court's permission i'd like to begin with obviousness because i think the differences between the parties there are very discrete there they're pretty well identified in the briefs and i think can be reviewed pretty quickly with respect to claim nineteen of the day patent loosen first information information that is provided by screen tools either lists of entries or an onscreen keyboard or a numerical keypad this is the article says that the data selected by the user is entered into the system the only reasonable reading of that is that the data is entered into these sites which are you know information fields that's the term used in the day patmos information fields data mation just uses different words some of the other issues really turn on a fundamentally claim construction issues or or what we think are loose and attempts to change the claim construction for example lucent claims that the data mission system does not include graphical tools but that's because lucent changes the claim construction to require something called graphics mode which is found nowhere in the patent no where in the claim construction if you if you applied a claim construction which is it's a graphics a graphical keyboard or number pad that the user can use to compose information by pointing to the displayed piece it's clear the data mission has that you can see that in the picture from the article it's reproduced in the appendix and also there's a smaller version of it in our brief the another instance where this claim construction revision comes into play is with the kind of permanent display requirement if there again the picture from the data mission article shows the normal meaning of concordant display which is at the same time you have to one side with the various sas the other side with the keyboard the onscreen keyboard displayed listen argues that the current display in that sense is enough that you have to have overlay windows but the claim construction was quite clear that it's it comes from display means displayed at the same time as by an overlay window the district judge made very clear that that was an example that side by side just like qualifies the patent makes clear that the overlaid windows were shown illustrative lee as an example of concord display that's in column three of the patent i believe and that leaves only the question whether the indicating scap which we we can see it is not expressed we disclosed in data mation would have been obvious to want to ordinary skill loosens argument  amounts of the proposition that highlighting or use of a blinking cursor or something like that to provide the user with feedback indicating where on the screen he was working would not have been obvious mr trollop assume if we don't damages were what in the middle of the ranges suggested by both sides at birth i'm happy to talk about damages your honor the most fundamental problem with the damages award  before you even get to the whole question of was entire market value apply doesn't apply here is that the damages awarded bears no relationship to any actual showing up infringement section two eighty four requires a damages to compensate for the infringement and they were here doesn't do that diana court held that where indirect infringement is an issue and if liability and damages have to be tied to the plaintiff's proof concerning the underlying direct infringement and we only have indirect infringement claims here these are method claims and there's no allegation that microsoft practiced the method so much the plaintiff identifies individual instances of direct infringement the liability for that and the damages are limited to those  individual instances where a plaintiff identifies an entire category of infringers use died of course term then the damages can apply to that entire category but in both instances you have to show direct infringement you have to show either that  accused product necessarily practiced the method and if it didn't then you have to show that somebody actually used it that way so what do you know you were doing so servants of people's use home usage after all or those of their instruction manuals suggesting usage well actually if you look at the at the record sites that loose and provided you're not going to see the kind of instructions that would teach the use of the composition tool which is which was the heart of their another and of course your honor you're only in that world and that's the world we're in in this case if the use of the product doesn't necessarily in french if the product has the only one use if it can only be used in french then you don't necessarily have a problem at least not to the same degree but here where it's undisputed that these products have hundreds of not infringing uses you have to have certain proof that somebody actually practiced the math well account that doesn't have the nooses that the date picker tool does not have day or use the tool off or you can i prefer you can so the former would be a non infringing use that's correct you can type in the date you could type in june second two thousand and nine you could type in christmas day you could type in that your honor what i'm saying is that there's there are many very may well be instructions on how to use the date picker to all but that does not lead to the conclusion that somebody did it you have to you have to conclude that somebody actually did it and instruction and it's like i think we use the example in our brief if you have a map with multiple trails and one of them goes through somebodies property and would cause you to trespass if you used it you have to prove that the person actually used that trait of the fact that the instruction to use it was there doesn't prove that it happened and there's no proof here that it happened and that's the fundamental problem the when you when you get past that you're honored and then to turn to finally answer your question judge larry the they don't read numerically maybe i did and i haven't done the math but it certainly is in the range between microsoft's figure of six point five million and loosens figure of think somewhere in the neighborhood of seven hundred million but the fact that a number is lower than the number the plaintiff throws out there doesn't mean it's supported by the record here the only conceivable basis for this number is th is the value of the microsoft products the outlook sales money sales windows mobile sales and even if this is some sort of split the difference kind of calculation by the jury is still a bet that means they use the entire market value because that was the one end of the range that if they were splitting the range that's what they were doing so either way you've got the entire market value rule implicated here the only other basis of the time a it the other way and get the same number but i think the case not is very clear that there is a distinction between the two rather certainly related and again it's a matter of arithmetic you can get to the same place doc trying to only that's not the right approach you  look at the total product revenues as the base if you satisfy the requirements of the entire market value role which is the accused feature or component or whatever it is somehow drag demand for the product a mess  a was the basis for demand some cases suggest a substantial factor but in either event it clearly had to have a substantial influence on demand what do you think is really required that it be the primary cause of the d than a trivial cause of the debian or one of six major causes of the demand who were do we end up here well your honor let me answer in two parts first of all in this case i don't think you need to confront that issue because there is no evidence that it was one of question of counting up how many features there are and taking that fraction i think you have to look at the particular feature issue and say did this in some sense create the value of the product wasn't there some testimony  at what happened here is there was testimony that firms are important to outlook tools are kind of nifty and out of luck the convenient user interface is important all of the since some of it may be true but they're not the invention that's the problem invention is limited to certain specified tools for filling out forms that's exactly right to do with e mail or other uses about exactly your honor and that's an important point because lou since expert conceded at trial that you can see for example you can send and receive an e mail and you're not infringing this patent big and there was either uncontested testimony that the most important use to the thirty drives demand for outlook is e mail that's what people primarily use it for so you can't just you know take this take some feature and decide that it drives demand and when you when you look at the feature you have to you have to focus on the patented feature and that raises another point your honor and that is that on appeal lucent has fairly dramatically expanded its infringement theory at trial the theory was very narrowly limited and i'm going to focus on outlook because that's eighty five percent or so of since damages claim but the testimony of the evidence was focused on the appointment form and using the date picker to fill in the form their expert testified very clearly michele noted if you use some other method to fill in that date you don't in french that's not the patented method and now on appeal they're taking the position that well as long as there's a composition tool somewhere in there any use of any pop up to with any field will infringe this patent swarmer on something else well interestingly the i don't know there's a lot of talk about form filling a claim nineteen doesn't actually say anything about that maybe the function is where the products met again to start with the sales price of the product and then shift the burden to the starts going down down down whereas in the absence of the entire market value rule perhaps the burden is entirely on the patentee to start with zero and go up from zero to reach some sensible number is it is that your concept of what the purpose and function of the entire market value rule is not exactly what i would say  the fundamental purpose of the entire market value rule is to implement the statute which is to award damages to compensate for the infringement of europe now when you get to the question of apportionment it may be the case that again assuming the threshold conditions and all that a portion becomes an issue but i guess what i would take issue with you chief judge michele is is on whom the burden rests the supreme court of the barracks in case back in the eight hundred eighty s which is one of the origins of the entire market value market value rule a shortcut that allows the patentee vote from zero to one hundred percent of the sales price and thereby put the burden on the infringer to reduce the you say that that a substantial amount of the sales are attributable to other products i'm sorry other features or other patents then then you're not in the entire market value arena at all because i think how that's the class that's not so clear to build from the ground up no i don't think it's an exception i think the patentee still has the burden to build from the ground up if the patentee and let me take a step back there's no question that that if infringement is proven in the using title to damages the penalty is entitle to the minimum reasonable royalty rate of some other measure based on the value of what he patented now if he's trying to get damages for something up something much larger at that particular in this case much much larger than patted it is it is the panties burden and it's entirely appropriate that it be the patent use burden to prove every step necessary to get that much larger award if that's true maybe actually true then what then why is that is there an entire case where there aren't that other unpatented features or components in the product or the product or features patented by somebody else but they aren't significant and it is the it's that the patented future that really is the reason people buy the so then the entire market value rule is for the well i would say is an exceedingly rare case where the one chip in the thousand chip computer is the whole reason people buy that computer versus all the alternatives the most a freaky case going to happen once a decade me well i don't i don't know if it'll be a freaky case it will i don't think it's going to be the norm when you have multi featured multi component products i think it probably will be fairly rare that you can point to one of those features as a so then excluding that case whether it's a tenth of a percent or one percent or whatever we don't know but but that thin slice covered by the entire market value rule every other case requiring build up by the patent on every other case requires some proof of what this patented feature is worth comparable license agreements to be accepted if it's in some other context all separately are reading have you a cost savings that it makes possible there are upright ways you could do it but basically the patentee has to prove what value is added to the total product by the claimed invention rule properly applies then you are working with the entire market value figure product sale price at least as a starting point but in the stipulation in your question you have failed to satisfy the requirements the entire market value rule i think at that point the the value or the price of the total product is off the table and there have to be other ways about like why couldn't you use the total product price if the patent he retains the burden to establish what portion of that total price he's entitled to because he can show that it corresponds to the value added by his invention rather call the other features that maybe i maybe i was just having a semantic disagreement with you that i think i suppose you can imagine a technique where the patentee is able to estimate or come up with some calculation of the value of his feature based on the value of the overall thing that may well be possible and what about the admitted simple arithmetic that even if you have a very high base if you have a very low percentage you could get the same figure as with a smaller base and a higher percentage and therefore to the extent we're trying to prevent  an outsize war even if you start with the total product price of a one component infringement as long as the multiplier the percentage is low enough you would get a rational work right you would get if you could arrive at the same arithmetic result but i think what you're proposing you're out of frozen entire market value rule out the window because you can always say well you know we can we can have court decisions as i said going back to the nineteenth century has made it very clear that the entire market value rule is in fact in rule and that's what we're dealing with here and so fiddling with the numbers so that you get out arrive at what you think is the same result it on then to formulate the entire market that you will whereas who are scale very well i think i think it's probably true that at the time up right height that was the more common  scenario in which you'd see entire market value questions i'm not sure that's true anymore your honor i think cases like this one assume that product no add ons but with a multitude of features it's the supposed accused product couldn't write be interpreted as better characterized not as an entire market value rule case but as a convoy goods case where you had two or more separate products one of which infringes and then the additional products don't infringe but because they're all sold together you allow the patent easy to get the total economic value of the multi product act i think that's i think  that's a fair reading now of course you do have as judge laurie mentioned the functional unit notion which that would be a predicate of combining several products right but in our case we only have this case we only have one there was no question about that so it is hard to draw the analogy i think i'm right and it was a question of kind of one serials like you had a p c you had an entire product and the entire product was patented on like here and then you also have a question of things that that intervening years we've had very few cases that really plumb the expanse of these rules entire market value rule of course in moment of how you do the calculation who has what burden it's kind of amazing that since the cases are heavily not screw solely about damage the family about damage is also in johnson's of course but heavily about the images that at this late date all these years later twenty seventh or twenty eighth year the existence of this court there still seems to be massive unclarity about how reasonable really damages are we calculate well your honor i think there is i'm not sure that there's a tremendous lack of clarity i do think that in cases like this one the application of the entire market value rule is fairly clear and certainly there are nuances and you can imagine situations in which questions might arise and those questions obviously have to await the proper case this case i would submit is a is a simple case in that regard and also your honor and and not to beat a dead horse but i do think you don't even get to this because of the lack of proof of direct infringement here you clearly have to have direct infringement yet again it is your view that in order to have the damages that you would have to quantify how many different people use the method how many times were ever those computer users might be all over the world i think you would have to and i'll use it that's your view isn't it that you would have to quantify the actual uses in order to calibrate the damages i think you would have to quantify and i don't mean to the to the last person this is silly but you would have to quantify the number of product units that were used to in fr now whether so whether the whether customer a who bought it used used the patented method once or ten times i don't think that matters but the fact that the product was so and was used to unfriend shelf one hundred ten million people what outlook  we would there one hundred ten people have got that on their computer one hundred ten million people have that on their computer so the pad he would have to show how many of that hundred ten million once or more used the patent teacher yes that's correct and absent that there would just be zero m in your view that's correct your honor but it doesn't that create an extremely difficult burden as a practical matter for the patent the maybe  almost impossible but i don't think i don't think it does again i think it's important to recognize that your early in this early to the extent that the product does not have substantial not infringing uses which which these products obviously do  so you take away that whole slew of cases as not contributing to the problem at least not in the same way but again as has to return to the courts references in akko i think you can you serve a testimony you can get testimony from customers and then better have to march one hundred ten million people through a courtroom juries make the you know these kinds of decisions all the time clearly circumstantial evidence is adequate and if you if you have statistically valid surveys i recall well you are expert as as any damages expert doesn't act in a case assumes infringement assumes that the jury has found infringement and offers his damages testimony so the you know the fact that he  and we don't think the patent is valid so i don't i wouldn't attach any significance to the fact that we presented the damages case now so is it your view that liability and quantifying damages are an absolute locks that that they have to  relationship between the scope of the proven direct infringement and the scope of the claim damages but we've given you lots of extra do we have indeed let's give equal time to the other side and hear from them and you will restore your reserve emeritus for lucent technologies today as we also can hear computerized forms and pop up menus and and calendar tools are ubiquitous and that's one of the things that makes this case very interesting this is the age old case of an obvious analysis where we have to put ourselves back in time twenty five years before microsoft windows before apple computer was a home name before everyone had their i pods now everybody is using up tools when this patent was invented over twenty five years different there's it there's a fundamental difference between those two things the patent and what was in the the data may shark the pan and was addressing the issue of how do you fill out of on a computer screen if someone go from field to field in the form and get the information in an efficient way with papa tools relevant to each field indicating which field you're working in and when you're done you're going to have a nice well filled out form you're going to limit the mistakes that is not what's being described in the in the data publication the data mation publication was after something else what they were doing meaning what i'm about not relevant aren't that it's not a not just art that it has no business in this case at all that's not what i was going i'm going to tell you what it was after and then tell you why that means the limitations are missing because it it brings to life the limitations that are missing and that's where i'm going so let they were trying to do in the system described in the data mission article was traders are making trades in the foreign exchange and they need to get the prices in as quickly as possible they're doing a thousand two thousand three thousand trades a day this is all described in the publication and so what they needed was a system that could quickly get the data in and have it get into the system and the process they want trying to make complete forms and fill out forms so when you actually read the article to see what's disclosed what they talk about is pushing a sell button and a pop up they put in the price or what happens that goes into the system and then they move on to the next one they are common day example today which i think will bring it to life for you as an a t m machine if you go to an a t m machine today and you want to make a deposit you push a deposit number pad you put in the amount you want to deposit and that gets submitted into the system you are not when you're doing that filling out a deposit form you're not putting in your name your bank account the bank account number the address the amount of the deposit you're not filling in the fields of you are merely pushing a deposit by entering the amount that goes into the system that gets that is analogous to what was going on in the data mation publication why is this relevant if you look at the claim limitations claim limitations talk about the first claim limitation that's missing from the prior are displaying form there is not a plurality of fields displayed on the display you can read that article cover to cover it's not in there but the limitation and the fact that the article talks of a single number going into hey one field form i can use the terminology would seem to be very easy to extrapolate that to a modem field orman's they will use the same technique even though now you're going to put in eight pieces of data in eight different places instead of just one piece in one pile when you're put this goes back to the first comment i made your honor which is put yourself back twenty five years ago or twenty five years ago i was still in college doing in the prior art reference was not filling in a field in the form they were typing in the cell information into the true will that popped up it wasn't even a field on a form that it once was they push  that tool and they would put the information in the tool and then it would be entered into the system there is no field in the context that is being used in the pattern the pattern you're talking about a display on the screen of fields that constitute a form and that wasn't the intent of the prior publication more importantly going on to the next limitation the third limitation it's indicating a particular one of said information fields into which the information is going to be inserted again entirely lacking everybody admits it's lacking microsoft's expert admits it's lacking and it's lacking for the reason that that publication was going after something else in the past you're filling out a form on a screen that has a lot of fields and it's important to indicate which one you're working in so you know and then you can move to the next one  fields indicating or uncertainty so when you think crap about what was that article after it's just one of the information as quickly as possible to get into the system so they could process their one thousand two thousand three thousand trades th quickly digesting information that's why they say it goes into the system as opposed to onto a display of a form they don't want to be bothered with that filling out an accurate complete point was a different approach that's why the claim limitations are missing or of indicating which field you're working of inserting information into the field onto the display of the screen what you're talking about here frankly at the time back in one thousand nine hundred eighty six had never been done before in this way so when you look at what was going on well these limitations are missing because of where they're coming from but that's not all it's missing there's also the composition to his machine the claim this is in the second half of the third element a tool adapted to allow us at user to compose said information the district court interpret that the graphical keyboard or graphical number keep a rise that relevant at the time what the date patent describes is a graphics a graphical way to treat these images on the screen when they go through the detailed description that describing what's called the prior art publication was something that was done in text mode not graphics mode it's an entirely different approach to the problem which is probably another reason why they didn't have all the fields on the on the screen displayed as to the  there was no proof of actual infringement and the loaded question of the lack of evidence concerning lee cup a base for determining the world you're ready for me to move on from concurrently just fine with that relevant to what was going on so to get your honour's point out about direct infringement i think there's a couple ways to look at it first of all if you look at the inducement line of cases which i'm sure your honour's are all very well for really with their teeth essentially two sets of cases there are the cases where the normal use and operation of the products are not infringing and the patent owner is trying to argue that a particular normal operation was not infringing or there were no instructions or teaching or any of that to unfriend here this is more along the line of cases that's headed up by the most recently rico that talks about when you have teaching and instruction and the products are designed to infringe but then the way that you prove direct infringement is by circumstantial evidence you prove the teachings and marketing the advertising you prove that the products were designed to infringe what would prove products that  there's no doubt that people are using calendar but let's step back for a minute what is it that has to be done in order to be an infringement first of all i think is a fundamental question here because the way the claim reads whether they're using the calen tool or not doesn't make infringer what claim one thousand says it is you have to use a tool that tool needs to be selected from a group that includes a composition tool a menu of alternatives that cetera claim requires the use of a true or not the use of the counter puppet tool without include email that would include any for the yes is the answer the question you have with the pattern is getting that as  explaining there is a forum on the computer with fill fields to be filled out the claim requires that you use tools to fill out the fields the claim requires that them straws be selected from a group of tools and those group of tools must include a menu of alternatives and a composition to it they could include many other things which tool you choose to use is not relevant for the purposes of infringement only that you have a system with a collection of tools includes those who type so for microsoft to come up and say we don't know how many people are using the calendar pop that's not a relevant inquiry here for the directory friendship question the direct infringer question is are people using the tools that microsoft put in the software and are those tools being selected from a group that includes composition tools and mentors so what is the evidence and you're saying if someone brought the computer with outlook in their friendship if you can't leap to testimony from our expert in the record you can't use money microsoft mobile and outlook without using the tools it's inevitable you will use it was in money our expert specifically testified you have to use programs are all forms that there's only three programs that work use of your friendship money is putting information about your finances into the system you're putting it in through forms that's the only way you can do it microsoft mobile it's all forms that's the way the whole system works and an outlook whe a user can i put the information in using the keyboard in some cases you can but what the testimony was is that for money some of the information has to go into the tools our experts testified to for microsoft mobile you have to use the tools it's a handheld you don't have a keyboard you could conceivably plug a handheld into a main computer that has a keyboard and do that but that's obviously the intended normal use and with microsoft outlook there on advertising says every item in outlook is a form and you have to use the tools to fill out the form you could go out of your way to not use the tools and some ten million use the tools that would be in print so i think they are and all the others did i think there's a fundamental misunderstanding going on with the approach that microsoft taking to this case and to answer that question you framed it perfectly which is there is a difference in the law between lost profits and reasonable royalty lost profits is more interested in the question that reasonable exactly so in a reasonable royalty context that question in a case like this is not relevant because what georgia pacific tells us and what this court's precedent has followed going beyond short circuit and even for is in the royalty context we're going to have a hypothetical negotiation and we're going to treat that as what would have happened in the real world that's what the equation is and this court has two lines of cases that crystallized this point there's a line of making equipment is going to be used so in the real world reasonable royalty negotiation when a licensing license or sitting down they're not going to set up a framework that's going to pay for infringements based on actual use we don't care whether it was a want or a million times a hundred million times no not at all your honor it's not relevant for the point of view of what is the base how many of the actual infringers there work it's relevant on the the table from each other and they say to each other ok it i've got a pattern this is what it covers you're going to sell this many products let's talk about how we're going to structure as we want to make it on a reportable things so that we don't have to go around looking for how many people or in any percentage doesn't seem to matter the question is do you adequately account for on one side of the equation or the other what it needs to be accounted for in this sense of what is the bargain positions of the two sides in the hypothetical negotiation it exactly yes it does it matters at the time of the hypothetical negotiation it doesn't matter to the debt and that's the point i'm trying to make microsoft's argument up here is lucent didn't prove how percentage let's say it's eighty percent then you say well that eight percent adequately took into account that lots of people who have the product won't use it infringing way and other people who have the product will use it in fri but if you have no idea how many people in infringed or how often how do you know the eight percent is right how do you know it shouldn't be fifteen percent or one percent to answer your question i think we have to focus on what is the royalty analysis because it's not relevant to say to day there are this many people who are infringing their this many people not the georgia pacific and i put that on a negotiator supposed to happen at the time in this court analyzed based on what the expected sales were going to be in both cases turned out to be totally wrong it was over inflating the amount of sales the lump sum was paid did you know the case then had is confronted with the with the issue of at the time of the negotiation it was a negotiation a rate set and a royalty paid today we know that that was a overestimation of how many sales are going to actually be traded on these missiles court says that's not how it works that was a lump sum royalty it was reasonable at the time you live with the constable even though it was reasonable at the time i put in expert testimony from roger smith who has two decades in this field he worked for i b m he talked about how it's  interface expert in the world but the law can't be that if he said that the jury has to accept that and post verdict motions the trial judge has to step to the court of appeals has to accept that the supreme court has accepted that can't be the law there's got to be some outliers at the margins where you just say he said it but it had no foundation in reality that was put in the record therefore he said it but it has to be rejected i couldn't agree with you more it i'd be here with an issue he didn't just say it he said it based on what happened at the trial so he talked i mean is up his testimony were not for hours and hours he talked about the advertisements he talked about the marketing he talked about how microsoft was selling these products he talked about what every single microsoft marketing witness said we put up blow ups of the marketing when it's just testimony right these products are important why the tools are important carr that if you look at the amount a jury actually awarded and you look at the sales and the sale average sales price that you can calculate that the award represented approximately eight percent of the average total sales pros so just accept hypothetically that that's true  in the context of this case or this kind of case how would review in court know whether that eight percent is a realistic figure that is proportional and reflects what business people would actually think if they were doing a negotiation i think that the job of this court is told look at whether in the trial record there was substantial evidence to support that eight percent in this record we specifically with respect to the eight percent there was a lot of data but there were specifically respect to that number a few i b m agreements that licensed software for eight percent to dell and so in the computer industry you know here's two parties relevant to this case dell was a defendant at the time and there are specific questions agreements right on point that at that time eight percent was the right number that's just one data point there was a lot about lately eight percent has got to be in a context if you're one company into of lose another company new book of thousands of patents in your cost licensing thousands of patents and in that context eighty percent is what you both agree on immediately without even a long ago shushan fine but then in the case involving comparable license agreements here don't look terribly comparable at least not to mine our first of all our job at the reviewing court is to look at what happened below what happened below was our expert went through the licenses explained what was different and what was the same explain to the jury how the jury might adjust went through the marketing the advertising went through all the other licenses and did a comprehensive damages presentation microsoft then put their expert on and did exactly the same thing from their approach and it's a quintessential fact issue for the jury about which way are they gonna go and who are they going to believe and what are they going to discount and how are they going to come on for you which i think may may give you comfort in this particular case there are many ways to get to that number microsoft proposed one in its brief there were at least two other real easy ways for them to get to affinia this is not the case for the court to write an entire market about it why is that it's not an entire market value case if you look at what actually happened in the case microsoft speculates that the jury didn't rate times of base and use the entire market  if you look at what they actually wrote on the verdict form they awarded a lump sum and they said what is the royalty rate you apply and they said we're not applying one not a clickable they what happened at the trial was we presented the eight percent on the if i'm a juror and i don't want to get reversed on the foreman of the jury i just always put it in the column under let sun and under base i put a blank line under a strike out and i've got an immune verb it's not it's not our job to speculate on what the jury did we're stuck with what they did and so what happened was we presented a percent on the base microsoft's presentation at the trial level was you should award a lump sum and they offered six point five percent and they gave all the verdict is that supportable in sustainable on the law is there evidence in the record substantial evidence that that is a reasonable verdict why is it reasonable to me to accept read your said this is the short cut previews and if we read every word of roger so if we look at the trial record to determine whether the lumps on whether there's substantial evidence in the first that if you agree with me that the jury awarded a lump sum what they said they did we never get to the entire market value rule you don't need to write an opinion on it this isn't the case for it and then once we get to that point then we have to decide is there evidence substantial evidence in the record that can support a lump sum of that magnitude there's plenty of evidence in the record that can support a lump sum of that magnitude we put a many licenses in the record might microsoft in price all in the hundreds of millions of dollars lump sums the jury could have extrapolated from those licenses equally we put licenses in the record that were a dollar value crude unit and here we had one hundred  million units there was a dollar value license lucent vox com for two dollars a unit there's a dollar value license microsoft and paid alike for four dollars a unit if you do either one of those you get to three hundred fifty six million quite readily so when you look at the evidence that's in the record forget about roger smith look at the licenses that it from the licenses alone the jury could have extrapolated a lump sum entirely supportive of their verdict we never get to the entire market value we don't need to spend a lot of time on so that in my view is the proper analysis here the jury told us it was a lump sum they said they didn't apply a rate times of base and is that lump sum supportable yes it is we say for another day the entire market value growth let me just mention appeal there were apparatus claims in this case as well the court dismissed them on summary judgment for the so that reason that the expert didn't not rely on the source code in his expert opinion on the apparatus claims and microsoft says that he did just a functional analysis in the court agreed and dismissed a summary judgment when you look at what the expert actually did and what the expert actually testif it was clearly a structural analysis he tested the equipment he has a history in this particular field he talked about the microprocessor and how it was programmed and he ran through all the programs himself doing tests and  the functions in this case were very straightforward business neil if you win on the main appeal yes so the functions here are very very simplistic the front you know it's a microprocess r program with an algorithm displays a form of micro processor program with an algorithm that indicates a microprocessor with an hour and then it inserts a permission etc when you look at the testimony from the expert and he testified in detail about how from his test and you can observe these algorithms and that was sufficient to meet the apparatus claims there so they were fact issues that precluded summary judgment our experts did show the pinion on the operation of the products the simple nature of the corresponding structure and the feasibility of determining identity or equi of the structure or of these precluded summary judgment so if you were to reverse any part of the case we would ask you to also reverse on the opera thank you mr trial a three minute i need to return to a subject that i started to talk about and that is lisa's expansion of the infringement theory on appeal it is simply not true that you don't have to use a composition tool to infringe looking out using outlook and here is why  have you have to use a true will selected from a group that includes at least a tool that includes a menu of alternatives and at least the tool adapted to allow said user to compose said information the predicate in the claim for s information is information of the kind identified for said one field so that the group of tools from which the two you're using is selected has to include this kind of composition tool that is a composition tool that can supply information for that field loosens expert testified that the outlet has only one composition tool that's the date picker so the only field that can be found using that composition tool is the date field that's why their entire case at trial focused on that  matter that the date picker tool is the only tool that can be used for that date field there are two ways to fill it in by typing on a physical keyboard which everybody agrees does not infringe well by using that they pick her so if you don't use that date picker you do not infringe if the date picker is not included in outlook again because it's the only composition to all outlook cannot possibly in french so everything turns on the day paper and this notion that any use of pop up tools anywhere on any form infringes is just nonsense it is not supported by the claim language and it's why there are expert testified repeatedly and we quote this it i think pages twenty two to twenty four of our brief testified repeatedly that you have to use the date picker the other another kind of like to make along the same lines is  t to testimony referring to general testimony saying we're sure that some customers use the calendaring feature that's not the big picture the calendaring feature is the appointment feature and outlook that's what's being referred to we don't dispute that people use the appointment feature of course they do or the question is do they use the date picker and if that was there any evidence of the use of the date pear tree when using that feature there was not no no evidence of any infringing use and certainly no evidence of the extent of infringing uses just turning briefly to the validity questions it is not true that only one that there was only one item being filled or being addressed in the data mation system the other process the read half of the screen lists key information about the current transaction the bank seller bank currency exchange rate etc when the seller when the trader touches the screen in one of these areas a list of potentially valid entries or a pop up to a comes in to supply the information needed on the right that is the same thing described in the day pat a finally on the cross appeal very briefly lou since expert did not exist identified the structure in microsoft's products lucian's expert in fact explained how he reached his infringement conclusion he said you're generating an equivalent algorithm because otherwise you would not get vocal and behavior that's at eight o six all four of the appendix that's a purely functional analysis and the notion that the district court relied on nuisance value to analyze  code is wrong the district judge mentioned early in his opinion exactly what's the source code issue you mention it because we had argued he got to even look at the source code and everybody knows you can identify the algorithm that way now that i don't there may be other ways to do it  but we were just pointing out that the most obvious way he deliberately chose not to follow he did no structural analysis whatsoever and this court's cases are clear that that's required so we were requesting that new solution be reversed and that the decision on the cross appeal be a microprocessor programmed with several i would have to look at the algorithms are it's an algorithm that displays a form it's an algorithm that indicates the currently active information field and displays a tool it's an algorithm that inserts information derived from the tool into the information field it's an algorithm that indicates the currently active field and displays the tool these are all things that can be observed from using the system if you sit down load the software use the computer and you can tell if the microprocessor is programmed we're going to algorithm that displays a form because you are going to see the form on the screen and you can do things to manipulated the next function as an algorithm that indicates the currently active field and displays a tool if you use the system and test it you can see if it's doing that and you can conclude quite reasonably that the microbes processors are programmed with an algorithm that can do that the same for the other two al gore as i don't need to belabor the point and the expert much very thoroughly or you very evil well prepared council of all of the council who appear in front of us were as articulate and well informed as the two of you or in all those other cases would be much easier so thank you for your