s so that there is something to respond to and so i would give you nine minutes for opening and six minutes to rebut i see gentlemen that you have asked for five minutes apiece that's fine but but just understand that means i don't want the perspective of one skilled in the arts here mr shepley case was terminated by one judge without a jury and without any input from those killed in the ar these defendants as i understand it are simply designers of the software is that right that's correct so if we're talking about an apparatus claim how could these defendants practice each and every element the ether we're talking about particular claims with particular elements of particular limitation how do these defendants practice each and every one of the elements of the crime where they create a structure that contains every element of the structure that they make and sell a structure that has every element of the asserted claim so this is called a computer kno the popular culture we talk about apple i phones and usually when you think what apple phones you think of a physical phone we also talk largely about android phones the big competitor graphics but android is a reference to the operating system which when you're talk about android phone software even though it it's seems an intangible is reality is as much as an apparatus as a hardware device that is hard wired with us to do that so we're arguing that  the that the computer hardware is largely something you have to have in order for the thing to turn on but the actual apparatus itself is in fact the apple let's let's take a different or maybe it's the same issue but a the structure suppose well are positioned there if you look at the particular claim that issue every every element in a just couched it has means language our contention is that the rebuttable presumption in that particular claim element has the structure the claim is actually   allegation that's correct you appeal from this missile but and yet you separately complain about the denial of the motion to amend but i don't see that you included of the words that were interpreted to to be alleging joint infringement and argument was we didn't put those words into the into the complain issues each one of us and we will be speaking on behalf of all the pallies with respect each other's issues and we'll use the phrase software providers instead of the individual names but we're speaking on behalf of all of them and i'll start first and i'll  honor why we don't make or sell the apparatuses client by claim one that mr frum will get up and talk about the language of the patent i think going to the point judge reading was trying to make and then finally mr abbott will get up and talk about why we don't and it's claims one which is the only asserted claim and specifically one of the processor means under the control of a priest or a computer program now let me point out that it is the processor means that you've been asking questions about is under the control of a pre stored computer program another words it's under control of the software that means that the processor means cannot be software or else it wouldn't be written like this the what we do possibility that is not what a processor means could possibly mean because a judge or ballot pointed out this is means plus functional language and therefore they're stuck with the structure that they've identified in the specifications which are intel and what he just that you know i don't believe that's true and you can ask him when he gets back up in rebuttal but below he certainly agreed and it's repeated references that this is a process for me but let's look at the language of the first amendment complaint the operative complaint because i don't even know that you need  devices the software providers don't make handheld computer devices and just so that you're clear on this judge chance if you look at paragraph sixty nine which goes to weight watchers but the same paragraph there with respect to the other software providers they say  wasn't presented it is clear that they have argued for the district court they represent their only or great claim one infringes and if they are only arguing a direct theory of infringement but even if they had argued alive we would say that we still do not practice that because we do not control the end user which is the critical added piece and we do not control apple which is the device manufacturer and therefore we could even infringe under the meat under the  didn't write the caption but you're correct that is what the caption says it also says not part of my understanding and i should probably check to see if you'd like me to outer it is that that is a web site web weight watchers dot com through which weight watchers international does business but i will be happy to check that if that's an issue in your mind and if it is an issue but i don't need you to check it it might actually if you went to that website it might actually plus functional language where legal fifty one hundred fifty two congress amended the code and allowed certain broader what seelig broadly means plus functional language would be acceptable to pass however there was a once you look at big at the structure events described in the specifications in the patent even to get to the next step we don't need to get to a claims instruction you don't need to get to a margin hearing all these issues are resolved fully  simply looking at the face of the patent nowhere in this patent describing what software is needed it simply describes in this overly broad language which with theoretically subsume anything that could  software vs hardware what the patent really a strike is a black box data goes then the data is outputted to an end user what happens in that what that black box is and how it works is not described all that's right and sense we have those rulings that describe clearly what the courts what how the court is to look at these there's no need to get into whether there's no plausible basis that there's no plausible argument rather that it's different for different different types of code but that's one way to do it that particular computer when we're writing code onto a computer up some kind that's not that does not become infringing device or an apparatus even if it is mirrored exactly what was in the patent it's not until we get to the other steps about the making of using the selling it has to have include all of these elements because this as you said over the easter so for mr huntsman to claim to be plausible the processing means under the control of a priest to a computer program all have to be something that is floating over potentially but they just disclaimed your an infringement right not only that they were not accusing you of joining infringement we want to strike the cancer language from our complaint and they told the district court and this so we're left with the outcome and scintillated which is downloading software by a can consumer did not direct infringement by the software provider the alternative argument they didn't make that i was allocated to until we relied on that case in the district court which cited it throughout our brief here remarkably mr huntsman did not acknowledge it or even reference it in any of his appeal breeze so this is these arguments are in my opinion a frivolous it's i mean it's it's clear that we have sent repeatedly that every step of a claim must practice and you leave it eat you need to have to react infringement which means every element of a claim has to be has to be practiced and it has to be practiced either believe that the court has incorrectly conflated methods that claim infringement under two seventy one b with infringement by use for patent under two seven one eight which court the district court of this this court and since feeling argument is we believe that case to the extent it holds that every element of the claim has to be exercised on the use claim we believe that's fair that the supreme court has held the beneficial use standard is the correct standard and under the supreme court precedents beneficial use does not require every element of an apparatus be used that's different than asserting every element of the method claim to be exercised clearly  benefits of all the uses which it can be put no matter whether you conceive the idea of the use or not and this court said in the can to catalina marketing international decision to eighty nine  in the in this use case what happens is it's already been logged on a phone and it's already so there isn't really the issue of the hard work the software because by the time the use comes up it's a running functional playing ok they provide intitled to to require a license for any use of this patented device as long as it if you can show that it's beneficial use that we would that's the supreme court standard just i'm curious why have you chosen not to