of california court's decision granting yahoo's mission for summary judgment of non infringement with respect to augment six three six and six nine one hatin on me also appeals to district court finding that claims  jumping in on me like this but time as you know is fleeting in these in these situations and i can only speak myself the one issue i would like you this you could to look at is the question of whether the district court erred in granting summary judgment of no deal we infringed with respect to the confederate limitation and i realize that there's a difference of opinion here as to the construction of that limitation but assume for the moment reserving your objection to the construction but assume for the moment that the the district court or the magistrate was the district court did correctly construe that limitation in the record supports your position that there is a genuine issue of material fact as to no d o a infringement i'm not talking about any issue here of  vitiated just a straight infringement issue what do you point to i mean i know there's two items here we've got the the the deposition of the yahoo expert and then the declaration of your expert in the records you could march through that and show me where the there's a genuine issue as to the way proms well there is no dispute here that the ad we actually know exactly how it works but we're hoping you'll do is walk actually through the evidence and show us with precision where creates the questions that dr grant young is expert dr gray admitted during his deposition page as the web page is being and we don't want you to explain to us why you think it's the same way we want you to show us where it's expertise concrete evidence that it operates in the same way at page a six nine nine nine three you know his expert knowledge that yes it would be the same it would be the same way well would it seems that the key part here is if if there's enough there for you the key part would be six nine million three starting around line sixteen or seventeen going through i don't know i guess six nine nine four line five or six c explaining why that's the case it seems sort of a conclusory statement how does that explain where we're where do we have an explanation either here or in the of the other the your expert  this testimony is the key that i'm sorry the declaration i think where you want to you need to find something is a seven sixty through seventy sixty to seventy sixty one  seven sixty seventy sixty one at paragraph twenty one that there's no substantial difference between using a first code module and got it in a web page which is inline code versus using says there is no substantial functional difference and i think you know the three prong function way result and we're just trying to get you to hone in on  consortium there's no distinction in behavior in other words the way that these things work between code that's written entirely in line entirely written into the h t m l code of the web page prior to the beginning of the execution and a situation where there is a tag that is written in line into the h t m l code of the web page we have that seventy one ninety and most important i guess paragraph eighteen point one but in the you're correctly quoting what he says there is over has explained why this is the same way lee says they did it says it makes no distinction but why is there no distinction because the result of the same in that those inventions ration the co and retrieve smart from the server that smart pad is then copied and pasted in line into the h t m l code of the web page as a web page is being downloaded which then issue the command to retrieve the second code module so you would say there is a difference in the way that the that the two pairs for true there's no substantial difference because but there is a difference but then the question line paragraph twenty through twenty two or twenty three he's explaining that there is no substantial difference in the function and the results that are sixty paragraph eighteen that for example the world wide web consortium makes no distinction in behavior or execution between javascript code written in line and  try using the script tag containing the s r c attribute this as i we have exhausted all your time almost all your rebuttal time and i really would like to hear you address services so if you don't mind  display of an advertisement doesn't indicate whether or not the downloaded web pages permitted access to the requested function and why the i understand that's your argument as to why you think there's a question that even under the district court's construction i perhaps that your system is incapable of reading it i mean i get all these messages a click on something you don't have the right version of adobe flash to read this or whatever that's not is a lack of permission that's not saying i don't have the right to do something to do with permission i get that not if it is a no it is an indication that your system lacks permission to access that particular wants and work my system like permission it's actually telling me if i want to get it just download this other thing i capability question not the permission question it's permission question in the same analogous situation as is given in the patent in that a display of an advertisement  completely consistent with the specifications both in the service response but unfortunately that's not what i'm looking at today what i'm looking at is is the blanket consistent with the district court struction which is not appealed so why is a blank as equivalent to permission it's a quibble and to an indication of permission in that if that is provided that is a reasonable jury could find that to be an indicator indication that your system is permitted access and if the ad server does himes to provide an ad that is an indication that your system is not permitted access to the add in in the same way that the patent describes it namely a service response is either provided or not provided that the jury could find that that is an indication of a grant or denial of permission just to the same extent as somebody walking in huntsville part you know that is an indication that you're permitted to walk in central park but there's no affirmative indication provided to the user that art the words were we think of permission in our daily discourse we think you know you don't have permission to do it i'm not going to let you do it you can't do it you don't have a ticket whatever or you're not allowed to do that is that what we're talks about access to the requested function with reference to the compatibility of the system to you to function that way for example if your system lacked the capability to display flash advertisements and your permission to to flash advertisement would be designed so it's a compatibility issue as well as the materials that we were discussing with ms albert namely the testimony at deposition of the yahoo expert the declaration of the  would you put all that together when i say all of that i'm talking about the sources that we were discussing with ms albert why is there not of enough there beyond conclusory statements expert statement it's hard to find a more conclusory statement than that in paragraph twenty two and seven zero six one which is the only one directly addressed this way your honor and if i may read it yahoo's ad serving systems perform the same function in substantial the same way to receive substantially the same result i agree with you on that but what about say like paragraph eighteen on seventy sixty paragraph eighteen or on or at best talks about result or function it does not talk about  way and it refers to this world wide web document which when one looks at it actually supports the notion that it's a different way so i paid seven one nine zero to seven one nine to th command to retrieve the second code module said second code module having you being download and having the function and that is diametrically opposed to choose products where the accused first code module is retrieves something else it retrieves an intermediary code that doesn't have the function it has to be retrieved and downloaded from somewhere else and then once it's executed it goes and tries to get the request not in any way the same way and there's nothing like what this court case on requires texas interest in such instruments in fact you know upholding says you claim after a jury trial thing that very similar testimony by experts in these in the declarations here which just sort of stating without any particulary why you would say this is substantially the same way is enough for dio me in on me just doesn't have enough to take this to he was asked to assume in answering the question that the first and intermediary code wear one and they read this thing and he said well if you assume that hypothetically you know then then it would the magic words are used correctly there or maybe they are absolute it says that there's a there's no substantial functional difference between using a first code module embedded in a web page under what the court district court's interpretation includes inline which i don't think it is ok it's just a conclusory statement of the ultimate of the ultimate conclusion it doesn't explain with any particular any why some are still in the art would see it to be substantially the same and not different in fact that the world wide web economy between those two things and although i know it just show you ask my company or not to talk about the machine but here it would go counted in just a court with absolutely correct that it would be reading out in a declaration or deposition that in your view would have gotten would have got all of me over the fact issue on the way point in other words then ask you if they're up for or your expert had said what what would have been enough in your view it's hard to to say what would be enough to get to a jury just so but it's very the fact issue here tell me way back to shoot what this court case law requires is sufficient particularities that those are words from texas instruments to explain how it is that someone is going the art would sink that they are substantially the same function substantially the same way substantially the same result and these four sentences in this declaration can't possibly be enough particulary in fact this is very similar to the testimony that the expert gave in in in texas instruments  extent today on whether there was enough evidence to get to a jury on the weight problem with vo we with respect to the embedded with the tape in the district court didn't go that place at all does that make any difference it doesn't your honor her could i have your pen and you hand it to me and i really do assume you're not giving you permission to take the pen from your hands well i think that's different and here we have a computer which is that which is which is required to see two things there's two parts  web page is permitted to have access required rest requested function and if yes how the function should be present on the web page and i was simply saying that to collapse the provision of the ad into the first part would would the would collapse all that's required is an indication of permission and indication of permission which assumes that there have to be some sort of check how else can you indicate permission if there hasn't been a check to whether or not your permit i hand you my pen when you ask for it but here we're talking about a computer who in the passive is checking to see if there is permission and then then providing the service read that and the the the claims here that you're reading here the service response indicating about permission so i do think that the requirement of permission does entail some sort of permission check it does because other west how can you read from the fact that a response is returned that there is permission so to go there hypothetical the fact that people permitted to have the function which is what the pattern calls for the permission to the extent that it exists in the function doesn't seem to have anything to do with what i guess i would think of this traditional notion of submission i mean when i read this patents i don't see a requirements along the lines of the way you want me to interpret the word permission will but for permission the meaning of permission is that you you know that you either are granted or denied that is present indication the service response that the web page requesting the function is permitted to have the function and the accused systems don't care about whether or not the requesting web page is is software compatibility wise why isn't yahoo system indicating permissions when it determines whether it has an ad for you or not because that's not permission essence of the patent permission in the sense of the patent but please don't require permission t require indication of permission but there is no indication of permission by yahoo's return or non return of an ad if i can point to the evidence exactly what this allows for it if your service response it can be constituted something was a denial but not signing something after having done a check as to whether or not you're permitted that web page that's requesting the sort function to get from it required by these three so that's your problem these screens are limited to that check performed what limit only permission and why can't permission see i've done that for you or i don't have an s p f actually why not let the jury figure that out things off of us and i think that when you read is permitted an indication that the website is every time it does that for every step at least once writing the rest goes to damages from that sounds about right yes but here there is no evidence all if yahoo ever in any instance is issuing a service response and we think there's a problem on embedded and there's the question don't do it every since but there are no facts in the record that the yahoo accused systems care anything about permission ever any time in the so that the most that that they can point to on that is their conclusory testimony of their expert again which isn't enough but the act the actual facts on the record to the problem for the public with permission language is that there are the specific criteria articulated anywhere by which permission up be granted or denied and this pattern seems to be directed entirely to tailoring ads or tailoring media for individuals and so i'm trying to figure out what do they mean by permission to get them stuff that could be that ability could it be some criteria like you're not over the age of eighteen therefore i'm not going to send you a cigarette or whatever i mean is it i'm trying to figure out what is the criteria by which permission is to be measured and in the context of this patent i guess the sense i have is do we have an error that is appropriately tailored to you is an indication in this pattern of what they mean by permission and less what i'm trying to understand what i don't think that would be the right understanding of this patent which is really about streaming media and weight in column seven you can see what they care about is their issue for the jury no your honor if this is a this is a question well the clue in the claims which we think is correct and we think it requires that the service response indicate that the requesting website is permitted to have access to the function and that makes sense in the context of this patent because what they were talking about was streaming media that was going to appear you know often in the media metaphor on a website and they might care about what kind of website it is that's of the objectionable content check that they're talking about and so i don't think that the patents talking about like we're talking about judge more what our ads do which is just see they just we just look to see whether or not we have the kind of an ad that fits the criteria you want to do we have when we do we send and it's been interpreted in interpreted as to say it one must first show indication of whether the requesting website is permitted to have the function and then to how that function should appear and in the context of claims twelve serving up an ad or not serving up an ad does not indicate anything about permission or denial of permission and to allow a jury to conclude that would be inconsistent with the way the claim was construed and the claim construction has not been challenged that's not  correct that the district court took the factor will issue away from the jury as to whether or not the provision or non provisional of an ad is an indication of whether the downloaded web pages permitted access to the requested function so and the jury could readily conclude based upon the examples of the preferred environments provided in the specification that the accused young networks function in exactly the same because they never deny anybody as long as you know they've got it for you they want you to have it so there is no aspect of denial there is only tailoring an ad to someone but that is as we do with permission to so supervising it or not providing it isn't an indication of permission but the problem is that the jury could have found as a matter of fact that the provision or non provision of the ad was permission in the same way that the patent talks about the value waiting for mission namely is there an ad that's compatible with the system is a website permitted to have access to this particular ad is the user are the users preferences such that this particular ad is permitted for that user for example if the user has some sort of adult content restriction  preference then the ad server will not serve an adult content add to that particular and user so you're basically saying if i understand it right that to the bill of the equivalent of permission correct compatibility user preferences that's what's discussed in the patent are the same criteria that are evaluated by the yahoo network in determining whether or not to serve an ad  and similarly the district court took from the jury the factual issue as to whether or not the evidence was such that the jury could have found that the way that yahoo that when you have the embedded ad tags such as are used by the yahoo networks there's no dispute here that the yahoo systems  embed the ad tag in the h t m l code of the web page prior to the download as ad tags call a second portion of code and retrieve that and then that code is written in line in the in the h t m l code of the web page and so there's no distinction between that situation it's going to have the same lines of code as in a situation where that code was entirely written in line into the a p amount of the web page prior to the download so as it relates to the functions required by the claim which is namely that the first code module be able to automatically execute as the web page is downloaded most situations function exactly the same way and in both situations the code that's written into the h t m l of the web page includes the command to retrieve the second code module from the server you know but i guess what you'd be introduced to the budget drain is a question for specific testily i guess what you would look to is paragraph whether it's enough or not enough on this point would seem to be in the declaration of mr the  then we have is that is that section of seven seventy fifty eight paragraph seven through seventy sixty paragraph fourteen that's where we have to find it if it's there that paragraph seven is talking about the service response it's not really  i mean it's talking about the parsing procedure at the beginning of that paragraph but it was where in this do we do we get over the fact issue of corman and look at paragraph and then that causes additional to be returned to the browser that's described in paragraph eleven and not is then written in lying into the a t l code of web page and then that second functionality described at paragraph ten and eleven a jury could reasonably conclude that that is not substantially different from writing that entire portion as if you wrote the tag and the smart code entirely in line in the a t l code of the web page prior to the initiation of the download but as imposed circumstances the browser parses that code on the line by line basis and executes it as it encounters it and in both situations that code module is automatically executed as web pages downloaded and in those situations the end result is that the command