cannot be reconciled with any single ordinary meaning of the three claim terms relied upon by their expert so we're we're in an instance here where on post trial motions the judge is obligated to apply the facts of the facts the jury's heard against the verdict but also apply it to the correct law and that would include a claim construction the construction of the claims is the law of the case  facts must be applied to go in this instance it isn't possible to reconcile a finding of an frenchman and invalidity with any single claim constructed matter if you you can see that there's substantial evidence to support the verdict from one of the other i mean if you say you lose either way don't you know you we don't because you can't do it as to vote so therefore you have an error but what if we do it just  the those that would be stay contracting engineering which says that you must apply the same construction to both of volatility and infringement so you're right if you apply one construction you can fundamental tenet of claim construction which you must apply the same construction to both of invalidity and infringement and that we don't know what the jury  is what is any conceivable construction you can come up with come up with any conceivable construction that could exist as to these three terms that could sustain both a finding of invalidity and infringement and there  happened here at the trial of a why while there was no objection is if you have two elements when you're doing this type of a valuation you have the construction and then you have whether the facts support the construction in connection with the the reasonable for me to be saying this in the interview you're absolutely right your honor and that's why mcafee could have come forward with a construction that would have support supported it but what they did instead is they said the only way you can sustain a verdict of infringement and validity here is to really construed the only term that was construed vulnerability they say yes the verdict of invalidity and infringement discrepancies are not vulnerabilities and mcafee in this brief comes up that argues well that's a false distinction all discrepancies must be vulnerabilities therefore we went back and they're right if all discrepanc vulnerabilities then you can rationalize a single construction for end infringement and invalid but they didn't appeal to the vulnerability construction or the vulnerability construction is an exploitable weakness and not all discrepancies are vulnerabilities file permissions file errors a discrepancy could actually make a file more secure if it's more secure it's a discrepancy but no one would contend that so vulnerability so in this instance this is not an instance where we sustain a verdict on invalidity so we don't need to deal with issues of infringement because you can't infringe an invalid patent you have a different issue here you have the same legal principle that is up can this verdict be sustained by a single construction ordinar construction of these three terms and it cannot so simply saying you have a construction that supports invalidity does not answer the question of when the question is before this court is did the district court err in not first in not applying the facts of the case to a single construction of the three terms and it's i guess what you are saying sounds so strange to me because i get a lot of cases and there are problems that arise when everybody says ordinary meaning and then you get folk to my from a questions about the court so now you're suggesting a scenario whereby you agree ordinary meaning and then at the end of the day your analysis really comes down to somebody picking the correct ordinary meaning which is something you could assign at the outset so that it the judge in order to evaluate is going to have some is going to figure out what the ordinary meaning it because now you say we got a we've got a plate full of potential ordinary meanings and we're trying to pick one of those and see if the infringement a little deeper into conflict within that is not a strange way to proceed and that's that's not the way i'm pursuing your honor what with the way our proceeded in this case was we had  had ordinary new constructions their expert offered these three terms by their ordinary meaning would not support infringement because all elements were practiced so i said taking your ordinary meeting their expert let's look at in let's look at them validity and the facts would not support and validity so we're not asking for a particular construction or asking does the facts of this case support any construction and it doesn't and i agree with your are you have a number of cases the old two issues were were parties are arguing well the ordinary meeting should have been construed and you didn't object as to ordinary feeling so there was a dispute and you should of course all that dispute before that's not where we're at this case could have very very easily been resolved or put it in a very different procedural posture where mcafee simply had to come up with any ordinary meeting construction the district court simply had to come up with any ordinary meeting construction of the dispute the district court said here's your marrying meaning construction here's how the facts support that ordinary meeting i could not come before you now and entire brief depends on all discrepancies being vulnerabilities and a potential vulnerability being a vulnerability and the district court rejected that construction a district court has to be an exploitive all weakness it is undisputed that the prior art to tax only discrepancies and lacks the logic to detect vulnerabilities it sort of you have an interest in or argument when you should have it out let me respond to that that what we're talking about here is argument of facts as opposed to misapplying the construction if we're going to take the position i'd never during the trial you should know you sh single patent case both when the facts are coming in and closing arguments coming into the parties believe the facts they're presenting to support their construction of the support are consistent with proving or disproving infringement  invalid and they don't that's why we have disputes so what we're arguing here is we had competing facts our position was the facts don't support an ordinary meaning construction here and we dealt with it as we are supposed to which is on cross examination of their expert showing that that while he says this supports infringement it doesn't support in validity and then with respect to my closing argument i said the same thing mr mueller says that these facts would support this construction but i'm telling you jury it doesn't support that construction then you get to the judge it post trial motions and it's the simple principle that i just need to emphasize again you must apply the same construction to the full lity and infringement so the fact that the judge can find info in validity of applying one construction doesn't end the story because that construction would not support the jury's verdict for infringement and violates the tenet that you must apply the same hters this is the appeal of the post trial decision of a jury verdict the jury had thought was presented with evidence of three anticipatory references as well as evidence of obviousness and was presented with three independent supporting the liberty we don't have to worry about what this laptop's theory about reconciling the tale should i make two points in response to that the first is this court in the supreme court has set forth a set of rules for how plain construction is supposed to occur there can be a marked man hearing or as in this case claim construction can be litigated as part of the summary judgment process there can be in certain cases clay construction issues that arise during the course of the trial if they're raised by the hearties our brief the facts are entirely consistent there's no inconsistency between the jury's not infringement verdict and the invalidity verdict we have not attempted to reconstruct the claims post hoc or reverse engineer the jury's decision the point we've made in brief is that there's nothing in the factual record that demonstrates that as a matter of fact there was an inconsistency sufficient to grant a new trial was no play construction request on any of the three terms on which the plaintiff now lives before you resolution of the inconsistency if possible and that just never happened it's what we have here is an attempt to reverse engineer the jury verdict in to impose on district court judges in chief judge process goes to your question to impose on district court judges  before the jury returned a verdict and no objection was made to the verdict for the time it was rendered moreover we think the evidence was entirely consistent there's no intransigence on the merits but what percentage of perspective the way that the case are supposed to unfold is to raise pla is that i mean that was my first question if we were to agreeing with much of what he said is and is that there's no jury that could have consistent consistently applying the same claim construction weeks this is these two verdict evidence to support the invalidity verdict it's a positive that's the mobile media case that's essential there's no need to reach infringement for an invalid patent it's invalid and that court how you're this court i should say i'm involved send you a mobile verdict and the airport challenges the verdict on that basis those cases don't deal with that the scenario right you are they wouldn't deal with that if that had been preserved as the argument below if there had been a preserved argument but there is nutrisystem see in the verdict to have an objection at that time there have been claim construction issues raised before the verdict you may be in a different place but one of fact to pee off the cli say this rather there certainly was a procedural failing and not objecting at the time jury verdict in addition there was a procedural failing and not raising any of these claim construction issues until after the verdict was returned so we have no testimony from folks who were involved with the prior products including a director of a vice president strategic planning at a company that developed one of the products product manager for another product and they testified on the stand to the jury those products offered functionality in response to that if occasion of vulnerabilities in contrast if used product doesn't do that it's a suffer updating program for consumers it allows you to update your programs yeah so the program will not notify users of the vulnerability of theirs not do misfortunate five second thing is if there is enough data available only use always provides the update even if there's no vulnerability in your current version so there's real relationship between the identification of vulnerabilities in the provision of an update that's the first issue and we see that on that issue there's a difference a categorical difference between each use product in the prior are and therefore there's no inconsistency in the jury's verdict second true examples of the pirate programs allowed users to fix what are called commission errors or too many people being given permission to certain programs per programs also allows you to fix ownership issues which is another problem that can arise with giving improper ownership over computer programs that's multiple for various utility functions in contrast the queues product is one thing that allows you to update your software but again there's differences between the hughes products in the one pathnames detailed information that information technology professionals would understand because those programs were designed for i t professionals use product doesn't do that it provides generalized risk ratings and no identification of particular vulnerability the point is you understood each of these three issues the factual evidence is entirely consistent or at the bare minimum the jury was entitled to conclude it was and so we have no construction being requested on the street terms any of them we have the application of those terms to fact that didn't before the jury we have the jury being presented with first hand witness testimony yes the prior are firsthand witness testimony as to  accused products expert testimony as to both the jury was well within their discretion to food to patmos both invalid and not infringed there's no one consistency in any of these three issues and moreover there's all the procedural problems that vulnerabilities on the other that's what they're arguing on the appendix fourteen fifty four mr mueller made that same argument to the district court that there's no distinction between a discrepancy in a vulnerability and the course absolutely there can be so ever all the analysis he just gave you on consistency and coming from structure of vulnerability and then target judgement clever towards your argument about the claims need to be determined my way they don't need to be determined my way they need to be determined anyway and mr mueller made important concession i'm not he said i'm not offering any construction of these three terms i'm just saying there's facts that support it we have the fundamental problem that you need to have the construction that's what that's what state contract when you look at a post trial motion you must first define what the construction you're applying and show the facts supported that hasn't happened here and i'll finally ask the courts to look at which i think are the two most important cases which are hewlett packard broad we're not asking for a construction what we're asking to do as it happened in hewlett packard is you apply the facts to the construction do the facts support a construction this case is unique because because mcafee could come up with any imaginable type of construction and if it was consistent would find they can't without reconsidering vulnerability thank you thank both sides of the case