next case is trading technologies versus sun god data systems two thousand fifteen seventeen sixty seven and sixty eight mr morsy thank you if guarantee the construction is narrow because the it could be avoided literally by introducing into a moat some risk of automatic movement even if that risk is somewhat low now in these great appeal try to broaden the after structure that's what we argued he wanted the construction to include modes in which automatic movement was possible as long as the prices ever stayed still with hindsight basically when the market couldn't and could be subject to automatic movement the user was always at risk of potentially missing their price there was no guarantee and that was the key for why it wasn't infringing on the other hand there was another product called futurist view that had automatic this is that there's a separate motor operational state if that could be perceived by the user and he explained that their product always provides a motive to be perceived by the user in fact you know we're not we're release notes functionality the very purpose of which is to give the trader the guarantee that so this is not we're not artificially drawing lines here around the product it's exactly why they designed a lot of this way now to of course the it down as well as five seconds but the evidence shows most users make it the maximum possible that's available to them and in some versions by the way in the menu setting you could go as long as into the years in the menu setting not just file now the lower court thought that what happened a misapplied would happen in the east because they thought the reasons for not infringement of their court the reasons for not infringe meant there apply here in the court focused on the fact period of time it was acknowledged by the court should have precluded summary judgment of not infringement but the court went on to require more the court requires that an accused product quote operates soley in an infringing  not in the law now another thing that reveals the court's misunderstanding is if several put places in the opinion the lower court said it will be taken to its logical extreme she  just position does not result in the the product infringing because that product has no modal ever where it locks the prices and there's no possibility of automatic movement so that kind of reveals product you are always at risk the current products have this time for is where the slots and there's no rest so what are they argue now they argue that the issue of time based responding was already decided in the previous case they're pretty broad seems to me that language such as in the first place the recent or in command must indeed occur as a result of a manual entry taking that language by its turns that would for clues your argument but not know the you're going back to their product has automatic reset or it may not occur very often and it made her very predictably but if we interpret this sentence as it seems to me it's and the one other thing i want to point out is that  is if you provide a mode in which is a guarantee that you won't miss your price pretty narrow pelleas now want to say well you can if you do that even if you design the software rather for fifteen minutes or sixty years to give you that guarantee and lock the have a setting where you can turn the automatic sri centering off and then it was a static mode where you can turn it on here it's always on automatic recent rings always on but the other point that's really important is it's not like there was the   for judge moran so the claim construction that this court considered in two thousand and ten was clean construction the judge miranda arrived at it was not only in the speech face but our case as well and you can see that the very basically says now this came up in the initial opinion and in the reconsideration of intent the judge grants said no it's got to be never permanent permanent says situation where it's a static only never have automatic reset or any which is the very language that this court cited at page fifty eight or thirteen fifty three when it noted judge man's construction and said we agree with that constructions finding here that's the construction of  this court in two thousand and ten based on the judge's directive judgment ran in all these cases including this one and it's interesting because in the district court claim construction t based you know whether that argument was again to this court it wasn't made explicitly to this court there was some suggestion that that in teeth that  judge moran's construction to qualify as a static condition t t said the price levels could never change positions automatically but this sets me more generally the specific argument wasn't a course teacher could have raised it i mean that was up to them they were the same regardless of what products are accused and given given judge moran's broad language with which this court adopted never have any automatic precentor and even talk about never be a risk for automatic or for automatic reset or an and this court didn't do that this court did say never be at risk it didn't say they always have to have a situation where there is no risk it said never permanence now let me give you an example that shows the problem i think because it's changing so quickly because they're dealing they will answer i'm sure with a real work woke up next to have a minimum of fifteen split second surely can appreciate when a you can do all sorts of one hundred seconds one hundred seconds is fifteen minutes but the settings adjustable is noted of course the focus is on the maximum setting but there's a minimum setting to which is one second so if we're talking about you know real world what you have here you could have a change every one second of the argument would be well between zero and zero point nine nine seconds it's static but of course true user that's changing a lot so we're talking about risk of someone getting the wrong order that's something that certainly could happen one second in fact there is testimony here by a customer that you had him missing the right price missing the order when you had you know when you had it according to a default in auto right when you're looking at the say i want to get the order that happens to be the time when the auto reset or it's happening and that was the error heard testimony be clear what is the shortest settable time in any of the products one second ones yes so that there is testimony about how you can get the wrong order and the reason is because the user said this is mr ever heard of a fourteen thousand and seventy nine to eighty three he said he h stop watches you know even if it let's take the sixty second to fall that's one of the faults there he doesn't have a stopwatch saying boy it's going to be sixty seconds and we're coming up to what i better not place an order of better be careful it just happens  that's something that you know there's actual testimony on that unlike some of hypotheticals that the other side's raising so what you have here is a situation where you could have the unexpected happening that you could have even if there is a time period that you sat you don't know exactly when that's coming this is important there are some later products ones that aren't issue in this appeal because they've been settled by the parties involving ten point its version ten don't have that new products issue in this appeal products issue this appeal there's no countdown clock so that ought to reset or it can happen when your request at that time when you're about to place the order you click to get the wrong price in fact that's what happened to mr  seconds which is how for other products ordinarily used then there are ways to change the settings to make it brought to make it more you can change the settings to make it depends on the product again it varies nine hundred seconds from one thousand nine hundred ninety nine seconds to the most work you know they had eight digits there for the number of nines you could put in it didn't work so it came down to the number of days as opposed to years but the thing is that you know so they said well you can change things around to make it really long isn't something that's relevant to the infringement here number two this is just speculation about what someone could do there's no evidence anyone actually went in four theoretical possibilities for an infringement aren't enough it's not enough while someone might be able to go in and change the settings and do it there's no evidence they present could about evidence you know this is in response to summary judgment motion they did but finally even if it were sixty eight years the court drew the line because how else do you draw the line you know like went through my ten milliseconds example how that's difficult even if it's one second it seems it's it's absurd to suggest that if you know that you could know what you know what's going on you know it's the static period for less than a second so the court looked at that and said you know what we draw the line is never never having automatic resign or that's the only place you can draw the line and why not only do you not get the debates about is it two seconds is it five seconds is it twelve days you know how do you figure that out but yet the prosecution history that this court referred to in the two thousand and ten opinion this is at page thirteen fifty four that opinion the court said that in the prosecution history there was a vague indefiniteness rejection the patentee responded the values quote do not change unless a recent or in command is received based on that the court said that the said the quote unquote the claim for bids all automatic resounding that's page thirteen fifty six and the relevant standard is quote not the frequency of automatic resettling same page so you already have the courts saying no automatic about well if someone might turn off the computer and try to reset it and except for a those are those are features of the software those are ideas hypotheticals about ways people might try to get around the automatic precentor in the software that doesn't make the software itself infringing and not to mention the fact there's no evidence to support the people have actually done that and similarly this notion in one of the products about how if you move the mouse pointer can cause the automatic reset or to reset even if it does cause that to reset it doesn't mean that your it doesn't turn it off so you can still get someone for them show infringement they don't show someone is moving if it's a sixty second delay which is what klausner uses this is a sample that someone is moving at not only that first sixty seconds but the next sixty seconds the one after that in the one after that to delay it all the time because unless they're doing that the notion that teachers artificially dividing up the products is not true it's belied by police on documents their user manuals and release notes which were written by their employees before the lawyers got involved look at the if you look at a ninety five or six the future path user manual it describes a time basically centering describes a fixed time period of twelve in these times periods fault that it will not take place this is in order to protect you the user when placing or modifying orders that the prices will there's no way a summary judgment to talk about summary judgment here in favor of the defendants finding no material of issue of fact taking all reasonable inferences in favor of t t in taking this factual infringement a question away from the jury is proper  allegedly documents alone let alone all the other evidence we've talked about now this idea that she didn't prove use and these are hypothetical scenarios and some of these longer time periods must be clear use was that there was no other motion so there was no opportunity for t t that we were invited to come in and try to prove issues of you that may be an issue for another day related to damages or something else i'm not the issue here also  mr levine's you write that in a quick trade the g l products there was a digit ninety nine million nine hundred ninety nine thousand seconds that could be sacked and he's right that there was a bug in the software and instead of making up the three nine nine nine nine nine because it won't happen it doesn't matter three years twenty four days five days doesn't matter he's right about that b dollar another court in illinois two thousand and two zero zero nine west law three zero five five three eight one were you look at the exact same issue and got it right there was a product that had most time period