first the construction of the term weighted episodes of care which was construed to include a statistical weighting method direct standardization that appears in the original specification only as a prior art method that is criticized to distinguish but then according to cave that disavowal was a racist by defendant claims that were added five years later the second issue of the on sale bar defense after that defense was dismissed on summary judgment that what we believe to be that error was compounded by its completely exclusion from the trial we're talking about software that gave council described this quote no different in any way from the accused to argument to support nine infringement because there's agreement between the parties the optimum uses direct standardization and if either of those arguments result for optum the case is over  are we talking about the cost of treatment see the need for repeat treatment or both or all if it could be all of those things in a few other variables to effect of miss bishop see frequent state it could be any number of variables and it's put to use by a number of different potential users here them the focus of the market is the payer market but it but it can be used for a variety of different purposes and this technology is really a part of the medical system almost no matter what area you're in the social security medicare medicaid kind of analyzing physician officials see is a crucial part of the entire medical  the makeup of the positions practice by his own experience or whether you are using the principle right the optimum method focuses on the physicians actual experience what cave the indirect method is terms that actual experience into a model of that excludes a number of individual episodes that might add to a number of individual episodes so that the individual physicians case makeup and case results match the cave model ok that's how it's yours he said we may not have to decide on sale issue that this was resolved and summary judgment and at the time before house and medicines optum thought that there was a fact issue but this court could not hold that the confidentiality of some terms of the disclosure removed it as prior art or without overlooking the language in both house and and medicines elson is most what it says and invention is made available to the public when there is a commercial contract to sell a product embodying the invention and that sale is made public here the sales weren't only public they were publicized they were advertised our case is to continue with the health  there is data that is received from the customer processed in ways the details of which are confidential but but the overall method in outline is both requested by and provided came into the process or got processed in a certain way a waste went back to customer in a value form coke in that case that was found even though the details of that meth were not available to the customer that was found to be  the system we think that the same analysis applies to both and certainly at trial the infringement issue was analyzed in exactly the same way exactly the information that i provided to you was argued to be and ultimately found to be sufficient to establish infringement of both the system claim and the method claim and so again in some cases it could obviously make a distinction in this case it now this court has said following the five case that policy justifications don't matter but in this case in medicines the court analyzed her or described policy justification as any way and in this case the policy justification that looms largest for us is if this predecessor product the same if the later product voice sold starting two years before the patent application the buyers of that product understood that they were buying a product that was free to the public to use consistent with the terms of their agreement with optum it wasn't until eight years later when the patent honor and i think that what your honor is focusing on is how historically some third party claims the claims of the use by the jews party are treated differently but it is hard to find that distinction either medicines or housen and the policy justification that i was trying to describe was the policy of discouraging the removal of inventions from the public domain and that's exactly what happened here defendant and that's the case in which the court set out the rule that is also a political here if the accused product is the same as the product that was used before that's sufficient to establish a one  when the application was filed no such phrase appeared anywhere the application or the claims i see that i have four minutes left and i wonder just on home some twenty to twenty two is one of your sort of climbs right yes the case that we have in front of us right now when when the other side asserted infringement was it your selling something yes using it worked the focus was on software was sold by three application though the way the software was not in itself so it was rather data comes in software process it different process data goes back that mr lang caster raised i think first and foremost picking up where mr lancaster left off it's important to understand that there was a there was a flow of activity over time for this predecessor company i which eventually became opt in site during the period prior to the one to six patent being filed they did not have a product to sell the only thing they could do is taken data from a customer run that data internally and distinction between a patent t sale and a third party completely disconnected third party sale and this instance optimise i was completely separate from c c group let's put it this way you agree do you not that reference which we're calling impact analysis is actually a frankenstein of five different documents from different time periods which both parties admit it deal with multiple methodology they do not relate to the same methodology and so to the message claim which is claimed twenty two but not with respect only twenty nine which is a product claim what's the difference one of them is it as a product tangibly embodied in computer code so it's like a cd for example that you would sell and there was no sale of a cd there was no there was no product of that writing to sell and so unless we're going to ignore entirely the fundamental distinction between those different types of claims there have to be some meaning behind that triggers the on sale bar i do not agree however that that relates to this case because we're dealing with a third party use and there are fundamental distinctions in the policy behind inforced of the on sale of our knowledge problem is that we have cases which back to the eight hundred in the panic case which which discusses the entire purpose of the anselmo bar and the purpose of the onset of our as they recognize there is when the patentee is in control of the timing of his or her own commercialisation there should be a heightened scandal for them so in other words we're going to provide an exception to the normal rule that the public must be conferred knowledge of the invention in this circumstance in which the patentee has control over the timing of his or her commercialisation and decides to go ahead and commercialize that is fundamentally distinct from this case in which we have no control over ottoman sites commercialization and so the on sale bar simply doesn't apply to the situation  that those third parties are as i said in league with or somehow affiliated with the patentee and the the body of case law is filled with examples of the patenting not taking a stand the third party is taking a step with the patent is knowledge awar except what about one or two g why doesn't want to apply the fox group case requires that for one of the true g the lack of concealment requires that the thing that is not concealed is what the invention concealment the question of concealment and really the purpose behind all of this is the fundamental policy of making sure that the public gets access to knowledge of inventions as quickly as possible and one of two g is is the details of the venturers exactly how does it benefit the public at large if a company is permitted to continue to sell a product in a way that doesn't confer knowledge to the public but the use that sale later when someone comes along and discloses it through the patent process in a way that we want to encourage but that person gets to invalidate this person's patent and between those two people in this is what gore garlock says as between those two parties we want to promote the party who is going to bring invention to the public domain and this person here who offered it for sale in secret didn't do that and that's that's what rescue net says that's what  we're not addressing that helps you case and again i believe that's because the health and medicines co cases deal with third parties that are somehow affiliated with the patentee you have a true third party sale it simply cannot be the private commercialisation of that third part third party access to a prior art reference one thing that i've been juggling in my mind and i'll admit i i don't exactly fully understand or appreciate the impact of this but essentially what that what that means if we were to interpret required to truly third party sales it would mean that that third party sale can act as an end to supporting sale but can never be used as an obviousness as part of an obviousness argument and i don't understand how that ok so it wasn't part of the original it wasn't your well i shouldn't say original prosecution because it was part of the original prosecution file but libel for science says that you've been for purposes of claim construction you take the patent on the record as it was issued you do not look at the time it was filed you look at the time it was issued and that is i think pretty clear in the law because prosecution plays a role in the claim construction process and so we can't simply ignore and i know that the appellant characterizes these as laid out it claims these weren't laid out he claims we had these claims as part of the prosecution process in the original case so they weren't looking at it and anything that takes place in the prosecution bears on the meaning of the claim terms as they're construed by the court and the reason for that is that entire record is what informs the skilled artisan as to what is inside and outside the scope of the invention so very standardization the exam considered unclear how the calculation brutalizes direct standardization and then you say the direct standardization if it utilizes each rescissions episode distribution of weight dick statements quite explicit stating the specification out what the invention requires don't you think more in the prosecution history than this should be needed to overcome what we would in these circumstances otherwise i think find a very clear disclaimers that so i have a couple thoughts with respect to that first of all your absolute software case states that when the that one we have claims dependent claims that explicitly bear on direct standardization so a skilled artisan reading the patent would not believe that there was a clear and unequivocal disavowal of scope because the inventor has claims absolutely plain on the face of the claim not even a question of interpretation so the second that the us does a good question and the second thing is we have to look very carefully at what the specification says and  experts in this case agree to this by the way and this was testimony that came out of trial as well the second error that's identified in the in the patent it does not say the invention does not work when you do this it doesn't what it says is and their expert agreed to this a trial what it says is in certain circumstances when you have low data volume when the number of claims that you're analyzing is small the use of director versus indirect so direct and indirect as it sounds like you appreciate have been around for decades and there is no dispute by those skilled in the art that either one works the notion of waiting comes with a direct or indirect standardization skilled in the art because as optimus arts expert even agreed when you look at this he understands this to say that only in certain certain circumstances does this lead to error not that you simply can't use it and if you have a large data bottoms which many health plans do you're we disagree with you we think this is a clear case while you lose them i don't think so your honor for civil i don't know and obviously this is up to you not to me but i don't understand how there can be a clear disavowal this was a term to claim construction at the beginning of the case and so we directed our entire fact discovery in this case with the understanding that it covered both and so we did not press on all the ways in which the software might satisfy the ind honor i think our position is simply that this this argument should fail above i think very brief points your honor just as to the commentary of the experts on the weighted episode of care and issue if the court were to look at the testimony of the optim expert thomas you would see that his clear testimony was that there was not support for direct standardization within the baton but of course we have to leave that to the record the second point that i wanted to make was that section one hundred two point which as your honor observed upfront is not an issue that the court need to reach if it resolves the infringement issue but i wanted too remind the court of the view of this product process distinction that case council took at trial and that you again was quote this is not a different alternative referring to the earlier product this is telling the story of the caves argument stands or falls on this third party distinction what the court has already inquired about a distinction that that you can't find in health and or medicine but maybe more to the point it's a distinction that you can't find in the supreme court's fast decision and the emphasis on looking at the language of the statute when you run through one and two and one of the members of this panel already observed that there are many parts or one or two that focus on which party is relevant to that particular section not so for on sale there is no limitation within this patent and so within that you and so it does seem that this is a pretty pure case of what is perhaps the fundamental rule of pat litigation that which infringes if after invalidate it before and for that reason we ask for the relief that we requested i have one more question for you let's suppose answered i don't understand what what the issue would be your honor because there was agreement throughout the case including at trial that the method that optimal used was to rest standardisation there was no fact issue left to be resolved by the district court that's part of the record as an agreement between the parties so you have a claim construction excluding direct standardization you have the agreement that that's what often practices that should be