jury side disputed issues a claim scope and claim interpretation this failure of the district court to interpret allowed google to take contradictory positions on the meaning of the claim to the jury google sole technical expert and made it that he knew one interpretation of the claim for one infringement purposes and then opposite interpretation for validity purposes the facts here are undisputed and ruling on summary judgment however the judge explicitly found that it was for the jury to determine the open issues a claim construction at trial the parties agreed on how google's system worked during our closing argument for example we pointed out that our expert described the accused products exactly like google's corporate representative did on the witness stand and in google's closing arguments it stated repeatedly that the facts were yes your honor that is true but it's actually really a mark when issue and not just the two is really a marking case right that it's up to this the court and judges to decide disputed issues of claims scope and not the jury and so what we had here was that disputed issue after disputed issue it was the jury who was deciding this case makes otu look like peanuts but can you so he knows that it needs to go back for another trial becomes the jury was for with respect to infringement the facts are undisputed in this court can render judgment on infringement with respect claim construction on the display this is the decision it would have to be reminded for of course the four claims that have you know for a new trial in the four claims that they tore did not rule were not invalid and of course on damages but with respect to the claim construction issues yes your honor we are asking for  disputed claims google did not appeal those four claims as part of this appeal so this court were to enter a judgment on our behalf we would have to go back and try the damages with respect to those four cla to take the three issues the first one is the creation processing issue and google starts this argument by saying that in fact it was the agreed construction did you object to the construction of  address selection in a second but with respect to creation it was an agreed and truxton on creation but that did not answer the fundamental question of who creates that is from the processing definition and that your honor to drain it was absolutely not stipulated if this stipulated then those of this take it out of the the the o to k so to micro case to be clear it is not stipulated on the key point your honor the creation was construction on the creating through on on creating it was agreed but creating did not answer the question about where the creation occurred who created that was in the processing then we did not term that the present invention prompts the seller for information that is then used this is column three line twenty eight that is then used in the creation of a presentation and then it talks about the central computer control the presentation generation program seventeen ten along with the presentation rule database which is also agree that that is in the computer controller then create the presentation for each and every media outlet that has been chosen that is of the issue that the creation was at the cell and not at the computer controller we filed our opening brief and that case just two days ago and on this very point of where the creation occurs it goes into heavy detail about the claim construction about whether the creation is that the seller interface or the computer controller and then it's an absolutely critical issue to this case about where the creation of or even if creation occurred in the computer system google's system select corporate representative at trial described in the record exactly this quote matching process about how it works and what the record is is crystal clear on that point that it is a matching process and that is in the record at am a bidding process that they're going through right of course your honor and it's a comprising claim the fact that there is a bidding process makes absolutely no difference to infringement the fact they are they are matching different from the way you google x which is exactly the other way around we completely disagree with that your honor and again jury seems to agree with the way that i just stated if you go to google's read brief or it cites that argument on page thirty page thirty page thirty six year on i'm there you will see not a single citation to the fact that that is what they told the jury at the jury the issue was only about whether the selection was at the cellar interface or whether it was at the computer control or interface and there is again site after site that is taking place at the computer control and in fact your honor if you go to assert a claim ninety dependent claim ninety it specifically states that it is the computer controller that is determining whether to select the advertisements that is completely inconsistent with exactly what is being said here on both point the issue directly was whether the seller or the computer controller selects the advertisement and whether those ads were guaranteed to go to each of the selected media venue's so on that point it is crystal clear that in fact it was not a disputed issue of fact as google is now post hoc trying to make it but there is not a single record site that actually states that that was their argument and even if it was their argument again on the  eight five nine three this is a global score but representative testifying that it is a matching process is a matching process it is not the the idea of splitting ads for media venues or media business for as it depends on the perspective and google system admittedly matches the ads with the media venues and cougars google's can control or does that completely go on claim construction we think that number one  computer controller that the selection is done by that computer controller as the specification and the claims specifically state that preferred bottom and states that the ads are not guaranteed to go to the computer controllers and the publishing can go to the browser which is another your arguments and not have to go through the description that i just gave you that is absolutely true your honor except for the fact that the issues in front of the jury were not factual issues they were issues on scope and on that point we are entitled to a new trial look we lost our claim construction on this to create the ambiguity if this court claim was not construed in your opinion is left to the jury to construe all three of them all three of the disputed elements the creation processing as i just described the beginning of the human publishing we lost where you proposed the construction create an electronic advertisement for publication one customized for each of the selected internet media events the trial court adopted your construction what was this and you didn't object to that by the way of course so where's our problem the problem your honor is that does not answer the question of you proposed if it needed to say something else shouldn't you ask the court to say something else no your honor if you look at our proposed definition of processing that  struction you had proposed the construction for creating and didn't specify where that creation process is going to occur that sounds to me like it's your problem not the  agreed term but part of that is that martin you were happy with it you didn't object you sent it to the jury you lost and now you say well that would they we should have said something else so we could have won that doesn't that sound like change in the rules of the game after spent played respectfully your honor i think that is absolutely incorrect i think that that is and if i may just the problem you have is you propose the construction of the term it was agreed during the briefing that that did not answer the fundamental mark in question of whether the creation occurred at the cellar interface or the computer controller that was at the processing limitation and if you look on page thirty of our blue wanted to add terms to the claim construction for creating you had to do it during markman and object and get it done at that point you did not do so you accepted it went to the jury you've got to play by the rules that you gave to the to the trial so i think at the outset you you seem to agree that the party stipulated ash to the construction of the creating terror that is absolutely true we did that that shows for creating was stipulated it was then for for the for the selecting construction it seems to me that there was it was your construction those aseptic by the court so you're not objecting to so that only leaves us with the publishing as i wrote it yes your honor but if you look at the facts if you look at the facts the issues that were at heart at the heart of this case on both creation which did not answer of where the creation took place that was in processing and selection that was all important about who creates and who selects the central controller or the seller and that is the same issue and and that was cheat up specifically to the jury if you have this di argument about inducement or contributory infringement as it is a pure literal infringement case and on the facts because the facts are admitted that even if you were to say that the you know we have to lie in our bed the facts are undisputed here the facts completely even under a new trial standard the fact that again google's expert use different constructions one for infringement one for invalidity that is crystal clear from the record a new trial has to be or please the court this is not a no to micro pace in this case the district court conducted a formal claim construction hearing the parties had pursuant to local rules and gauged in a process where they exchanged in that conferred about meetings of these terms they reached agreement as to some of the terms and some after some of the terms they had a dispute which was formally presented to the district court in the district court in a separate marker in order formally resolve all of the claim construction issues are you arguing different meanings of the d n a infringement no your honor and in fact if you look at the way the trial was presented we were very careful your honor in the opening and the closing we forbade him quoted the use of the claim language or the construction so for example your honors are principled on infringement argument before the trial court which at the creation step the one you were just asking about was not met that was our number one non abrasive an argument the seller it's a back issue of matter if you look at the second step of the infringement analysis application of the claim language as  was not in the language of the construction was not toyed with what was argued was whether the accused technology met that construction in there was a dispute i want to show guitar picks and i want that to appear on every rolling stones site so when people go to see the rolling stones they'll play my guitar fix they say this is happening the same way that the ants are  created and sent to the rolling stones dot com site to be displayed in exactly the same way that the claim purports what do you see is  do we dispute that multiple grounds will give you two one to start with the claim language stipulated construction of the creating step is quote why i've got a i've created an ad for my guitar pick and what happens under your system and what happens under there exactly under their system under the claim language the the advocates are inputs information to create this ad i had my head on the car and it's custom and the stipulated construction of that creation step is quote create an electronic advertisement in a form customized to each of the selected internet media venues presentation rules so you've got the media but this is the pattern not the excuse you've got these media venues and they each have their own presentation rules and what they claim very clearly stated within the rules say that my aunt has to be purple in less than one hundred fifty characters so that might be one example of a rule and then another  media venue will have other rules maybe it has to be blue or it can be bigger or you can have images of the other one you can't whatever the pats are talking about and that claim language clearly says that there's inputting to create is to create an electronic advertisement in the form customized to each of the selected internet media venues presentation rules now step two and so on to the path i'm celeste ing rolling stones dot com and eagles dot com and i'm customizing to fit those exactly me the creator exactly the advertiser of guitar picks exactly what happens in your system in our system you can't do that you cannot customize the media venues it's a factual issue that was presented to the jury there ok go ahead what you can do is you have certain fields that you enter regardless where you are ever and up second point your honor in the google a google system i'm just an average user i go onto a web page so i go on to rolling stones dot com and that rolling stone stuff that come in your system does not have any advertising on it but you send separately to my computer certain apps that you selected for me particular i'd like to use a different example if i may or out of the rolling stone let's say rolling stones dot com is the advertising i think that's what you're rolling stones dot com is the average i guess the median right so then i go i mean just the average joe user of the internet go on to a website that website maybe its local mom and pop shop the user decides what web what web site to go to and as a result of that the google system then takes ads and that website is signed ads and for content runs a very sophisticated algorithm and i'm not going to go through all the steps that would take too much time it's in our papers suffice to this day not all ads at the advertiser sign up for get placed there so it's the seller does not in the advertiser seller does not input information to create an electronic advertisement in a form customized to each of the selected internet media venues presentation rules that's an element stipulated construction of the creation element we presented factual evidence that that wasn't met the jury agreed with us there's no allegation that we made any sort of inconsistent arguments about that construction in the opening appellant to prepare so that an media venue element well that element we presented wasn't bad as well and we presented evidence that actual evidence about how our system works in the google system as never gets sad to the media venue so the google system the advertiser is only allowed to enter certain fields of information and they're not allowed to customize the depicted media venue it's just simply aren't and but there was a factual dispute  and the other side presented evidence to the jury that entering that these fields of information is quote initially filler customized was what their expert said so you're selecting my ad for  the advertiser did not inform other information to select and the system the google system does not select media venues tire point of the system to match ads to web site that third party user like you or me would go to the whole of the backwards process of what's being talked about in the client so why didn't the trial court by the way used a glossary definition for did take the glossary definition but that was just publishing and there was a larger phrase is my recollection serves me correctly which was the publishing to publishing to the media venues and  simply were talking about a difference between the work publishing two or publishing act and it really is a distinction without a difference if you look at it because the court also adopted the glossary definition which i think said something often has something to the shows that in the google system net the advertisement is never made accessible to publish to published at any choice of words you want the media venue the media venue has no idea that the ad was even said to the user but the evidence shows that what happens at the at the end result of the process is that the advertisement that gets selected to the auction process is spent directly to the browser  the individual who access the web page in the first place never sent to the media venue whether you call it publish to publish at make available for it's not done and so the claim construction issue there you honor i would submit it is not a significant issue and again this isn't about fighting the jury over clan structure this is about the application of these agreed constructions or in this case the slight variation to the accused systems and these experts having a disagreement as to the second step  if i could just go to the new trial requests very briefly my first point your honour's was hey this is not o t micro note you know i kicked continue with that but in the interest of time which you have further questions i go on to another issue which is  their request for a new trial we believe that requests should also be denied the same request was made at the trial court level in the truck or plies appropriate standard as to whether it was against the divergence against the great weight of the evidence trial court exercised its discretion found that this was a very hard fought case denied the motion for a new trial on the same arguments we're seeing here and the standard for this court then is jury could find on infringement we've just gone through two of them third one was the the selecting so that is the display each of the selected asked did you make an improper argument at that during the is perhaps i used the word a little ambiguously but the it that they're pointing to i was referring to the system and i represent your honor that in both the opening and the close that i was very careful to start evidence clearly your honor same thing with there pointing to our mr lanning excerpts those are cross examination testimony your honor on direct examination of mr lanning your honor which i did same process for each module where he was going to provide testimony relate the issue infringement the first thing we did was we put up so there'd be no mistake  claim language of the exact martin construction and the questions were and the they don't point to these questions or the questions where did you apply that construction yes i did and if you reach a conclusion as to whether  construction yes i did spline to the jury what your opinion was that was the format following the rules set up by martin and that was consistently paula throughout the appellant should not be able to take some paring back and forth on cross examination about well you interpret this under this meeting or that meeting as us creating an issue and to micro our client destruction issue we didn't even raise that they were the ones raising that  they also point your honor to the fact that we objected a couple of times and i'm referring to the court at this point ok the court says google also contends the claim language requires the seller to select particular internet that the seller have to select instead we pointed to find it here met the electronic advertisements displayed on each of the one or more of the selective in the internet media venue that's the argument we made a trial and it wasn't inconsistent with the course martin or so in summary there is ample said is completely incorrect on the trial record we started this in our brief it's a one eight nine three tell me where i'm wrong this is on cross examination because the court's instruction requires that be displayed on each of the selected internet venue's questions that each of the selected internet media been used that were selected by the computer system isn't that right mr laning no that were selected by the seller at the solar interface that was their position for non infringement they took a whole different position for validity the each of the selected in this is just one creation judge rater to each of the selected internet media venues that leaves open the question of who selects where does the selection take place is it that the seller interface or the computer controller and that was answered by the processing limitations as well and so who selects is still the fundamental issue and on the fact that mr linden did not use inconsistent positions that is just completely again inconsistent with the record this is in our blue brief page forty eight we say so this is why he gave  different interpretation different interpretation for publishing and creation that he did for not infringement and then he did for validity and so we pointed out that inconsistency and why do you use this interpretation for of validity when used a different one for not infringement and he says quote this is consistent with the interpretation that dr ryan has used to show infringement of google's product we asked him again on publishing mr  said the addition of at really didn't make any difference well again the record does not show that it created this ambiguity so that for example it was undisputed in the google system that the ads went to the user's browser and that was their not infringement position but in the prior art it also went to the user's browsers browser so there couldn't have been any any interest a patient if that were true and we asked him this every point we say isn't it true that in the prior art system it goes to the user's browser how couldn't dissipate and he says i've used are you creating new interpretations and correct that before it became a problem absolutely not your honor they never corrected that they used that violates the axiomatic principle from this court that you cannot use different claim constructions for invalidity and non infringement and that by itself forgetting about the claim construction issues by itself that  because that is a misapprehension of law everything that mr verhoeven said he tries to make them factual disputes but it is entirely dependent upon who selects is it the user or is it the computer controller and if that is  computer controller then we there is a infringement and we have four valid claims already and so that is the crystal key issue in the case and again coming back to creation because i understand judge arena understand you say well you know line you're bad because you agree to creation but if you look at it if you look at that term of each of the selected internet media venue's that it leaves open the question of who selects that does not answer that that was an issue for the court to decide that it didn't decide and in google's argument it had a different position of who selects one for and on infringement when it was they said it was the seller who selects and then one for of a little bit and they said it was the computer controller that selects and i'm looking back at the records and when i went on cross the expert was asked to be refreezing validity differently from infringement he said no sir that's not right i'm reading them the same now maybe there was a he was correcting himself at that point but doesn't that go to the jury then the jury decides whether he was misleading the first time whether read properly the record shows otherwise there are understated facts here that for a non infringement they used one interpretation and for ability they used in other a target taishan what the claim says what the scope of that claim that is for you that is for the district court that is not for the jury to determine about whether you can have one interpretation for one and another interpretation for another and the fact that he can say the fact that he can say oh i use the same interpretation when in fact he wasn't using that same interpretation that is an issue for you to decide as a matter of law about what the scope of that claim has and doesn't have i see my time is about to expire are you happy to answer and has expired thank you mr n