we don't want to hear any arguments about claim constructions which have nothing to do with the judgment rendered by the district or here second of all we're concerned about the confidentiality markings in the briefs which are very extensive in  the reason is is that if for example with these patents a particular two five nine patents the accused devices and they well what is accused is the investor deeply embedded in the interest of c c chip and much of  description of the expert testimony in this case this occasion where the appeal largely rests on whether or not there was evidence to raise a tribal issue a fact that much of the evidence from the experts relates to the deeply inside the interest patent time permits i will be commenting on a couple of issues on the two five nine patents of course to the extent the court has questions about that or in response to anything that mr hazell may say of course i may comment further the principal issue upon which the judgment relies overboard on patents was this issue as to whether the software must be installed to have infringement of the apparatus claims i believe that when we start with what was invented by cradle in what is actually claimed in the apparatus claims we think that the court erred below in that the answer is clearly no that the installation configuration of the chip the actual design of the chip the functionalities that are reflected in the claims are the things that are actually is the configuration of the chip itself that's what was meant and perform certainly on the method claims that would be exactly right to actually perform to have the chip actually perform the functions then you would need the software that i think that's completely correct but these claims the claims in this case are apparatus claims just to the configurations of the apparatus have to be configured a certain way according to the plan the apparatus has to have certain things in its architecture that's correct distinction between is only in silicon graphics which i do believe are the two major cases that need to be discussed here is what was the claims in the zone and the claims it's to a c p u in the claim itself specifically says that that the feed to you has an execution unit to execute instructions o instructions that to me is the key to ms o mean line is only as correct of course it's about the processor and about how the process of processes information in that kind of claim clearly you would need to have of the software installed to do that and that's why i think it is only was right on point and right right it's just not this case this case is much much more like still a kind of graphics where this have a couple because it's talking about something in a particular environment that's not the situation that that's correct that's what this court said and is only and talked about the specific environment but when we look further and look at the claims that i do think your honor that actually examining the very specific software which is necessary for the chip to perform the function correctly and if we had written claims that claims that you know did the claims in this case say not a word about software it only talks about the news and then fla talk about being able to do something which can't be done without software they talk about a chip that has the configuration to be able to do something that's all the planes say here in fact if you look at its current you are completely correct signal that's all that's claimed in that's very important because that's what our client invented they went they went away from the typical kind of chip in when to a chip that has the configuration it that has a function in there and you know as i say and do it without the software well it can that's i think really getting into the difference between a method claim and an apparatus claiming yes certainly you needed to be able to do the function  chip has that has to have that configuration that's correct and and it's only software that can achieve that consideration that's where i disagree your honor it's not the software it's a software that allows the chip to actually perform the function that's claimed in functional terms and but that doesn't make it into a hybrid claim that's what this court said in the r ac case and i think this is this is the kind of case that's just like that where it's only talking about the chippy it's like you're arguing that configured means capable of being programmed to do so or not continue to do it now but if that's what you would claim then you could have used that language not your to do it has to be able to do well infringing products can't do without further progress right with the on the last thing you want to set a completely agree with that but again the claim is just to the chip software it's not just to  it's configured to be in state five in state sex life there just isn't configured to do that unless it's for this program well i've again i know we're going a little bit round and round on this i believe that the should be understood because it doesn't say that it actually does it that's what the method claim does in the apparatus claim here where if it's really this is about the specific way you make the chip work but let me move on i  isn't the question with respect to the series four in series five is whether there's an automatic hydel model that's one of the issues that involved in four or five that's correct but it can then those can infringe unless there's an anything because you're asking us to read technical documents as though they were in english and they're not and we can understand them you gotta lie on your expert right in the in the  right but i again i know that that our expert looked at the documents interpreted the documents i think you're exactly right there and that's what that's why we should have had a trial he says i understand what this document is teaching in this doctrine is teaching that the functionality is hardwired testimony existing with respect to these two items yeah and i believe that it also relates to this whole smart smart idol in dynamic dependency issue because the the argument here there's no doubt talked about the fact that for certain for certain of the empty seats the dynamic dependency is always enabled and what does that mean that means that there's a fact dispute here they don't have much of what i'm saying to you and position was with respect to the other two because they were not an evil they needed to be enabled in order to work for the other two yes i believe on the smart idle depended dynamic dependency that's always going is i think that there is also the evidence if i could refer the court to the fifty nine twenty five to twenty six where i think in the context of that discussion the expert also says that the dynamic which is one of the ones that has to be set and the discussion of smart idlers is actually more general discussion about rather than pointing to a specific m t c it's more the the way that it works so would apply as well to robinson's opinion which i think is very was very important to her decision and i think it's very important here is she not in determining whether to travel issue of fact one not only looks at the attorney's arguments and what the expert says but one looks at what the expert relies on to support what he says and time after time here as we pointed out to the district court what the expert says is unsupported by the evidence which he relies and that is specifically the case with the man from the m m if you look at the record  evidence of the expert is relying on the testimony of a t i a engineer when asked with respect to these modules is it hardwired he said it may be but i would need to check the coat i believe it's environment five is only one of the clocks in the e mail there are other clocks in the game if and as the court didn't address this in its motion but it did refer to the fact and in discussing it that there the second bullet on which will it where i think where the eighteen forty seven it says it has a quote the image can get off the f line yeah the next century says that it can gated off only when it's in a refreshed mode and the  she went through is not an expert we're do you have a refutation of the appropriateness of relying on these documents where the point that he penned to make if we look at page thirty nine in our brief right we cite the evidence that says that the email ability to turn itself off is controlled by the p r c i'm the p r c m is the is an extra off the f lock says that it can all only do that when the memory isn't refreshed mode and the l three interconnect which the record reflects is what connects the email to the to the process so the statement for that would be based on the request coming from the r c m p yes that's the idle request we're talking about and where is the other rooms it's in the third violin fortunately it's j s six five six seven dash six a paragraph four fifty nine than some statement in the old maps free device that said it had that ability and the attorney argument is as well because it was in the old map three it must be any o matter for them and that the defense attorney argument there's no expert to say that and if the board has other questions on the two five nine it be happy to answer them i don't know whether the court has one issue i do want to just discuss about the omega three which is not support which was not the an issue the judge robinson ruled on but is based on a claim construction that she ruled on a stipulation of not infringement based on that claim construction and that the item memory transfer control and just the briefly this supported repeatedly and that's where the idle memory transfer control does and is the one thing i want to indicate is that i'm sure the port looks this claim construction initially i thought it was fairly specific when it got down not only the but the values in the bits the values in the bits don't make any difference to the appeal because they stipulated not infringe one which is both literal and and in fact an equivalence they didn't stipulate just of not being able to the values where they would change from zero to one or one of the zero is irrelevant to sustaining the judgement but this is the case i think if you look at this press with patient balance four and five numerous times they specifically say what is the state of bits  those three important bits in terminating the what what an idle memory transfer controller is and how it differentiates it in figure four for example from the other states in which the  the one thing i would say is the evidence in this case different than many of the other cases where where circumstantial evidence is relied on there is affirmative evidence in this case it's c i s customers in fact do not use the har all let alone do they program it in the one of the three methods which is accused of infringement and i think that dispositive of both the method claim and the claim that the device is ever configured finally the particular demonstration there was a question of the to the engineer in the engineer clearly was not testifying in terms of the claim limitations and simply said that they demonstrated in combo mode as well as the other three modes but if you look at the slide deck that was used it was simply to catch and release the semaphores and to see how fast in each of them you can catch and release the semaphores what's missing is any mapping of the demonstration and the software that was used in the demonstration to the claims and that's particularly telling here i believe because that code was produced the cradle and while cradle in several other places attempts to rely on their experts reading of the  code sometimes erroneous way they rely on code with experts at the guess for speculate what it is in this case that expert who didn't know testimony as to what the code did and what's missing for example is any mapping or monitoring of the shared various some for interrupt self for the simple for some a for sale in the center for interrupt enable cell which all has states which are associated with shared resources shared resources weren't there and because the shared resources weren't there method claim six wasn't practice because one of the elements of method claim six is that after the turn getting the semaphores indicating that the shared resources available actually accessing the shared resource and there was no shared resource here there was no evidence that the from the what the code was as to what was used or simply the expert referring to the test points as i demonstrated in these three modes simply how fast you could access the sample four hundred times and then tell me court's interpretation so if any part of the supports interpretation goes out then the stipulation doesn't apply it's only to the entirety of the court's construction that's why we were appealing it in frankly i do think that that was one of the best examples of w bits or three using start logic the cloning one which is what this is about is only about the fact that the m p c's are activated not how they're activated is she put the whole out from the preferred embod that's why we think they were the discussion that you had that the court had with mr haslam about the the evidence of the record i think really kind of proves the point as to as to why it is just a fact dispute  our expert and we talked about some of them and i was able to find the other references to where he talks about why interpreted in the t i technical documents and wide supports our position  would also refer to paragraphs twenty one and twenty two on fifty nine twenty eight to twenty nine and he refers back again to his earlier part of his initial report which are paragraphs one thirty nine  forty five which i believe we can find it for two to five to four three to seven and that's a detailed discussion by the acts by our expert as to why looking at the t i documents why he believes that the appropriate you the hard wiring or settings have taken place this is a clock's plastic factor speak and they're expert to have a different view and that's fine but that's really why we should have a trial of the two five night packed