the next case for argument is well one fixed up and nine information technologies versus research in motion to the heart of it and that is the j miles should be reversed and it should be reversed because the claim construction that was given to the jury does not require that the connection be established in the past tense before the transmitting the contents of the mail box well that's the confusion here right and i don't know if you want to come to this a claim construction issue or what exactly what it is but leaving aside all the waiver arguments that have been made the jury reading of the jury instruction is that all that has to happen for the establishing a connection subset is the initiation of wireless communication that's specifically what it says this is the j anyone seventeen at the bottom of the page  actually back on line seventeen is it said there is a further limitation on this subject that later in claim one so that to me that's the glue that kept all along the judge was on board with the claim construction that would have meant that the establishment establishing does not have to proceed transmitting is that your view of how this case went down that the judge was agnostic about whether or not that to be completed i am quite certain the judge was back and forth on the issue i mean  clear from the multiple clinton structures before the case is subjective intent i don't think is overly important but but really the key to that question if you want to go to the subjective intent of the judges at the charge conference and this really answers all the waiver questions and all the admission questions and all of that gets swept away by j sixteen forty this is not the j mile argument in the middle of the case this is the charge conference and at this conference is all i'm going to give me the page number again sure it's sixteen for eighty and this really does have everything at the top of the page of sixteen for eighty the ram establishing step is not completed with the initiation and the judge said i can add sentences to clarify that because i think everybody viewed the jury instructions as not being dispositive on a contrary to what the court for initial observation here and then he said the connection must be about just part of the step that with him using and he said well i don't think it's fair and then the judge where speaks for a while and then it eighteen one thousand it goes so let me try the language that i just mouth for myself which is the connection must be established part of this and yet sometimes it goes through my brain never makes it the paper and you may have to object it never made it to paper the jury instruction that was given which we've just talked about and i'd like all the witness but you skipped something in the narrative here because if you look at what the court said on lines eleven to seventeen because i don't think it's fair to argue that preparation to establish a connection or start a connection completes that step when viewed in connection with the we're in call right at that point his inclination was and he said i don't understand the point of to be arguing that quite frankly right  isn't that i mean so doesn't that suggest i mean i don't think you're right i mean i'm going to suggest that we're looking just at this injective of ten to the court but we're looking at what was on the record that everybody was on the same page and that the establishing step had to be concluded before the transmitting so i disagree wholeheartedly because as i just pointed at the top of the page rim was clear that what was going to be argued moving go through every page of the back and forth and if the court thinks that the judge was always of one mind they're going to argue from this jury charge is that initiating is sufficient so i don't agree with any statement that everyone was in agreement i think rim knew that the bottom people weren't in agreement and this is concrete black and white that said so he says all know if we leave the jury instructions where they are they're going to argue in the shooting is sufficient if we walk and then the judge said well i don't know about that maybe i can add this really strong language and then he said let me think about it and then he case comes generally it seems to me to two things leaving aside all of the discussion about a waiver an admissions we first have to determine what the actual jury instruction was and then when we make that determination we have to decide whether that represented a correct construction of the playing correct right not so much because because ram is not challenged our position is and i'd like to walk through it just a but let me i mean we have the jury instruction and there's a dispute here piers about what was meant in the jury instruction correct i totally agree with that and then if we conclude that the doesn't have to perceive that all you need is initiation ok so there's the text of the claim to stablish ng is an active term the where in client at the very bottom of the claim and you did stablished they could have used established at the front of the claim and this goes to bulk questions the proper construction of the jury instruction and the proper claim constructible to the clean use of stablish or establishing and we see that in the specification right and you know i mean it seems to me look at when we're trying to determine what a stablish ing as used in the claims of the specification means yes and i agree and that's very supportive of our position at the bottom of the quote it says there's three steps that have to have  transmitting and then accepting that the construction is that does a stabbing have to happen before transmission ok established is a where in clause that was added during prosecution at the bottom there's no if the court had meant why you should have this temple requirement imo if you look at the other limitations though it's quite clear there's some temporal requirement in this claim right because you can't do certain things without having done the up when you talk about transmitting the contents of the mailbox and then you say except in the contents of the mailbox one has to happen before the well this is this concept of logic right this is this concept that logically that's what has to happen have to be a sequence so i would say first of all the fact that there's an argument the  a logic doesn't make that a legal requirement no i'm not talking about technological logic i'm just talking about regular words that you transmit something to the mailbox and then you accept the contents of the mailbox i mean the stuff one has to happen before the other it makes no sense writing them no sense of logic and that is not true on the technology here we we work this through in our brief making the point that you can initiate a communication and a claim that says sept see could occur before step b because that would be contrary to any notion of plain language ability but that's the risk of having a layperson read this when the technologists are saying you can initiate a communication on the climate where i meant that issue in the j mile and i think that what i just have to go back to the core point that that we started with i do not believe that this jury instruction clearly says any lay juror that there is a requirement that says initiating the nuff for the sub step to be met and then it says there is a further limitation on the subset later in claim one and then it talks about the important question of threshold condition is that the whole point of the wearing box well we're thank you your honor may i please the court of patrick philbin for the blackberry parties cars i'd like to try to cover four points today first there was no change in the claim construction second the claim construction was correct as to the order and steps third there wasn't substantial necessary can i ask you one sort of housekeeping question before hand am i wrong or right that the with the pardons had agreed early on or something that the we're in twelve at the very conclusion of the plane went to that establishing limitation that was in the court's first claim construction order about two years before trial has not been challenged so that is set in stone for here and here as i'd like to cut directly to the jury instruction because i think that the best way to get to the heart of and see your position is the jury instructions was clear absolutely your honor it was clear it was clear for the reasons you were pointing out there are because there is a phrase there and i was looking at a sixteen five seventy which is this other clause is a limitation on that subject that's clear and has done as part of it that is further confirmed by the verdict form at j a sixteen seven forty one because if you look at the verdict form the judge broke out each step for the jurors and in the establishing connection subs that included there the language connection established past tense based on its racial condition the only way that the jury could answer yes to that box on the verdict form f establishing connection subs that is to say yes this language of connection is established based on social condition was satisfied in that step and you are that's why it's based on these reasons that the district court when it looked at enjoying the charge conference i just want to point out i think the judge is making it very clear he said i don't think it's fair to argue that preparation to establish a connection or starting to establish a connection that step when viewed in light of the  don't want to leave the jury with that impression mr ryan said well that never made it into the jury instructions i don't believe that's correct or this colloquy during the charge conference was about a draft set of the jury instruction the final jury instructions have the district court of five was correct because the claim specification and the prosecution history all supporting orderings but generally our cases say that there's no temple requirement associated with all of the stuff and i'm at this point right through certainly that there's no presumption  that where there are indications in the intrinsic evidence of an order you know steps by logic by grammar and by the prosecution history specification that these will impose an order in the steps the function media versus google case example we also cite others combined systems versus defense technology there are multiple ones and one of the key points is logic when there is a step that says that was a connection and another step in that has to use that connection which is the transmitting of step logic implies that you have to do one before the other and the same is true as was pointing out when you have transmitted the contents of the mailbox and accepting that i think that i think i mean if you look at the technology obviously the fact that you do it proves the point right that establishing does not have to preceding the lead and before transmit it was a technological matter that's not necessary whereas the mailbox might be something different if you say that you can just transmit and that's it you read the establishing that no well i understand that i mean it serves no function and the key is that that transmitting have to take place over the connection so there has to be a connection created to them to be used for the transfer and if you see their protest if it will look all you have to do is initiate you just put a header on the message soon as you put a header on the message before anything was outside one is critically dependent on the where in clause where in five has to be understood in light of the prosecution's history when the patent application was first made there wasn't a worry in clause in this language about based on a threshold condition in the unit and the claims they were all critical because it said that the trigger for what's going to have this delivering take place is a threshold condition and that was critical because prior art taught a method of having a handheld device access the mailbox or communes periodically  based on the lapse of time so it was essential for this pattern to be valid that it has some limiting mechanism a trigger event that has a temporal aspect in terms of when these other things are going to happen is based on some lines now and it says wherein the connection is established based on a threshold condition that becomes the critical trigger gateway for determining when everything else happens if you decouple transmitting if you allow transmitting to go ahead without having satisfied the conditions of the where in clause you've obliterated the function of the where enclosed and transmitting without any connection to that threshold condition and that threshold condition is supposed to be the key regulator the trigger that determines there's a prosecution history in the where in clause and there's the soul and body in the specification and this court cases like restaurants vs invacare suggests that when there is a sole environment and there are other indications of a limitation that is evidence that is important here you are arguing in the alternative even if there were a change the district court rightly held that any error was harmless because m formation could not identify and the additional evidence would have presented it had to know about the new construction earlier is that really the way the law works if the judge clearly changes the claim construction after the jury trial then the burden is placed on the patentee or on the other party to establish that it would have presented your honor  so if there was a change that constituted error the district court rightly examined everything that they said meaning that went into the district court of the motion for new trial and said this was unfair they changed construction we would have done this and he probed into that and he verdict and you have to think of this divided into why five and so your operation and why fly operation there's no infringement because a black for a handheld device requests the connection to the server the patent has a limitation saying without a request here the operation of the devices is undisputed it's all an argument about how you characterize the facts and the handheld device clearly requested t c p connection with the server that connection is maintained it stays up and all further communication that something takes place inside the server just putting a header on the message wrapping the g m u header on the message and selecting the port that's going to go out of selecting the so your word nothing moves beyond a server not a single electron they say that is has to be then an event or an action that extends across space the joining together those two spaces it can't be something that occurs only inside the server and here they didn't point to anything that was outside the server and actually goes to the handheld device in congress of their position i think was best shown when their expert was asked to trial if you had a hand held that was smashed in the new p c was obliterated from use that was a connection with it and he said yes because in their view all you have to do to establish a connection you two points one is focusing on what's the source of the legal requirement for the temporal sequence between sub dept one and two and we all agreed sound like that the general rule is that there is no such requirement and as the colloquy there has made clear that the specification doesn't invest any importance in that sequence whatsoever there's one embodiment that's actually ambiguous and that's in our papers we don't need it so the patent isn't the source of it so then it's the logic of the technology what i would ask the court to do is think about rethink about this and reframe it this way whether you could establish the connection simultaneous or interleaved with transmitting the contents is a technological question that was presented by expert testimony to the jury to consider that's really the way to think about the same for the for judge of the state is a legal requirement because we think it's logical that a happens before b when that's not so and there's examples in the record that make it not first is that's essentially it's too broad because it would cover push technology the path is clear that all protocols are covered exactly contemplate the situation where you're pushing things over the internet that's how the admin the court that's how the internet works if you have the headers with the packet it mean own manual stolen art art and our papers their manuals admit their connections there is a connection established in their system they can't deny that it is over the internet so it's done with with the payload going over the line but that's exactly contemplated the second point that i want to get to is i would just ask in terms of the jury instruction we have the written one and i pointed to that and i think i was corrected that it's better to look at the the transcript because it doesn't have the pretty headings and all the organization that makes this maybe what made it so obvious to the court that this is what it says and says to a normal human being if you say the establishing connection stat met when you initiate the communication that's the time when it's complete and then you say and it's a further limitation and that is nowhere in clause and then it talked at length about the threshold condition which is what matters and then at the bottom of that it says and the connection is that abolition after you know you actually do whatever you do it may it seems to me under that condition that to say that the jury would know that that initiating wireless communication wasn't enough how could they  what the construction is being given to them makes no sense to me so it's a minimum to fit them big us within the court alluded to it at a minimum it in big ideas do not give in it would completely eliminate that claim construction and the word establishing a connection to say that have to be complete why would any of that language be in there it has no purpose it's complete to purplish so it would be a limit on the point yes but a point is that there was also expert testimony that the port this is a report that by selecting a port and selecting the destination that you is faberge the connection and i think there we should again be different to the expert f a a that's even under the jury instruction as one of the alternative readings right with n f l thank you