arguments about trying to modify the claim construction based on the specification which is far too late and is way what that information shows is that the embodiment that they're that they're trying to argue about requires the applet to download the page design or the presentation no it doesn't it's at the presentation context which is defined as part defining the pages and not all of them yes or no but that's the same as my point is the presentation context and page design are the same but then what they have to do is just what they're what their patent requires the applet to do is generate a page definition for the presentation of the object that is the constant the page definition being generated from the presentation context and there was exactly fully integrated for display and completely defined the appearance of the page but that is information that completely defines the appearance of the page the information that comes out of a pipe does not completely define the appearance of the page because when you render what the only only what comes out a big pipe you don't get the page you look at the pictures you don't get the appearance you don't get any of that everything has to be done afterwards in order to do that again they could have asked they could have made these arguments to the judge and asked for a clunker struction and the judge then w ruled on whether or not the claim should be construed to be to make specific what they argue but they did they waived all that so that they agreed this can go to the jury under this point instruction the jury was perfectly within its rights to conclude well completely defined the appearance of the page me at least as to crimes why they didn't serve the same right the record doesn't reflect that my point was only that the i got was filed in february where the expert discovery closed in august i believe of the previous year so it statute talks about civil actions under thirteen thirty eight not appeals under twelve ninety five which obviously congress could have done if it had intended to apply stoppel in cases already on appeal and there's also the i d c point your honor that rembrandt's interpretation would lead to the absurd result that i c c determinations are given greater finale and greater respect than the average final judgments of article three district courts because it's clear that in the context of i t c proceedings resolution by the agency in a way that would obviate the need for costly and time consuming and expensive litigation of that issue in district courts are made for the hordes on the idea maybe it's like what judge ever said about the is a practical matter you not going to get your opinion and in the interim since we haven't decided the case and we've done nothing we've got a pending appeal from the i p o and let's assume that's a better quicker panel and they decide the i speaking of formatting information we got excited with ours here made the passage underlined bold and i callate sized for talking about the look we block quote that passage from the patent right at the top of page eleven of the middle of things middle of the middle of the page just above the heavy in the sense that so it's about the fifth line i think it says and as previously described referring of course back to just ten to eleven the three six two patent specification which is incorporated by reference to the three one six expressly describes the browser downloading additional information identified by u r l's on the page definitions when displaying the page there is no there are no examples in the spec in which a page definition does not reference any understand the construction page definition so i can't get your i'm my friends point i think if you were to find that this claim destruction was clear you've done that once with baking bread the seven hundred degrees i think that's a narrow rare situation i think the discussion we've had has made clear that the claim construction is not clear and if anything your points in our direction by saying a page definition but if you decide that the claim that the language of the claim destruction is so clear that you have to all that says is that the an accused product like big pipe could form the page definition with the explicit material but it doesn't prevent it form providing a link that then link to the ultimate material so it's not inconsistent you can do one of the other you can either put all that how it's displayed content in there or you can provide the link as your page definitions so there's no  inconsistency on that infringement point and a lot of the the question that the thing you have to remember is the only evidence we have here is dr cole back ok because after the colloquy with the district court they pulled their expert and so they have no affirmative testimony what seven seven four is in the middle of this colloquy with the court what mr parker said now here's the problem with mr parker he was never told and what's not allowed to be told what these claim construction constructions are he'd never heard the word page definition and we tried to tell him out word to explain that that's the assembling step relates to page definitions not final web pages the judge of the court refused to let us do that repeatedly in fact some of the objections were for adopted under a rationale that was exceeding the direct of course it was exceeding the direct because facebook didn't ask the question it was the district court that asked it on that point the question was asked of the witness and had the word assembly in it and it basically said so your browser does the assembly and big pipe doesn't that is the ultimate issue in this case this is the issue that's driven our entire day most of our day here today it's the issue that drove the trial it was the ultimate issue asked as a leading question by the court to a witness who had never read the pat concerta construction for assembly and then followed up by the court with a statement of well if i think if it's not clear i think i think we can move on something to the effect up i think i've asked enough questions here move on we tried to move on or we tried to get a sidebar the court said no we tried to ask questions that use the claim construction not the word assembly but the use of the word page definition which is key to our case we were prevented from doing that and we think that that with everything we've said today about the jame all issues that they never put in any evidence on this point but that the unfairness that that was exhibited by the district court and how that led t jury to conclude that our case was not a good one on this key central point and one point i will make though is that is if you if you want to see more evidence of gold back and that i was able to give you before judge ten six eighty six and ten six ninety eight and the kind of continuation of those is really where you see her talking at the most about that any other questions that you