administered using a computerized they can says it's not a patent on the rider on the contract itself but they base their case on accused waters and the evidence and their argument always talk about accused writers and then now they say although this doesn't cover a contract that it's impossible to distort in the twenty first century without using computers look it has three fundamental problems used to overcome your first the undisputed evidence that transamerica had no automatic automated computer system in place to perform all the steps of thirty five second that it has bank account so this isn't just a matter of bank account balances and watching them in the singles computer system predicts often the money comes from the customers back account that account is managed by the vantage system post exhaustion the money is insurance company money it's a different if it's money paid by the insurance company the venture system cannot process that and that was the evidence so the payments are taken out of it until the find infringing act we didn't challenge the jury instruction itself because the jury instruction the jury was told choosers either you're doing everything you or your father's friends mark is doing everything well you find they're obligated to do everything i did the case law  the score is that if you have something in your hand that just got everything in there and you're obligated to do it physically do it that's actually a turn the switch on i think that's the ok i tell you i'm going to bake an apple pie and you say i want to use this record p it's patented by somebody now and i find a contract saying i will bake you this apple pie according to this recipe i then do not actually ever bake anybody reading this patent was from the year with state street would know that this patent was likely valid under state streets concrete and tangible result test when you read that you know state street you look at this point it's likely valid anybody who knows i think whether state street would be state street you're right but i think in the patent bar the concrete chest people would have looked at this happened under state street and believed it likely f still the same but this court had entered a number of intervening cases and under those intervening cases it would have good ol no sane and possible and it certainly would have been a rule of in violation to say the supreme court cases are out there but the federal circuits intervene in case this wouldn't have gotten far and it would have been as a fair judgment lincoln says it was a tactical decision not to raise one on one that's suggested change marcus or some holding that the claim is invalid yada not only vast but mr brown lincoln's counsel told the district judge told the world that this case would never need any discovery because it's a purely legal issue we believe  nine fifty six to forty nine fifty seven quote i ask that you reject any request for expert discovery the experts will never see the light of day in court because if you choose to address bilski it will be done as a matter of law prior to trial that was the argument made to judgment below you are there's one other thing i just need to raise with the sherman case just because of the intervening we could not have written some of the sherman case when this corporate entity on bach because the sherman corporate bilski there's no diligence issue raised that that day no diligences to the law was different under sherman this was good cause and the eighth circuit standard for abuse of discretion by the way is clear ever judgment and defense at least at the point in time in which this court entered its on box notice saying that state street bank would be reviewed question number five of the bill skeet order was should state street be overruled at that point in time trends america should have concluded that its defense that it says was a variable that point in time might be even better it chose not to  likely result in many claim that would have been likely valid who are now likely in doubt that their book i believe that with that weeping of the change would i then reverse would that mean that there was an abuse of discretion here because that curtis publishing case was a case that supreme court case that transparent lies point on that point you shouldn't predict or clairvoyance there however the supreme court looked carefully at the set of facts before it including the fact that there was a certain titian granted in the new york times case and sprint were said there was nothing in their brain and another question is they were crafted there that would have suggested to the lawyers in that case that their constitutional defense might stipulated stipulated fact that plate thirty five is directed to a computerized method for a mystery variable and to replay it computer is part and parcel of this claim through every step of the just record in constru it's described in you know a theory are going to be performed by a computer and it has a program but in the insurance industry in which you're processing hundreds of thousands of insurance policies you can look at that and say the transcribers counsel say today that they're not in any way challenging the court's jury instruction they didn't break what is the exact evidence exactly the evidence in the record that printer america has a computerized a step that's performed using a computer using the distribution of services and a check driver system is part of the computer systems used by trains mare and he qualified it he said well it could be in one instance and usually is in another perform it through a computerized method there's nothing in any of the writers that say they have to do it through a computerized but we know what they are industry writers with bin page correct and vantage does not allow one theater count one the amount left home and i show it to my wife and i say gee you know this is a very neat idea maybe we should make a pie sometimes he says well i'm a computer geek i'll put the program in my computer as i made the pile she put the computer program in the computer they may be more than a computer but i don't seem to point to any evidence in the record where trends in america room obligated self in my in my apple pie hypothetical to switch on the computer obligation to perform using the method itself transparent stipulated that the vantage system is specifically tailored with custom programming to administer the writers they spent thousands of hours looking at the contract terms themselves and then converting that into the vantage system so that they teach would then actually perform or the stand mike on might really nutty simple hypothetical naturist making certain that my apple pie formula is going to walk into a computer but interactive brinkman requires me to use good or to have the gun legal gun against my head a requirement and have the time that the jury evaluated this issue at the time of i give you three extra minutes that's terrific just a few things first with respect to judge moore's question about the jury instruction let me just read this comes out of markman notwithstanding the jury's verdict on review of the motion for j mall the corporate change the power in duty to say what the correct law is and then to examine the factual basis submitted to the jury and determine what the findings there on a supported by substantial if that was markman at federal circuit can we review a non challenge tyrian through action well it goes to the weight of the evidence here when the difference between whether or not there is evidence to support a jury instruction and whether the jury instructions correctly that they'll decide to wait until twenty twenty one to use computers they're going to go twelve years without using any computers that's the argument that's been made below riders using computers infringement not computerized eleven forty six that he's performed and if you look at page eight of that it's appendix twenty nine fourteen that this is a functional specification and what it says is that the system will point because this no longer automatic system right the claim requires may be in payment with a computerized not making payment and that's automatic that's electronic funds