morning your eyes may please the court because neither party challenges either the claim construction or the jury charge we have to the chest the jury verdict the substantial evidence against the verdict against the charge that was actually given using the ordinary meanie the infringement verdict should be reinstated because substantial evidence supports the verdict using the ordinary meaning of the charge actually given the charge was quote a new key value in the first and second sequence is used each time a pre determined number of clocks have been sent from the transmitter over the communication link that's at eight four six four five dr jager testified directly to that point at three three nine seven to nine eight the blocks i'm quoting the blocks now have been sent from the transmitter over the communication link so the pre determined number of blocks is satisfied the key value now in the first and second sequence is used when the pre determined number of blocks have been sent from the transmitter over the communication link we have a series of cases where we have said that while a trial court can't post trial at new limitations when its claim construction it certainly has the authority to clarify a claim construction how do you get around to focus on whether there is substantial evidence of whether there was generation at the transmitter or receiver the generation of keys verses each time a data block was received that one did use the word generation a few times but he but it came back around and made it clear that he was talking about the youths he i i disagree your honor he specifically says in his in the gym out of order at sixteen  three other places on page sixteen the court always compares to the generation that is directly contrary to the courts the district courts claim construction now that i think le him to overlook substantial evidence and the key point that he overlook likely think it's contrary to this construct because the courts claim construction a sequence in advance and then using the case at appropriate time for that had to do with whether or not they could be stored that didn't have to do with whether or not that at that at that that they had to be used at the time they were sent that's right so he said with the claims instruction was that was applied and should have been applied on the no vote by this court is that the new key value has to be you just each time a pre determined number of blocks have been set and dr gave birth testified exactly that that a new key value is used at the receiver each time a new block has been transmitted that new that new key value this is that three three nine seven and three three nine it he testified to that directly side the keys are used to encrypt prior to transmission then encrypted data is sent to the receiver and the received encrypted data is counted and the best keys are the abuse at the receiver expressly requires action at the transmitter through the use of said first and second said second sequences being produced it's you who wanted to change the perspective to receiver centric to just to then be able to point to your expert and say see he justified this there's a substantial evidence that i feel like this is a claim construction you want the world to be receiver centric that's not what the district court construed the claim asked ok so first the courts claim construction doesn't say  key value can not show up until the receiver side so first this is in paragraph one of the claim which is talking about what happens at the receiver and if you look at the prosecution history i can explain how this element got in to this claim but the way this sequences being produced each time a pre determined number of blocks are transmitted over said link it doesn't say at the transmitter or the receiver i know to the court that is in the block that talking about what happens at the receiver receiver now looking grammatically at it because we have to apply only the ordinary meaning of the actual charge to give it grammatically what that sentence means is a new key value is  shall at this point in the first stating that the district court rejected your receiver centric view of the claim construction for one easy i do regard to this view you do i do really because i think the opinion seems very clear that he it he made it clear that it was that transmission and that that's what he was looking at and in fact that's what the claim language says are transmitted over said link so while some portions of one  have to do with actions that occur at the receiver this i e when you're going to have a new one of said key values is after or at transmitted basically so i guess what i interpret as opinion i really see does not determine whether either in tradition is solely correct or whether the claim supports both of which that he specifically left it over this court should not be doing a claim construction i'm asking you believed was inconsistent the court at eighty three eighty seven specifically says this is an issue for the jury all right counsel the court understand that different experts may have different reading of the court's claim construction that doesn't mean i'm going to reopen claim construction you both have experts if your witnesses can explain why the other's explanation is faulty that's what this trial is about ok so the corps recognized that this was an issue and that it should go to the jury it was knew it that requested a supplemental construction we were fine with the construction they have objected to the construction saying you need a different construction the court rejected the supplemental construction that they moved a new trial for failure to give the supplemental truck instruction that's not on appeal anymore now they're changing their tune saying oh the claim construction always meant that ok the way this claim is structured is there's action at the transmitter and then action at the receiver and we have to focus on the actual claim language the actual charge and if there's any substantial if they're if they're drawing all inferences in favor  the substantial haven't supported the burdock should be reinstated ok the claim construction that was given to the jury was a new value is used that new value is in the first and second sequence dop it doesn't say at the transmitter it doesn't say that the receiver it just say says that the new value is in the first and second sequence dr gager testified that in r c four in the accused system the value used at the receiver is in the first and second sequence because it's symmetric because it has to be the same he values that's used to decrease the clock that was used to encrypt the clock so when we look at the actual ordinary language of the instruction that was actually given it is a block or eight new key value is used each time a pre determined number of blocks has been transmitted dr yeager test fine and showed that that's if in fact we were to believe that that the trial court's clarification of its claim construction i'm going to use that word for now but if we believe that the clear that claim construction that showed up at the jail is the correct why do you that specific list correct so if it requires that the next key value is not used at the transmitter to encrypt it block until after an encrypted block has you think it's wrong so but by point as if that had been the clear claim construction from the very beginning with vista been a circumstance where you would have had to stipulate to non infringement and send it up here to challenge construction and not the reason i'm not sure is there may be situations this was not in evidence at trial in discovery if we had known about this there may be situations where they where one block a cent of the time so it's probably a question that could be asked i generally don't ask questions i don't know the answer to of opposing experts at trial and under our view of the claim construction as it existed it was not and it was and it relevant question can i tell you why the claim construction would be wrong claim construction would be wrong because it's inconsistent with the claims and inconsistent with the specification in a way that would exclude the preferred body ok so look at what we're look at what we're doing so if you look at figure one figure one shows that there's a block on our the data source comes in and there's a block at the transmitter is what is used to advance the keys that happens prior to transmission there is no disclosure anywhere in the specification of any feedback coming back to the transmitter of the pseudo random generator in the transmitter of whether claim whether plots have been sent have been transmitted have been there is no feedback no teaching of that the only teaching at the transmitter site is that it banned signal from the block counter that happened prior to transmission and so inconsistent with the specification to read that limitation in the receiver section as applying to and i don't understand how this section relates to what occurs when a block of the transmitter is produced at a time dependent on a pre determined characteristic of the data being transmitted over the like ok so one c tells you that you have to produce the new key value to encrypt the next block of data each time this pre determined characteristic is met at the transmitter the specification describes that's based on the advance signal from the block counter prior to transmission there is no feedback there's nothing  not arguing claim construction it's very clear that they are trying to reinterpret the claims in a number of ways that they were not concerned what about the fact that you actually asked for a supplemental plan construction and then said you just knew she were entitled to a new trial because you didn't get that supplemental claim construction does not imply that the claim construction that went to the jury was missing something let us take your piece position on what happened i think the context really is that we were looking for a curative instruction from the district court at that point in time because it meant all along the plain meaning in our view is quite clear the claim language itself cues the action of switching to a new key off of the active transmission the construction emphasizes that that characteristic receiver knew at what point along that stream of data switch from one key to the other so as mr fencer pointed out the use of a block counter to monitor that data as it exited and friend transmitted over the communication link was the most important was joined at trial when it was it had been pretty obvious that you all thought the construction of one thing and they thought it meant something else that's the court's job to clarify that construction why would the trial court or do you understand why the trial court said that's a question for the jury well i think the main reason for that is that this this discussion that happened before we'd even had the opportunity to cross examine to be sexpert on the issue so given that this was being raised you know well before trial w even half way done in the district court wanted to see if this was an issue that actually required intervention or not and i don't think it was given that their expert was allowed to testify and you were allowed to cross examine them on the notion that this can all be viewed receiver side and meet the kind limitations as construed well i mean our view was that this record your view is you wanted him to fix it in advance and he didn't and now you're telling me you don't think he did anything different in the j mall either i e fixed it a labrat it out expanded it clarified it whatever and it's kind of confusing and you know it now you're standing here defending the fact that he didn't pick something that throughout you asked him to fix because you solve this problem coming with the expert being allowed to testify on something that was not within the way you view the claims but well i think i don't think it's unfair to characterize what happened in the dream order as a clarification recruiter milly's earlier point that that's there's nothing wrong with that view though is that the construction was clear on this point and what we were trying to do during here was it's clear on this point when it was so clear why wouldn't he have excluded the testimony of the expert which clearly is to the contrary of what you assert values in them that that's all that is required is of the same he values but because we're talking about monitoring a steady stream of data and finding where in the location of that stream to make the key change it really matters a great deal to have actions taking place in both sequences at both locations at the appropriate time based on that pre determined characteristic let me ask you something that i had talked with your opponent on the other side about her your friend on the other side of that and that is the question of if in fact this is the claim construction that we all understood all along is there any conceivable mechanism by which your devices could infringe if this being the one  even considering this theory during trial as he's discussed a moment ago that would switch him so that would transmit one bite at a time there's simply no evidence of that and i think an argument along those lines has been long since waved me so basically that in my mind the fundamental activity then a transmission and then on mass decryption activity so the very act that triggers the switch is an entirely different point in the in the cycle of communication back and forth between these question about your cross appeal is it correct do i understand it correctly that it is just an alternative argument if you were to prevail on the game all of no infringement and we would not be deciding the validity question ye store of key values that could be used at some time in the future our own infringement position was never based on the timing of the key generation but as given the construction the timing of the usage of those keys so any sort of buffering activity would be fine substantial evidence is no more than dr you're offering his conclusory assertion that the claim requirements have been met i think when you look at what the parties understood the technology to be and what the correct play construction does not say at the transmitter it says a new key value is used each time a pre determined value has been set then say that the transmitter doesn't say at the receiver it just requires that it's a new key value in the first and stop that's not what it says it says a new key value singular is used singular where that new key value is in the first and second sequence you are to know about job is to compare the evidence to that language the plain language of that charge and your arms i submit that the evidence is more than substantial to show that dr jaeger testified exactly that that each time a pre determined number of blocks is received in new key value his use he testified that the new key value that used that the receiver is in the first and second simply adds that is the jury question whether a new key value that's used that the receiver each time a pre determined number of blocks happened seven that he value being in the first and second  that meets that limitation that was the jury question that was a substantial evidence and drawing all inferences in favor of the verdict as you must that substantial evidence requires reinstatement of the verdict of infringement that is the pre determined characteristic of that transmitted day that this will cause a new value in the second sequence to be produced he testified that r c for encrypts each block of data with a new key that's a three to eight he gave back to testify just justify his interpretation and his conclusion and his testimony is evidence that a new key value is used at the receiver each time it blocks the pre determined number of blocks has been received have been set and that that new key value is in the first and second sequence ok we will need to move up w