please the court my name is laurence hoosick and i represent real estate alliance ltd which is known as real i participated in the drafting of the patent in suit and reels majority owner is mark tornado the inventor of the patent in suit to come before this court to prevent a clear miscarriage of justice stemming from apple e moves litigation misconduct and district courts blatant disregard of discords mandate following the second appeal like you say have come before this court has come before this c of the nature of the users of the selecting step and their relationship with aptly move as well as moves knowledge and inducement following the real the remand following the mandate the district court said that that mandate had been a vista rated by the supreme court it allowed only a status report to be filed there was no additional finding of fact there was no additional finding of law merely reinstating and so the district court utterly ignored the mandate in this case this compound the district court error because the district court failed to follow the standard procedures in summary judgment under caterpillar in which it should have acco an inducement and there was nothing else left to do i respectfully differ with your honor there was much left to do what was left to do the district court never made a factual inquiry with respect to all of the users of the selecting steps of the claim the district court did not accord either the expert testimony or the factual evidence its due weight there was substantial expert testimony that some of the users had contractual relationships with movie appling there was substantial expert testimony and factual evidence that the host computer system in fact performed those steps  only or this is under an induced infringement theory because the question in the mandate was what is the relationship between move and the users a question never answered by the district court and is their knowledge on the part of move of the patent and did it induce the users to perform those steps again the district court ignored those questions in the mandate and merely reinstated its prior summary judgment positive a hypothetical that a computer could select if there were objective criteria that were looted from a user and then the computer would say this is an area where you should look for a house it was incumbent upon move at subsequently in the district court to say yes your honor our find a neighborhood function for forms exactly that function and yes they failed to do that in discourse and then double down by disclaiming that function in the district court a clear error in fact and that error in fact creates the hardship creates the manifest injustice that i am here to address today it is a factual finding i am not questioning the law of the claim construction of this court as applied by the district court but the district court clearly ignored facts on the record before us and those facts were obscured by the litigation misconduct of moving we believe that it is important to recognize that and then through recognize that we are here today to talk about two seventy one a divided infringement soley because the district court made these errors that should be remedied because had the district court recognized the true function of the moves system we would not be here discussing the question of whether to seventy one a should be properly interpreted to allow the standard as it was at the time that this case began eight years ago namely that parties acting in concert to perform the steps of the claim should be a judge to be infringers this is a case prime mover someone who pushes the button to get it started pours the chemical from one beaker to another operates the equipment and i know having drafted this claim that the claim in this case is a claim for how the computer functions putting a user into a claim can be done with literally any method claim and this is error but beyond that your honor what we're facing here is a question of how the claim should be regarded and the second twisting of that nose of wax is the case that during the pendency of this action we have gone from the standard of on demand to requiring and if you were thinking yes or i you would your by clearly demonstrates that the hypothetical posed by judge moore and repeated by the district court as a justification for its ruling of non infringement ignored the find a neighborhood function that we but  wasting scarce time on an issue that was not briefed i'm wasting it i'm not wasting your i don't know what i'm doing is addressing the question of whether the prior holding of this court was founded on quicksand was founded on a misrepresentation but the basis on which we are here to argue that those decisions were improvidently decided that the consistent narrowing of the standard four to seventy one infringement during the pendency of this litigation is the fundamental error the ghost in the machine the user in the method claim and that but for that fundamental error we would not be here arguing two seventy one a scope and so we do not believe that there is a lot of the case issue because there is wrongly decided fact here there is no doctrine of law of the case that is fact related it's not a fact of the case doctrine the law is that either a user or a computer may select and we do not dispute th but the clear facts on the record absolutely indisputably in expert testimony and documentary evidence show and should have been accorded full weight in the summary judgment context show that the computer system and those who have contractual privity and relationships with move both performed the selecting step to what you do you want to then to address the arguments you're making at the same time which a panel can do recommend to the court that this case be considered off yes your honor absolutely we had petition for hearing on bond that was denied i would ask that this panel recommend in addition to all of issue as this panel as this court was invited to do by the supreme court in its act in my decision recognizing that there is an anomaly here there is a hole as that in the taishan was taken up in the ne fifteen second my decision in this court we did address the issue yes and i would ask that that issue be returned sitter and readdressed the reasons that i am here your honor is that we face without ever having had an ever then jury hearing without a shred of testimony being before you for the third time a summary judgment decided quite in opposition to the standards of summary judgment set forth in caterpiller a summary judgment which did not give d weight to the evidence and which misconstrued the law and lastly which ignored the mandate of this court because it may be on full factual valuation that there is no induce infringement in this case time you can either of continue or say that what one quick question m i am i correct that you are not asserting a divided infringement claim in this case we are at the moment under the law as it exists no no no no i was it seems to me that in the record below you made it clear to the district court that you were not asserting a divided infringement claim lie it doesn't make a difference in your case your honor at at a time when that law was in flux we stated to the court that it was our belief that the facts properly accorded would show the mood computer system performed all of those steps and that you were not asserting a divided at that time under the law has been decided yes well at the time at that time we did not waive that argument we did not say anything which would been a knowing affirmative waiver of making the argument in the case the law changed and you made that clear i believe we did your honor and they were where did you make clear in the record i just want to be clear of this i believe that we made that clear in the record by asking the district court to accord proper weight to the facts to observe that the users had contractual relationships and thus under the mastermind theory under the direction in control theory and under the contract theory there was no need to consider the divided infringement question thank you for his sick we'll give you three minutes of a bottle court should affirm the district court's entry a summary judgment of not infringement because under the law of divided or joint infringement both as it stands today and as it stood at the time summary judgment was entered moved cannot be under the supreme court docket my decision in the absence of a liability for direct infringement there can be no liability for indirect infringement and that's it that's really at this point although this court needs to consider on them to to address the been about this is a real case real says a lot has been moving a target the only thing that has been a moving target in this case is a real theory of infringement it loses want it shifts to another it loses that it's just does not direct or control the performance of it that at that point it was incumbent upon real to come forward with all of the evidence they had to show otherwise to either show that move in fact performed all this that or to show that they evidence truly show that new performed all the step and they should have identified at that point they didn't nor did they act so any evidence of direct action and control as you pointed out correctly your honor he has ways that argument that spirit is that correct if ever there was a more clear case waiver for the support i am not aware of that those issues not raised below cannot be heard for the first time appeal that's from the courts conoco vs energy vs and environmental tape for sixty f thirteen forty nine and a million other cases that say the same thing is or is that they did not raise direction and control not only did they waive it but they affirmatively a valid disavowed it they they came out and said the user does not select moon is the only one of the last and they even went further and said we thought it made sense to get in direction from the court before we went ahead and foundation for summary judgment on the issue and real file a brief saying it's a relevant move has and right to my has nothing to do with this case this is not a direction and control  we think that not only is there been a clear waiver in addition to the law of the case with say this court has already decided no direct infringement they can't get a second bite at the apple we cannot go door when the court denied on bank hearing what the they moved for reconsideration and it was denied as well so now they're actually coming with a third theory that we are hearing now for the first time which is that we actually didn't directly  we've not seen them for so between waiver between the law of the case between this court prior decision and i did want to address the mandate issue because the idea that the district court on the on bank decision that's what the court was that was the mandate that the district court by the time it went to address that akamai had been reversed by the supreme court and so the district court said the whole basis was because of that change in law had it not been for the extremes of law other words are just reported have been dismissed as well if it really entered summary judgment at that point it's just that i'm going to reinstate what we did before and that's what's on appeal issues because the mandate was very specific addressed induced infringement under the on bank akamai decision which went away so the district court couldn't have addressed that decision and the mandates had no theory it all the supreme court decision gets with place a law back exactly the way it was when summary judgment was entered and nothing else has happened no new evidence has arisen no additional case law has issued nothing that would suggest a lot of the case that the cited by this court in the prior appeals should be changed and given that finding of no direct infringement there can be no finding of indirect q you have three minutes if you need us your honor the precise language of the mandate instructed the district court to determine whether a genuine issue of material fact existed as the performance of all the claimed steps whether by one entity or several moreover the district court did not analyze whether move had knowledge of real's patent and induced users to perform the claimed steps that move did not itself perform the record is silent as to any information that the district court decided on either of those things because the district court decided that it didn't have to what it said was that this was the federal circuit mandate had been totally undermined and it said accordingly we now reinstate our grant of summary judgment of non infringement in favor of moot the district court procedurally demanded of the parties only a status report and when local council inquired as to whether additional argument would be permitted or evidence on those questions relevance of the mandate the district court responded in the negative let me now address miss mcgrath argument there is in the record your honor a declaration of a m was entered in the record in response to direct statements by real that those factors direction and control mastermind and so forth did exist in the district or real argued both theories both that all steps were performed and that there was some form of contractual relationship and therefore direction and control but the district court only addressed the question whether all steps had been performed as this court recognized in the second appeal and finally the holding of the midst of the district court is only that move did not perform all of the steps it did not address the control issue that was the subject of the mandate and we believe that that is a sufficient reason