below that you presented the argument the abstract idea that you're framing here that you presented that to the lower court at all well the particularized version of at the end x was not the way we conceptual it at the time but the basic idea i mean that in the the written obviously if you make the want to one argument and the issue is as it does it isn't directed at an abstract idea then you have to necessarily sort of what what is the cost what is that what is the concrete element of it we thought it was easier to understand as an index is comparable to an index but the reality is so you're saying that if i were to do was raise the want to one flag and it doesn't matter what argument you make below you can make any argument you want up here but i actually think that's construction on appeal for the first time if it's not the one who argued blow right so why should you be able to argue a new abstract idea on appeal if it's not the one you argue well vote the way i understand the supreme court's decisions and  writing of cases is if you raise the fundamental legal issue but the precise method by which you articulate that particular legal issue is is not critical and again i don't need the i mean we use the index metaphor because we thought it helped  of put this in context but the reality is you don't need that at the end of the day all you're talking about is collecting and summarizing information and displaying it on a computing device what would be your best case for the idea i mean waiver was certainly argued that what would be you said it's your understanding under supreme court that if it's a question of well you can make any argument you want on appeal related to that question of what would be your your best supreme court precedent for or that understanding  is irrelevant the question is did you present a fair takings issue the question is here is did we surely present i want to one issue to the court and i'll go back to what i said i don't need you to accept my argument that this is an index in order to determine that it is neverthe let me let me take you from the sublime to the mundane if you argue that an unwanted state has to mean not running these are you know my ignorant questions in the margins of of the bra is we look from our perspective you know l g the key for l g and the key i think for the prior art is that you're trying to tap in to the information of the running right as it runs and it's and you're tapping into  suspect they wouldn't limit that because the content you know could be there minimize or just you know somewhere else in the system but capable of being launched but the key here is to me at least that that in the in the prosecution they let me back you up though you just said capable of being watched well i mean it's capable of running or it's running in the your position is what they're saying is they're describing have launched when when it's in that state right although well i suppose that you could say you can think of it that way anyway i think about it is and our system everything is an launched  it's i mean i'm sorry everything is launched it's going on whether you can see it or not is irrelevant to anything and we're polling information in it because that's the purpose of the bet there is doesn't care about that there's a simply a method of making it easy to find something they don't care what the information is in that they're happy to take information away but what they're really trying to do is say once you launch then you can easily see you can see what you want and then you can launch it and then you can get whatever information you want from it that's the that's the purpose of the entire invention of course as if we find in in your favor on construction of unwatched state we still have three man on the factual findings on infringement i don't think that's true i think it is absolutely clear circumstances we wouldn't i wouldn't object to it in that sense because i think at the end of the day the district court would almost certainly either do one of two thanks find out as a matter of law there is no violation under these circumstances or hold it until the i p r proceedings which are construction would we have to roll again and just station we would be indifferent to the sort of stuff although i do think i do think the anticipation issue is an interesting one if only because you know you're in what seems to me a situation i've never seen before where you have an expert who systematically and very carefully go element and demonstrates how it is in fact anticipated in every sense and every way and the other side has an expert to put on and chooses not to put the expert on there if you're if there's an expert who goes through it  they could always take it away if they think that there's not enough evidence at the end of the day i don't disagree with that judge o'malley but the problem with that is a still way this court and it has analyzed this issue in the past is that if you impact put forth enough evidence to get pas you on infringement you might not have to reach these other issues don't we have to reach the validity under a cardinal chemical concept even if we were to find that infringement i mean i think you would certainly be it would be available to reach you then the reason why i don't know that you have to do that here is because you have a separate appeal coming on invalidity that that's that's that's coming out of the i p r process on not sure in that unique circumstance which appealed a separate appeal with with respect to separate references specifically talks about is the reason why you want the applications open is because they are supplying you with the information that's that's how it gets pulled in and it and just any reading of this which requires it to be launched and then the because at this point we're talking about whether or not there's infringement under the proper klein construction but you're also saying that that relates to the question of what running means are on launched right well it shows you why what we what we operate could under no circumstances be reviewed as dealing with an online state you still have the fundamental problem that the district judges construction of on launch state simply says it has to be displayed at an argument there is there that you cannot particular issue in terms of well there's been infringement i don't have any problem doing that because i think i can not only think i know that i can show to the district judge the poll push distinction as the reason why there has been absolutely no infringement under the remain or not and we were basically organ we didn't think it was appropriate to remain because one of the undisputed facts of the case is how it comes out but again dr mallya i don't i don't if you conclude that the district judges construction is wrong you can stop  and send it back but part of my problem is it's like there's one case that was presented a low and you're trying to present a totally different case up here on a whole host of issues and that's that's what i'm having a hard time with well think we have to review we are at what they were those are my understand that but we put before the judge the one on one issue and said it is as clear as we could this is all about collecting and displaying information it adds nothing it doesn't make the computer work better this is clearly bored by this court's decision and electric power and as we try to articulate it here we talk about it as an index you have to buy that in order to conclude that this is nothing but display and collect and display and doesn't advance the ball with respect to unwatched we took the position it cannot be that displayed is the same as launched because that that that that language is used distinctly in the claims in the prosecution history with reach directly from we argued all along that you cannot i think your honor may please support findings of infringement eligibility in no invalidity should be up held on the issue of section one hundred one the district court was correct that the claims are not directly to an abstract idea the invention is to make several the two arguments that we focus on in our briefs are that the ongoing chat invited me in the pattern would be excluded by the proposed construction of not running as well as the bluetooth disclosure which is that column for beginning at line sixty one that talks about the device knowing bluetooth devices in the vicinity now if you have an ongoing chat that means that the messages application that runs the chat is necessarily running and yet it is on launched you can see that in figure three likewise with the bluetooth push pull to not relate so that they do not respond to the bluetooth and embodiment whatsoever on the ongoing chat one i think it's common sense that the message application must be running for it to know that there is an ongoing chat it's this hypothetical that there positing that the application summary window somehow knows that there is an ongoing chat even though the underlying application is not running that i think is just a common sense argument your honor the fi three shows that there is an ongoing chat and yet we know that in figure three that messages application is in an online state it's also inconsistent to construe the term unlaunched as not running because it's inconsistent with the actual claim language which focuses on what is displayed and one is not displayed when you look at the claim language it is display a main menu display an application summary window display limited list of functions or data display those functions are data they are selected and display the summary window when the application is in an on launch state all of that is drawing a contrast between what is displayed and what is not displayed the specification confirms that distinction and importantly the problem that the patentee sought to avoid they sought to avoid a situation where user has to open and look at the application and search within a navigate within it in order to find what they wanted so that is they're trying to get away from a situation where the application is displayed is there a difference between home screen and main menu there is no difference your honor in fact there's testimony from elegies own expert that the status bar a has a radiator as part of a car but it's not a car and there's a difference between the two of them your honor he did testify that the main menu includes the safe he testified that the home screen includes the sounds for i'll give you that he also testified that the home screen is the main menu and he testified that if the state if the status bar is in fact part of the whole menu that his opinion that there is no infringement would change that was confirmed by el manual that was presented to the jury that was probably exhibit two one three and it's that manual that shows the home screen and as part of the home screen it identifies the status bar also it was confirmed by l g own statement trial during the opening statement in its opening statement they told the jury the exact language was home screen that's a euphemism that's the same thing as the main menu but that's why that evidence in the record shows that the reach directly limitation was met and that there was substantial evidence for the jury to find that kind of application they were running and not displayed i think it certainly can your honor and that is figure three for your honor we were not trial counsel so i don't know the exact sitting behind that but it's clear from the record that they did not need to call their rebuttal expert there is evidence in the record and that evidence in the file is in the form of the cross examination testimony from dr rhein and appendix one zero seven four one she seriously undermined the argument that blanchard discloses a limited list he said that the menu that you are seeing the parent menu includes all the choices that is not a limited list at appendix one of six zero to eight one his testimony seriously undermine the idea that blanchard discloses an unlaunched application or that it discloses an application window summary and of course the persuasion or the burden of production really your honor that's all static you are sitting in the court review you have an entire trial record you can see in that entire trial record that there is substantial evidence to support the jury's verdict well i agree on on one point and that is that burden shifting is often confused with a simple translation of  another year away these issues are teed up for the court the trial happened long ago and the this shoes are very clear unwatched was correctly construed by the court to mean not displayed that is consistent with everything you see in the pound is consistent with the problem that they year however you don't have to do that there is case law supporting the fact that you can up hold the jury's verdict notwithstanding errors in the construction if the result would not have been different under the evidence presented and that is the case here they say that it's very clear that there are systems that their applications are running that's not so you can see the deposition testimony it was played at trial it came from a google engineer his name was mr sandler appendix one five seven five the application on android need not have the process running or an activity visible for a notification to be visible by the user from that same application did you give us a video demonstration  blank page it at fourteen for fifty two that references the video demonstration and unfortunate i couldn't find a cd or something on your own i will double check that it after the syrian if we did not submit the hundred five sign is an example of that there's another one in appendix one five seven nine where he testified to the same fact that in fact their process is not running and you will get a notification those notifications are what we accuse as the application summary window and again it one  five eight zero you'll see other testimony that would support a finding of infringement of the young wants imitation even under elegies proposed instruction so i don't think it makes sense to wait here in the record is very clear we had a full trial unlaunched was correctly construed there was no clear and unmistakable disclaimer there and to the extent you look at that issue and take a look at the richards reference your honor the richards reference in that in that that related to that prosecution history statement when they were talking about the richards application running they were referring to an application that is displayed and you could see that appendix one four fo columns three line twenty three where the richards reference shows that the applications quote applications app and not the are open on the desktop appendix one four six one a column one line fourteen it's not unusual a user to have more than one application document or file open on a desktop at any time appendix one four four six two column three line sixty were first a method of switching focus between  understanding is of richard's is consistent with the patent he's characterization of the benefits of the invention the relevance of unlaunched is that the window is not displayed to the user were it already displayed bluetooth application which has associated with it if summary window which lists the other bluetooth devices in the vicinity and in that context of the specification one it's talking about i how does the device and how does that location summary window keep current so that it knows what's going on and one of the examples it gives is this bluetooth embodiment and so how does the device know that there are bluetooth device display the summary application menu quote within a running instance of the program i e when the program is in a locked state it seems to me that what that saying is in the prosecution history corey used the term launch in the way it argues against here on appeal that is to mean open started or running not merely display your honor that those my comments earlier about the richards reference were were addressing that point so when the patent he referred to the application in richard's as running he was referring to an application that is displayed and that is clear in the references in the appendix sites and i gave you that one for six to etc and and and it's how they would read that statement in the prosecution is inconsistent with the benefits of the invention because the whole point was to avoid having to see the application you didn't have to deal with that you could get to what you wanted to write like from the application summary window moreover when you look at the right does referred in body even arguments you make in relation to that where they bel one second on that s context it one of the three obviousness rejection by the examiner where the primary reference was admittedly lacking in the main menu and the richards reference was used to make up for that fish unsee that was the context that richard shows up in the prosecution history so the further you read into the statements about richard's outside of this main menu limitation which is different than the application summary window and on one state that we're talking about i think the more tenuous  yes when i when we were debating filing the notice of appeal i looked at bosh and i read it to say that if you have a final determination on liability and that's that's an appealable order which i think goes in some ways back to the question of what's the most efficient way to handle this litigation which is even if you were so firm here you sort of sent it back for a trial and damages i don't know why under those circumstances it's not equally efficient frankly to wait for the i p r if you wanted to do that said it damages discovery is all done and everything and there's been a lot of that left out i mean that would be a damages probably relatively easy relatively easy unless the district judge is not inclined to want to hold it until after everything is finished on appeal and that's not an unrealistic outcome and in this particular context i remember pogo i do remember we have met the enemy an decision as it comes out because this is one of those procedural issues that you look to the regional circuit for is the one that takes the position that you have some obligation to do something in the face of this rather than simply making arguments by lawyers by the by counsel and that's ni that was the way the the case the issue was teed up with i understand your position i still think it's an unusual situation where one side puts on a completely under under budget expert testimony on each of the back but his testimony was coming in i can't laugh i hard to understand how you could argue seriously that this is a that there isn't a limited list because every list is almost inherently limited because you can only have certain items but we know from blanchard that you have to require seeking devices you know all of those would be running at least some part of those applications in the background while they are or have laid could just as easily be have run in the past and collect that information and then close down and it stays in the system that's all you could get it could go either way and there's no testimony on it i mean and understand if you go either way would you mean well i mean you're good at it and then it gets into the system you close down the chat and it stays in the system as a chat ongoing but it may but that's not that's not open but that the whole point of their exercise was to put this in an unwanted state because in a launch state whenever you know it in a launch state understand i don't know i'm just having trouble getting around the bluetooth example and not the chat on going chat example in bluetooth to seek a bluetooth device you have to be active and running in the background judge's opinion says it's launched equals displayed period and if you read the the claims you read the spec and you read the prosecution history it is absolutely clear that that's  and if you don't go any further than that that's fine then you can get into a fight about what all of this means otherwise but it's clear to me that launched cannot just mean displayed it's got to mean something other than that and in order to be likable here and then from the main menu the only thing i