question but there was a fair amount of focus on the d s u case in the previous argument and that argument applies with candidly even greater force in this particular case because in order to establish induced infringement in our case there clearly has to have been a finding of specific intent and the administrative law judge clearly with rick rejected the idea that specific intent was required indeed the last line on a four forty nine is that in that intends to induce infringement because qualcomm provides customers with the system determination code that may be sufficient for general intent but that doesn't remotely satisfy the standards of d s u and it's not the  instructions training updates marketing customer support weidner not well there are two answers to that first of all that's not the finding that was made by the commission and generally this court's on position to a farm  specific intent of terminations on the ground different from the one that the commission itself is adopted so at a minimum you have to vacate in light of yes you can send it back and then of course the commission will be free to consider that evidence if you ask me as a matter of law whether i think the commission can get there i'd say the answer is because i think there's plenty of evidence that we acted with largely indifferent would largely with indifference as to whether this particular mode was used because we left it to all our customers to modify the source code to provide any kind of better saving they chose to provide to be sure we we touted the fact that there was going to be available the options to try to save power that was clearly a fact and we would be foolish not to promote it on that basis but the bottom line here is that is the case comes to the commission solely on the basis of induced infringement and the commission has made a finding was based solely on general intent and no effort to comply with this course decision in d s u at a very minimum the court  and send it back now i realize there are you know significantly broader issues that are implicated in this particular case and candidly the court may not ever need to get to them if it simply follows what to my mind is the easiest course which is simply to recognize specific intent wasn't communication different from the first wireless communication and our understanding of that claim is pretty straightforward we say a communication means a communication and character and difference and the difference is sufficient to satisfy that language now broadcom made an argument there are no really if you read the context of this particular that network ation which is what you see is that you're talking about inner interface protocols you know sort of fundamentally different systems of providing the commission rejected that and and broadcom hasn't really raised that issue as it comes or instead the commission adopted what are called methods of communication now the term method of communication is not language that appears anywhere certainly on the client doesn't appear anywhere in the specification so we are left to try to figure out where you in court and incorporate or import into the claim this particular limitation are you saying that when it says works wireless communication second wireless communication that that just simply means of a communicate to communication who better if you're capable of to communication i think what easier way of what happened the full consequences could that possibly be well to warrant winning that in a quite a while it would seem to me that at least one of the possibilities would be voice communication and data communication are two different communications and therefore you could well want to make sure that you cover both of them but the key to this i think judge loon is not does every word of the claim have to have some great inventive genius to it but rather a party who is trying to figure out what does this claim relate to and what is it looking at reading this would say well this isn't this isn't relate to methods of communication this just relates to different communications and therefore if you go to the prior art and you look at sites and boris and more each of which specifically references both voice and data communication and do are let molds your natural inclination would be to say well this that they speak directly to this and that's why the committee says look in value very clearly at the specification nine fifty six sixty one right i want to support for a first of all none of those are limitations they're all written in broad language they're all included or maybe included several there's nothing in there that reflects many referencing different of the entire disclosure here they're calling it the different types of communication judge react to you have to recognize that when you when you're reading this entire in terms of the entire disclosure that a significant portion of the disclosure in this particular patent was restricted remember there were two inventions embodied in this in this application one of which they abandoned and the one they abandoned was the different methods of communication the different devices the different transceivers they could go from one to another so the fact that you have some of that language in here shouldn't come as a huge surprise especially when you talk about the background for the invention because that part of the adventure speaks directly to those methods of communication the problem is when you get to the specific claim here for the battery saving feature for this notion of control frequency of scanning for access when you get to that point it's just a communication different from oh that's a different emails or two different phone calls i mean we can take your different argument to the other extreme as well you have to put some context on the word different don't you well sure and so they found really has to be different found context you would not get it is just two different e mails right think the easiest way to think about this is voice versus versus data as as the two differences and what a support that in the specification well if you look at forty it both both on eleven figure  level and all figure forty seven when you're talking specifically there's nothing that remotely restricts the things or the communications to different methods of communication and indeed at least for my money the hardest part for them to try to explain away column thirty nine on the thirty seven or eight on down because the first quarter talks about access point provides for communication via one type ok what is this thirty thirty two thirty nine column thirty nine going thirty two line thirty two and right it says the access point for fourteen or nine provides for communication via one type of radio communication while access point provides for another they talk about types methods of communication read the next paragraph in addition access points might also exist in a single network providing multiple communication pass in case one access point fails it becomes overloaded suggesting at least as i read that clearly that they don't envision different methods of communication they simply mean a communication different from another communication and while that language is to be sure capacious there is no reason in the world to impose any specific limitations that do violence comprising reduced power mode and being interrupted to use these communication to transmit data to access points so that the two different communications that are referent through are different ways you use to transmit data and normally when you're talking about different ways to transmit data you're talking about different methods different systems different structure and sort of something so i think the answer that it's twofold first of all that it's not consistent with the way the specification plays out because they're not talking about math that's if you look at column thirty nine in the language i wrote that's clearly not talking about different methods sorry about the central of the same method of communication and second of all this however we want to describe the concept of voice and data mechanisms of communication it seems to me quite clear that the  specific and recognising that that exists and that anyone reading a communication different from a second community a second communication different from a first communication would say that what we're talking at a minimum you're talking about the difference between voice and i just want to take a second on that because just because the other part of the anticipation argument is the sense and there i don't think there's any question that under anybody's interpretation if there's differ methods are clearly different methods of communication that are embodied in the g s m standards because they're talking about two different fundamental frequencies one that operates primarily united states now that operates primarily in europe so they're talking fundamentally different methods of communication and the only argument really that was made by the commission in that context is that these net these worldwide standards that are designed in fact provide the basis upon which every mobile communication is going to be functioning was somehow concealed from the public and one that's a really counterintuitive notion but second the evidence is quite clear that this was freely available problem it seems to me from my understanding of the way they work you can correct me if this is not really a fair characterization but it is more like name with a with the p v it's a single reference even though it has thousands of articles back through in order to make a single document that would be rather only understandable and to provide it really differences would appear is going to give you the answer to everything in the whole world what this is designed to do is to give you the answer on how to run a mobile we're going to completely ignore that when in reality what the g a o some standard is designed to do is to say to the world this is the way to handle all of the various aspects of this particular cell technology including specifically the one that's at issue in this particular case  and it does so well in advance of the patent that's being applied for here and therefore if you simply turn to it you would know that that's already been anticipated seems to me the answer the better way to pursue it is to recognize that that this is a source of extraordinary knowledge and use it as a as a hedge against expansive patent rights rather than to ignore those kinds of claims that are rallying or person of skill in the art be expected to understand the entire d s m standard  testified and i have to be sure i don't know whether she's the standard she is probably the world's premier expert and she wrote an entire book evaluating all important aspects of it and so therefore i would say that the person under th  but i don't know that there was any specific testimony on that because again i don't think you should try i don't see any reason why you would adopt an arbitrary restriction on the sources of information that anticipate heads so in the first place i would reject the way the commission analyzed that particular problem and then if you want to vacate and remained to the commission to take up some of the other issues that's fine but i don't i think that the the bottom my dear is that there are you know if if this claim was properly considered no matter how that into account and again it seems to me we're talking about potentially crippling the entire global wireless mobile industry and it at a minimum the court ought to be confident of the nature of the patent claims here an obvious before goes down th have i could imagine a cease and desist army i do think the cease and desist order here has to go by the wayside for it because of the nature of the rest of the way the remedial scheme operates because i think all the rest of it is clearly beyond the power of the commission to implement a commission complaint broadcom had control over its complaint secondly and relatedly we were not found to violate the statute that is we think fundamental is a fundamental the order sweeps against us just about qualcomm chops and i should also say one thing that i think is undisputed is that the quote infringement itself is not the chips or chip sets it's when in fact there is the use of the software the enabling software and our final point in which we share a very strong perspective is that this record is bear with respect to substantial evidence of infringement it was they chose their case they put on their case it was an extraordinarily weak case it doesn't come close to substantial evidence i hope to spend my time depending upon the courts of questions on the statute then my colleague mr frost is going to speak with respect to the arbitrary and capricious nature of the order and the lack of substantial evidence as to certain  entities and then my colleague mr to status will talk about procedural issues which i will talk to and speak to the video the court's questions in terms of procedural flaws he will speak to the due process implications that would flow if the court does not accept our interpretation of the statute so let me turn to the statute itself the one and two we think the one is  clear it requires for a limited exclusion order for there in fact to be a determination would also have to articles but a person violating the provision we were not found to violate the commission i said this in several places i would like to quote from page eighty eighty three a very short quote but it makes what we think is the fundamental case ending point as to us we should be out and relieved of this litigation nightmare here's what the commission said we begin with the threshold question of whether the commission has authority to issue down stream relief where as here the downstream products are manufactured by parties not having been found in violation of section three thirty persons your honor if i may want to reduce the entirety of the one deal one goes on to say imported by any person violating the provision of this section and that combines with the two if there is any lack of clarity prior to the one nine hundred ninety four in terms of the reach of permissions power congress has now spoken in chevron step one language precisely and specifically to the question of hand because of the very kind of authority exercised here sweeping an entire industry the gap panel determined in the way in one nine hundred eighty s that this was in violation of our solemn obligations under the general agreement congress specifically focused on that and you have in the briefs very clear articulations by in both the senate report and the house report explaining the language of d two that is if there is any doubt under the want and there shouldn't be in light a person violating the section then the two fills it any commission and the commission has frankly not dealt with this in a very what shall i say articulable manner when one reads its analysis of its authority its sweeps past that shall be limited to persons determined by the commission to be violating this section why doesn't the appear to read that section to mean because i agree with your trainer the focus is on the persons determined by the commission which is what we have here articles that are manufactured i walk on your honor first i would guide the court to focus on the gat analysis and why that kind questions why is that because of national origin treatment a disparate clear could not do that and that's what gets said in congress agreed that district court an injunction could not do that domestically and some of the national treatment provisions requires this but let me move to a procedural point because i think our procedural point also answers the question we have been determined the even though there was no violation again proved it was total lack of substantial evidence we were tonight rights under three thirty seven c three thirty seven c says notice opportunity to be her the opportunity quoting from the language of the statute each determination should be made on the record after notice an opportunity for a hearing we were excluded from this we were named to begin with and then the efforts at intervention at the liabilit construction of who i suppose you could read the persons determined by the commission i mean articles of persons even though you have to read th but does not still have a problem when you read the rest of the clause which said to determine by the commission persians determined by the commission to be biased your point is now when a person has been determined to violate so  utterly lacking here because of the one hand sat a single sand sock and set for the european market with a completely different different regime that simply does work but if i can make it i say my time is expired tom to go after this entire chip unity of folks around the world and entire industry then prove to the commission that you need a general exclusion where the we think the language of the stature of the structure absolutely clear and it all begins with the complaint why didn't they name us if those are the articles of use of this is basic fairness we should have had the opportunity to be heard they control the complain the comments of the corps with respect to confidentiality suggest we don't know what the allegations are and different response a palace here had different bodies of information at different times the point is there is a veil of ignorance there is no opportunity for us to be put on notice with respect to this but say this this provision of see we think is absolutely clear and goes back to the very beginning amely a complaint now if you raise the general exclusion order issue and i i think you're quite right it too appears to be the way you can get to a general exclusion order through the exceptions to the general more restrictive language of the two but if i understand prior to nine hundred ninety four and there was one that wasn't denominat yet the commission was issuing general exclusion waters time on occasion i take it so my question is if the commission could take one including its language about imported by any person piling provision of their power with respect to general exclusion which congress has essentially we're going to permit permit that to go even though it's controversy all in the international trade community and i think that what congress was trying to say here is very simple if you want to exclude articles of motorola samsung you name them in the complaint you know who they are and you name them in the complaint you don't see it which is exactly what happened here the functional equivalent demonstrate in order to vindicate the policies of of the statute so we do not quarrel with the possibility that there is power on the part of the commission to issue a general exclusion order with respect to demonstrate it the provisions of d to a today there are three fatal flaws in the order they require vacation of that order which i briefly discussed the first is the commission's decision to out of the blue and without warning exclude cor selection not to pursue a grounding in scoring devices and against the commission's longstanding policy to grant relief no broader then requested by the complainant the commission arbitrarily without warning of the commission to be used this discretion by excluding downstream products that all the commission consider the total exclusion of all products containing qualcomm chips and rejected it as too harmful to third parties especially wireless networks and is contrary to the public interest broadcom suggested remedy fared no better and was likewise rejected it's harmful to their parties when contrary to the public interest the commission that's all right i've heard it before opening it up and giving everyone noted isn't that neat to process not that it's way too late your honor because at that point liability is already been established and what we're talking about here principally is our ability to defend against a finding  least sixteen different manufacturers and wireless devices without either of those companies or their devices actually being before the i t c i didn't happen that they were allowed to present defenses of not infringement how did it happen that they were allowed to present defenses of invalidity to its amassed their own set of prior art against these patents how did this happen the due process clause would never have allowed that to happen the district court longer tongue markets where are you trying to convince us you really didn't follow this at all well first of all your honor with respect to the members of this industry the there is no record so i can't tell you what the record reflect that's one of the problems here but another one of the problems about not follow it is that we're talking about members of industry that are located in the united states in many cases and they certainly under forty four u s c fifty no wait are not presumed website and find a list of all of its licensees that would not have been much more the basic due diligence to fight it out we know from the late that notice reasonably calculated to apprise potential response is what's necessary the federal register notice isn't enough there and with regard to the general exclusion order requirements in the section two subsection of the two session three thirty seven those requirements roughly parallel the situations where under m publication notices enough it's where it's difficult to identify all of the possible respondents or whether or where it's otherwise necessary the best you can do is publication notice that malaysia says that's ok with regard to process we just in later litigation or in the same case against manufacturers like ours the read the statute it talks about limited to persons determined by the commission could be violating yes that this again comes into section three hundred seventy two  seven d and is now such as three hundred seventy one at the commission does have authority where appropriate to issue orders extended to downstream products provided it applies purpose a proper test and the commission in this instance and in that i asked mr starr whether that that section shouldn't properly be read as if it meant articles limit it to exclude articles limited to the articles of person determine and it seems to me that that's not entirely the right way to look at the statute and that and that you have a problem in depending the application of this that you relied on the hyundai case but in that case be there with one person one named party who was doing all of the  downstream products where the products of hyundai this is very different isn't it why not require naming the different downstream party at that why not simply previously by the mandate court as a proper balance of test for the employer and all of them appear as what to do what of that fact is unique to determining whether it downstream product should be excluded from entry statutory right and the statute requires that the commission publish the federal register notice informing giving information about the con about the investigation the station and the commission did just that here and by the title replete with evidence that they and other parties had actual notice well prior to that time you can get a win a title with the time we have condition as a matter of right and i believe that that would have been something for the judge decide whether the know the commission has has has a has a presumption that it will allow parties to intervene when they when they move in a timely fashion and meet the criteria for intervention be effected by the letter and the fact that they waited till two weeks before the commission finally issues determination and no other participant had a chance to to respond does not mean that they were entitled to and if anything else any of the fair notice of i'm just briefly addressing some of the issues that mr carter is  that will it's almost impossible to prove and in ten to and do see in cringe meant because people could always raise the validity defense but didn't we are we in almost the same posture with willfulness and in seagate we still raised the bar for willful infringement it will being someone a good reason we make it hard to prove inducement it is indirect after all so we do make it tough in this intent is the critical aspect of that we're honoring enough the difficulty of proving indirect imprint in this case and this again in this case there was there is no there is no finding of in invalidity anywhere yet in this case it's so clear the findings here on this peer were far more extensive than what we talked about a little bit earlier first of all there was a finding of direct infringement by qualcomm chips themselves judge below found that the chips not only is there a desire to show not only is qualcomm recommending that he have said makers implement these features not only are they knowingly inducing them to quote reduce the frequency of scanning for access points which is precisely what the patent calls for but he found they had knowledge of the infringing acts mean what he found here was they had courage them they t though they directed them they had knowledge of infringing effects not just of conduct but infringing acts in the file and that they intended to induce infringement and he was cognizant of this sort of general and specific idea because he points out that this constitutes this conduct more than just general arguments this constitutes a showing that qualcomm head knowledge is infringing atlas but where he says that that they had knowledge of the infringement and it tended to induce it now in the old days before the issue arguably all he had to show was knowledge of an act that turns out later to infringe here he's saying they've got knowledge of instruction on this claim construction they conceded infringement their expert testified he didn't even test the customer chips their expert did not even test the customer's chips they conceded that if they couldn't change the claim construction they had a clear situation of infringement which is why the chips were filed to a fridge and they were found with french in the cell phones and on the networks so this interplay between the claim construction argument and the intent if they really believe reading the sorensen case that different meant any kind of difference such as mr philips was suggesting to us there's a simple difference between if you only basis it's claim construction that's enough there's clearly no law but i would say here that claim construction that they're investing now is far fetched and i want to turn to that next but just to close the point on the inducement i want to make it clear there was a finding of direct infringement and then working with these customers on a regular repeated basis after knowledge of the claims of the patent and directing them and recommending to them that they implement these been receiving features on a construction i mean it is judge blue carefully through the specification just as the court did insurgent case and he filed in many many places to fix first he filed lawsuit descriptions of the invention that indicated it was an invention that works with two different methods of communication judge reader referred to column for and clearly there were referring to different methods like wired la operating characteristics for conducting good communications on different sub networks this is a description of the invention itself and it goes on to say that these different subject works could include how would you deal with that particular pattern that plays right into what judge bolt file as as he pointed out the paragraph or mediately preceding that makes crystal clear that this is this device works when you hit up one type of radio communication and then another type of radio communication and it gives some examples but then goes on a says going to shit in addition you can also do other things that doesn't mean it doesn't mean two column forty two line twenty two steps point blank the present invention contemplates various combinations of communication technologies all accommodated by communication modules there is simply is working on two different communications methodology but they have protect that or mr philips reference that you refer to in column thirty nine b in addition language yes it is  a reference to figure forty seven and in addition with reference to the figure born seven talks about access points fourteen zero nine and fourteen thirteen might also exist on a single network oh and if it's not in addition to a system such as outlined in figure forty seven this is an in addition meaning in the alternative