recognized a relatively narrow exception to the settled rule of how one proves literal infringement on a patent and held at the district court construes the claims and fined for each of the claims including any device the practices of standard and this can decisions of the district court the context is completely consistent with the language of fujitsu's holding there was what the district court described as a st summary judgment ruling in which it invited the plaintiffs  facts except for the language used in the standards and the patent the only dispute was how the pertinent language should be interpreted in other words it was a claim construction exercise and the supreme court in tab of said even  supreme claim construction all subsidiary issues or underlying issues of fact it's still exclusively for the court it's not for the jury room to follow up on that or the language until you get to infringement what twelve steps beyond that and tries to look at the actual evidence then there was not sufficient evidence of literal infringement with respect to the st patent there is a limitation in the twenty three dollars knives and that's not present in the that i was just discussing that it was it was t c l's primary argument and really almost its sole argument that this particular requirement in the claim was not present in the standard and was not practice in the source code  but the problem is that the claim originally had just a single set of checks and this nd conditional check the final requirement in the quaintest to determine whether to conditions but you didn't bring up prosecution history issues at the time construction stage did you not because it was our position your honor that this is the express language of the claim we're not imposing an interpretation on the express element of the claim and the plain language of the claim does not read on the acute product well if you're needing to rely on prosecution history to understand the claim that is qui must mean something excusing and so we're not asking the the court or the jury and certainly not the jury to interpret the claim we're saying apply the language of the claim and if you to prove the nd check and that your atom guessed that you're asking us kappa to conclude that no reasonable jury could reach the conclusion that that that that limitation was not essential to the client well as a matter of law the limitation is essential to the claim we're asking this court to greet with us that there was no evidence that the limitation actually was found in the accused products because there was not but as a matter  the court agrees with that too just too didn't apply here because the court never made the required threshold determination as a matter of claim construction that the patents were necessary to implement the standard then if you sequences and dr min ip project expert never ever took two sequences of code and show that they were orthogonal to each other she didn't even try to do that the only source code identified discuss or explain the source code it just talks about the numbers in the comment and says well that the code does exactly what the comments say but here the key testimony was from the qualcomm engineers themselves and the qualcomm engineer who actually wrote this code who is responsible for testifying he said that the code doesn't do what the comments say that they can't be mapped to one another but there is no correspondence between them twelve lines of testimony on redirect when dr mann agrees with his counsel that you could substitute certain values in the code to match up with a one and a negative one but he operability opinion that assertion depends upon ip bridge having found the correct code or found the only cold involved in this process of reducing interference between these two that's not what's required by the claim and it's not what was identified by ip bridge as proof of infringement whether there is some way to achieve the same function by mapping this code to some other code is a question of equivalence which wasn't ever even a furtive in this case so unless there are further questions on the infringement if you let me just discuss briefly the ongoing royalty issues because infringement for sufficient evidence it literally prints one of these two patents then the ongoing loyalty award for non accused products must must be eliminated it must be reversed because that's boom for the moment that we is that it should not cover not accused products and and this may be excuse my ignorance if i don't completely understand but the language the court used was any t l we in fact fact know that they're in big for the reasons that i just discussed with with respect to the fifty three a patent that qualcomm engineers didn't paste the code didn't base their how their processors work on the standard they didn't read the standard when they coded it didn't design it so the factor didn't really answer my question i mean the standard is was it is forget about whether they read it work when they coded is it possible to connect to an l t e network without practicing the standard well for the reasons that i just was describing with with respect to the fifty three a patent it in apparently  to invest in the vast majority of the standard is practiced by the buy the products they are l t e compliant in almost every respect but the proof here did not show the elements of the newly accused product against the asserted claim and these are accused products that in large part don't even exist so there is no analysis of the differences between any of these potential accused product employee they could have different source code different base and processors different manufacturers but they're already subject to the court ongoing wardle to use and well would it would it if it would have is there a difference between saying any t c l product capable of connect misunderstand your next to the extent that one accepts the premise that the district court did in its post trials order that every product that connects to an l t e network infringes these and before i go further into my rebuttal time we if these products are in fact necessary as the district court concluded after the jury's verdict to connect to l t e networks then there would be no cultural differences between them and other l t e compliant products they would they would all be the same in that respect ok the council may in that case there was precisely the type of consideration that we had here by the jury of standards based evidence and evidence of compliance and i would direct the court to the cited seven   and the court said that this is precisely the type of factual dispute that the jury should be resolving and that's it at one thousand two hundred and twenty one dollars that's what happened here the jury was presented with substantial evidence in the form of of expert testimony from dr men as to step on to testify how each claim element was present in the standard walkthrough the standard in great detail it showed the jury the drafting instructions of the standard which say when the standard uses these words like is and shout that's mandatory that means you must do these things they're not optional and he testified expressed that there's no way to implement the stand without practicing each of these plans and that all of that policy is that case acknowledges to have if you have identically operating products that practice a mandatory portion of a standard absolutely you should be able to use the standard to show infringement that l t e compliant and they have compliance major cities they advertise to their customers that these are l t e devices its own expert never addressed the question of compliance and no opinion again that their team three hundred and that's important because dr wicker it made it open deposition in a trial that that this is one way that showing that claims cover mandatory functionality is standard in the products comply but that's one way to show infringement he said that in appendix three t judgment details position was you can't look at the standard the only thing that matters is source code to set aside fujitsu now it's it's more nuanced it's if you if you invoke fujitsu you have to have the court as part of playing construction consider a mountain of extreme togetherness and somehow construe the claims to cover the standard but that didn't happen if it's true as the analytic notice earlier that was a descriptive statement of that case reflective of its procedural posture wasn't a here i'd like to but to answer your question about whether connection what the evidence in the record about the connection in terms of the ongoing royalty is and there are there are several different references states dr mann also testified at appendix thirteen thousand one hundred and sixty connection to the network you must use the technology that you can't connect without being compliant he also testified at appendix code that was spread using anything other than the code in the table the base station it knows what it needs to receive it needs to receive orthogonal sequences and sequences are the ones that are in the standard that the standard that way at appendix one hundred and seventy six later when p c l raised that same organ expert dr wicker they actually removed the people that are they had presented three sequences one of which was all zero that disappeared from dr workers test when he only talked about it once and we never saw that piece again because dr men had shown that if if these devices were doing what they are now saying they do a rd of the time they never work and that's that's obviously not what we see so what we know from the standard is you must do this spreading operation this way standard dictates precisely how that is the products are indisputably compliant with the lp standard dr  two different ways to say the same thing is your answer that question would be yes absolutely you are yes that here for this technology for these standards and for this is evidence of compliance connection to the l t e network shows  to just not cover different to the same they may be different suppliers there may be different firmware that that is used on these devices but they must practice this technology this way the standard tells them that and they do that and their compliant so it  really is that they are identical not just not go to different in this  to direct your attention to page seven of the read brief where the claim language is laid out and we've annotated there where the checks are in the claims and what you'll see when you look at those is that they are the same and there are two elements here one of which the st one is a circumstance where if conditions are such that say the channel is bad or it's low quality or you only have a small amount of channel with which to send data the device should transmit just this little bit of information about the channel quality to send only a channel quality report or c q i report but if the channel better or it has more space it can send that c q i report along with data and that's the element that was added during prosecution after an interview with examiner this was something that wasn't called out in the prior record it was added it changed the scope of the claim for sure but what you see is that the checks that are used to determine whether i'm in this c q why only mode transmit i'm going to send transmission one or i'm in the mode of i'm go at appendix thirteen thousand one hundred and sixty five but those st two checks are the same the result is absolutely different but the check is the same and it's also true of the rd where the device is looking at the number of resource blocks that are allocated to it is it less than the threshold there is a greater than the threshold both sides of that point so absolutely there are three checks there are always three checks and the claims those are the checks the doctor men testified about the amendment they claimed didn't add another set of checks again that is substantial evidence here takes away from that fact question away from the jury that there is evidence here deficient evidence to sustain the verdict and in fact i would i would point you to the court's undetermined nation in the context of of ongoing royalty the court evaluated the e we talked about what here there is no difference in fact between connection and no cultural differences between the devices the court evaluated that evidence and determined that there was sufficient proof of a mandatory nature of the and there was evidence that the presented by the defendant that it only provided one kind of feedback response so that was sufficient evidence for the federal circuit and it was from the defendant for if it is indeed mandatory then the device would need to practice that portion and he explained in this is a thirteen thousand three hundred and eight you can't just assume the premise you have to show that those are in fact the case so with respect to dr men i don't believe opposing counsel asked and answered the question that was asked at the outset which is is it true that dr mans analysis with devices wouldn't work if they didn't perform exactly literally in the way claimed in the fifty three there is no explanation of that opinion is just in it's a dixit assertion and we know in that the devices do work they did it they do it in a different way but the source code that is on page forty one the values on the right hand side they're not orthogonal as a matter of mathematics and we single set of checks and what was added by the cement which requires a check to see whether the m c s index is not a determine about check whether the number of resource blocks is not less than  equal to a number and to see whether that trigger is set those are specific cases as described in the past what was suggested is all that was really added was just sending the report transmitting in a periodic c q i report in multiplex mode and that's what the examiner cited when he required this amendment so it has to be no more than just sending through trial and on appeal which is putrid too doesn't apply here because the district court didn't make the threshold determination that as a matter of claim construction the claims cover their reach includes every device that practices standard now why is this such an exacting standard because if if we allow if this occurs then potential defendants and manufacturers not even involved in the case are implicated and i think fujitsu recognized that and that's exactly why it is required for the court to determine rather than for a jury to be led so i'm not sure what it mission is being referenced there professor winter certainly dr winter certainly did say that he didn't analyze essential ality because he was conducting an infringement analysis comparing the claims the accused products i believe he did testify that he wasn't aware of the source code that that happened that didn't match the claim but that's a negative he had not been shown any source code other than the source code that dr mann himself had identified and dr ricker said the source code that ip ridge has identified does not match the claimed requirement with and i have not seen any evidence that it exists other than were storing two values different than the standard i think i heard the tone did you i i