called a kernel in paragraph eighteen of the nd amended complaint page thirty of the appendix mr greig she alleges walgreens equinox device contains quot contains interface routines security and control functions and logic to manage a set of commands and responses to retrieve the necessary data from the car to complete council which is a combination of interfaces that both receives and requests information from the one problem i have i don't have any problem with your allegation th station console but then elements four and five of the claim have certain requirements of the communication console certain functions that it must perform and my problem is i paragraph twenty four and twenty five of the complaint you then don't have the kernel performing those functions for example in paragraph twenty five  receives authorization identification from the token present moment server there's no question the token presentment server is not part of the kernel and yet that's exactly one of the claimed limitation requirements that the communication concept perform not that a separate offsite server perform the allegation is that the the communications consuls made up in part of the a p i and that would be the that would be the token service provider an offsite server that provides the token is that the bank of the credit card company correct us that's their server that that's correct reader and the point of sale card reader also contains software applications firmware including the a p i which sets up a communication with the token service provider so the allegations of the complaint are that the a p i eleven dollars side of the connection resides on the point of sale device and establishes a connection with the outside server and so even though it are you saying that the token presentments server which is the server that belongs to the credit card company is part of the claimed communications console now no your honor the communications console is made up can you understand why reading paragraph twenty present when server maps onto the claimed at least one communications console i think the confusion would arise if you were thinking strictly of a tangible object  and we're dealing in the intangible of software which is what this kernel is and what the a p i is yes but we're also now at this point trying to make sure we correctly decipher the content from the token preserve and server and you say that right after the claimed limitation about you know receiving information from both of these when communications couns were directing our allegations against the point of sale device which contains the kernel which is this interface which is a program which allows various tangible an  you allege that it comes from not from the kernel but from the token present and server so i'm struggling given that this is your nd amended complaint so you've had three shots at this and you have not yet made an allegation that anything the walgreen device amounts to a communication console there receives an authorization identification reference as required by the claim in fact your express allegation is that it's the token present server that does the receiving and that's not can't possibly meet your claim limitations so i i do all of your other arguments even if i agree with every other argument you have made about elements three and otherwise you have in my mind completely and utterly failed to even make an allegation that their device has one of the infringing required elements of your claim well directing your attention to paragraph twenty five  pos device requests and receives an authorization authorization identification reference from the token service provider yes and anyway if an element for says requesting at least one electronic identification reference from the communication console hole which is an interface so the communication console is the thing from which you have to request the electronic identification reference and your saying in this paragraph that it's from the token resentment server not from the kernel that the communications console is an interface it's a combination of two interfaces not a token present server and that but that's not the question the question isn't whether the p o s device is receiving the pest question is what is the pos device receiving from element five says receiving the want at least one electronic identification reference from the at least one communication console so it has to be receiving it from the communication console and you clearly have this pos to device receiving it from the token present server i just seems i'm sorry but this is just an open and shut case if i could direct the court's attention to column ten of the five hundred and fifty five pair in this is page twenty one of the appendix and starting at line twenty nine again column ten a program apparatus scripts often calls these a p i eyes or sections of code residing on the user computerized devices for example a web browser running on a user computer cellphone or other device can download a section of javascript or other code from a web server and then use this code to in turn interact with the a p i of a remote internet server system i related to the m v token service provider that a p i is alleged to be used to establish this connection yes with the remote server but as the specification makes clear the a p i residing on the pos device is enabled to communicate with that remote server none of these allegations are claiming with the nd of the complaint is that to satisfy different claim limitations it identifies three or maybe four now different components as the communications counsel we can see that in paragraphs eighteen and then twenty four and twenty five supposed communications counsel that's two different things in contrast to paragraph eighteen where the allegation is that the communications counsel is in the point of sale terminal where you check out swipe your card so that at least three different points are components  actually explicitly made in the nd minute complaint so i don't even need to consider it but if you do reach it on the merits it's also not a viable theory i think you run into the same problems that you've identified in the rd limitation the th imitation and the  th and i'm going to focus on the th and th imitation is here the th limitation requires requesting an electronic identification reference from the communications council and then the th limitation requires requesting the electronic they put forth a violin pretty quickly so i think it's pretty customary in courts around the country to dismiss with prejudice at this stage after you've been given three bites at the apple and while you don't have to prove your case released have to put forth an argument that hangs together could viable so here the allegation was that the district court didn't assume all facts as being true i think that's exactly wrong here the district court did assume all the allegations as being true and it's the assumption that all the are they are true they're running into problems here because the arguments are well so i while i think this complaint is deficient you no doubt know that you've heard the argument but the one problem i have with the lower court's opinion was sort of moreover a thrown in at the end about divided infringement and so i just i'm wondering if there is a need for me to clarify that in light of possible other cases to be affected by it because i think i'm not i'm not at all convinced that that was right doesn't mean you lose you win but but i'm just wondering if there's a need to clarify that point yet i'm sorry i just don't know the answer to that i know there were several other cases the round i think of cases that were follow long with this one i think you've all been resolved i think are just the only one left from the latest round before the illinois chicago district court i just don't know the answer to that and i think you're right you don't need to reach that point and in affirming the district court decision here it would just be a district court decision  left in place that would possibly be argued as persuasive but obviously not mandatory have the only reason that the sister corps she concluded that there was divided infringement is because she concluded that when the claim says receiving and all of us even is done by of sale device but she just said it says why or where you are receiving the thing from provided by a server or whatever that that to me didn't create it and if an instance of divided infringement and i would hate to see the law of device infringement to move in that direction because all these kinds of telecom or authorization claims are always going to tell where you're getting the information from it doesn't suddenly bring those servers into the claim and if it did we would have a lot more claims that were capable of infringement under the law devised infringement if that were the correct law so i have just a little bit of concern the requirement in the st limitation that there be a verification token provided by a st user so it's another instance of a user somebody not walgreen's and under the direction of controlled walgreens having to do something to kick off the process if you will so i think that is another separate independent basis why there could have been a finding of divided infringement you understand her opinion doesn't say that but i do think it's decision here is supported by that allegation as well yeah that verification token again is just being received by encrypted digital media access understand it has to be provided by somebody though so it has to be provided by somebody and then receives so there's at least an action that somebody else has to take it's it's not just a situation where the and component is performing all the action by receiving or transmitting there's some other action for that has to happen which is an action by the user so was i from that cloth do you agree that these these claim could be infringed by although he said he had a laundry list of the reasoning that this is the nd amended complaint that just doesn't hold up it's not as if the standard or a few somehow changes and what mr graef shi did in that nd amended complaint is he alleged that the pos device contains a kernel which is the claim claimed interface which requests and receives information each of the allegations is focused in on the point of sale device that's the allegation and that is enough to get past the pleading stage that should be accepted as true and mr grecia shouldn't be held to the standard where the technical feasibility of his invention is being challenged at this stage of the case i would i would reiterate that the communications console is at bottom a combination of the two interfaces the plane in our ordinary meaning of an interface is a program or a tangible device that bridges the gap