indeed your honor we will attempt to avoid all repetition on the common issues the two cases sure let me ask a question other than the practicing the prior defense issue is there any reason that resolution this case wouldn't resolve i please the court dirk thomas on behalf of content gart contract guard as we've noted has focused its appeal on this case on two very specific issues one that overlaps one that doesn't the overlapping issue is with respect to a claim construction usage right now we focused our appeal here because the errors that occurred in these two issues permeated the entire trial particularly usage rights because it was common and what happened there is the district court construed these you should try to get this is a digital rights management system that is used so that when somebody wants to rent a movie from i tunes in the case of apple they get the movie along with certain rights to you to watch it to play you're arguing about that is to claim construction on usage rights but you don't propose an alternative construction that includes association or its variance either to the district court order this or we did not your honor for a very very specific reason and a very solid reason one that claims don't require effort but what the claims do require the claims that were circuit is that once the move in said the cash an associated with this and saw how was it prejudicial the district court limited you to attach a really good question your honor and here's why it's prejudicial because the with mean the same thing i'm looking at the blue brief and the red brick well we're respectfully your honor they stood up in front of the jury and told the jury that if it was only associated it wasn't attached so if  and when they presented this argument to the jury when they presented the argument that the attachment was different then associated with your honor is that what you're asking me think that you're referring to you say you know are you the jury that is this i see it is not the that during the trial you know but that was part of the claim construction your honor and we had argued that and the district court had ruled in the dawber ruling when it was intitled to amend or change its claim construction it did so and what it did over our jackson was to say that our expert was not allowed to say that the reference id that connects the content to the usage rights associated those two things t corporate clue did our expert from saying there was a reference or an associate why how does that excuse you from making an objection during the jury are human if you think the other side has gone beyond where it should and i'm sorry your honor i'm not being clear my point is that there is not the same scope and can't be the same scope between attached and associated if they stand up in front of the jury and say that one is different than the other i didn't object to that i didn't i think it's true i do think associated is different then attached or treated as attached i think it's broader and that's what we try to present during our claim construction brief so the issue  prejudicial you should have objected to that but your own of the district court told us it wasn't the same and so that would already be that that decision had already been made the district court had told us that our experts or attorneys were not allowed to argue that an association between the usage rights in the content was enough to meet the attached were treated as attached he precluded our expert from saying the word associated so of course at that point what they were able to do by default is to tell our tell the day of jury and get our expert to have to admit in his examination association wasn't enough i wasn't allowed to stand up and say otherwise during his in his daughter ruling the court precluded and restricted us from saying that associated was enough and so the issue had been resolved at that point your honor we believe in correctly but the issue was whether or not our expert could say that an id number that was common between the usage rights  we all know that you cannot attach a digital bit in memory to another digital bit in memory and we're talking about digital files here so what we're saying is that the common in ordinary meaning of attach some some some sort of tying or binding of something together cannot be the appropriate connotation that was intended in the scope of this patent the attached let me ask you why don't those definitions amount to lexicographer they do ok then why should attachment or association being quoted in our construction if it doesn't appear in definitions of you say should not they should not and that's what we told the court during the marking phase your honor we said that there was no need to define a relationship between the usage rights and the content because none was required in the claims or if they claimed did say anything about that they used the word association they certainly didn't use the word attachment what the claim by the way i don't understand you on he'll be arguing that the district and our marketing brief we said that there was and then this is in the order that the market order that's attached where the court recites what each party's positions are we said there was no reason to define a relationship between the usage rights and the content absent some association or some connection already being included in the words of that claim the glossary definition certainly does not require any particular we were precluded from presenting evidence seem a same thing we were precluded from saying that you're out of the court no you're saying they mean the same thing and you are of course and you work permitted to present evidence of one of those we were precluded from saying that an association between the usage rights and the content was sufficient to meet the attached or treat it as attached claimed construction where do you object not use the word attached when we challenge we know now in this court and this is really this breakthrough when we said that the court improperly construed usage rights to require an attached or treated as attached relationship on page five you are at the bottom of this overly narrow construction and right above that we say the parties vigorously dispute is the meaning of usage right to claim construction stage yeah but that's not the same thing you say he ear using the word attachment well what you're saying is that he should have more broadly construed to use the word associate no we said he didn't need to use any word that wasn't already in honor we said there was no you argue that here where do you argue that his use of the word or maybe i'm not mishearing on to what it says right here the district court rejected defendant's permanent attachment limitation and it also rejected content guards argument and instead held that usage rights must be attached or treated as attached the content of this overly narrow construction was error you know but that's not the same thing as saying that he was wrong and using the word attachment what you in the blue grief that you say that the use of the word patch by the district court was wrong but you're saying is that it should have been more prince of definition that mentioned associate as well or it should have been no particular relationship that was necessary to win the usage rights your honor don't necessarily have to have any particular connection to the content it's just to chose wallach noted the glossary definition of usage presenting its arguments under the correct legal standard no you aren't what we were presenting in that argument was the fact that apple recognized it was a disputed factual issue with evidence on the lead just not what you wanted they they they argued that there was that a reasonable jury could find in our favor when they said they were resolving factual disputes your honor presumably that's what we believe that you know in a yellow memory at thirty eight you say are you are apple argues that apple gamesmanship could not have affected content card substantial right content guard substantial rights i couldn't find where apple referred to its arguments as gamesmanship where was that apple's gamesmanship your on it with respect to how it was alternatively arguing that's what we've met i believe which i don't think we were saying gamesmanship was the word that apple used second and apple argues that apple's gamesmanship could not have affected content guards substantial r you're saying they argued that there gamesmanship it's something where did they argue games we are what we think that their presentation of a argument that there was a material factual dispute that could have gone either way that on which the jury could have well certainly we weren't trying to say that your honor that's not what we were trying to get you what we were trying to get to is we thought it was inconsistent for apple to say to the district court the jury had evidence that could have gone both ways and then to come here and say the evidence could only go one way that that's what we thought was inconsistent your honor and that's what we were trying to urge if i responded to that question on the whole you've responded judge dyke i think it's attachment in there this court's decisions on claim construction recognize a number of ways that a patentee can and can define a term or impose a restriction there is expressed definition there is implicit definition by using the term consistently throughout the spec there is referring to things as a component of the present invention statements to the patent office and even occasionally even occasionally extrinsic statements by the inventor we've got every single one of those here  not even arguing that the use of the word attachment is incorrect or they're well i don't frankly your honor i don't know and i don't even know now whether or so they think associated in attachment mean the same thing i thought i heard both things up that's the argument your honor and i i confess the same kind of confusion that i think you're expressing they never ask the district court to include associated and i think mr times just admitted that they never asked that th to be included and so i think it's clear from the specification that usage rights are to be attached to the content and judge well if you're correct that the glossary definition of usage ri doesn't include attached but but it's also correct the district court didn't use that glossary definition at all we argued that they should use the language for expressing it all that and he didn't the glossary definition of digital workout weber does say that usage rights are attached to digital work the glossary definition of composite digital work says a composite to digital work as you know can be different parts each of which has usage rights attached so whether it's whether it's appended to the usage rights construction or somewhere else and incidentally we requested a construction of digital works that included attached are treated as attaching the judged judge bill strap concluded that that didn't need to be construed after me after he had it you know came up with it usage rights construction so it's in if there's no question that it is a component of this invention ask claimed whether you catch it too whether your actions and intention appended to the digital works construction or usage rights it's crystal clear in the specification now on this association point besides the fact that they never asked for that to be part of the construction but there are a couple of things that i think are clear one is that everybody agreed throughout that usage rights should be construed the same way for all of the claims whether it was the two claims that happen to use the word associated or the or the three other claims of the second and i think this was clear in the brief at least content guard a takes the position that associated and attached are treated as a catch mean the same thing in the context of these claims so usage rights that are attached are treated as attached are usage rights that are associated as the term is used in the patent claims and that's of course the only meaning that matters now the issue with respect to not letting and it wasn't just content guards experts who were precluded nobody's experts were supposed to be throwing around the term associated that arose at the dog bear stage because judge bell strip was concerned that people might be trying to use what language other than his claim construction to convey some broader meaning to the jury after all associated it's you know it's a general word it's not a technical term outside the context of these patents it could have a range of meanings pardon me and so that's what he was trying to to deal with now it's i think it's pretty clear in this court court has construed a claim it's perfectly entitled and in fact probably required to hold the parties to that construction and not allow them to be throwing around other words on construed terms to try to do that whether they're trying to or not that expert can say anything to suggest that you said rights have to be permanently attached to content which was you know of course the construction that we wanted so what he was doing was holding the parties to the claims as he had construed them which is what district judges goodrich about suppose usage rights associated with a movie and the apple system it was the avengers movie that they were using as an example so on cross apple's counsel got up and reminded dr goodrich about the claim construction and dr goodrich agreed and these were his words a mere association is not sufficient and that's right using association in the broad sense now the cross examination was completely appropriate was consistent with the claim construction and there was no objection to the cross examination a trial even after that the very next day counting guard puts expert on the zero five three patent understand dr martin and he several times was throwing around the term associated with usage rights so that basically left apple with no choice but in closing to address the associated issue and basically there was one reference to it it's an appendix page twenty six seventy eight to read their brief you think that the whole closing was about that and it's far from true and there was no objection to that argument and contrary to their assertion that somehow this ruling precluded them from introducing evidence it didn't do anything of the kind their expert was still permitted to you know talk about every feature of the accused devices that he said establish the necessary connection between usage rights and the content i knew he wasn't allowed to use the word censored exactly he was allowed to characterize a restriction  it's a real it's but it's not a restriction i don't think it's a restriction on evidence it's a restriction on characterizing the evidence he was allowed to talk about id numbers memory addresses every feature of the accused products that he said was provided the necessary link between usage rights and content all he was precluded from doing was saying that that was that it was association rather than attach or treat it as a cash and he said it was attached or treated as attached so if you combine that with the fact that they been served by allowing the experts to use the term associated would have been to confuse or mislead the jury to suggest that something other then the attacks were treated as a cash construction was what mattered and judged guilty rep properly precluded that the now there apart from the claim that you said rights claim construction they failed even if that concern even if it cash were treated as a tack shouldn't be there and we think it should obviously they failed to prove infringement for communications integrity and therefore be a repository as defined everything you communicate with in connection with usage rights has to be a repository as well it's undisputed for example that the aka my servers that deliver the content involved with the content their expert admitted they're not repast at or so that along just and that has nothing to do with you should rights being attached or treated as attached not one thing i do want to talk about and mr thomas didn't get into  and that had that's just this one discovery or evidentiary dispute about that the r sync code now not you know and i have to say for a party that claims to be astonished at unconscionably the unconscionable behavior by its adversary undisclosed expert testimony about how the fact that we do we used our sink in some way established behavioral integrity which was what all this was about so they got they got to put in that case they had the code the code is publicly available i issues the argument about producing code had to do with the source code issue here the argument was what's not that they didn't have the code the argument was that we supposedly concealed the fact that this our cinc utility was involved at all and in  the software update process now there are a couple of things about their argument that i do want to point out first of all they say in their reply at page thirty seven that we argued that there was no evidence that certificates did this is the digital certificates are involved in server software upside updates we argued nothing of the kind and we wouldn't have because it doesn't make any difference of whether certificates are involved and then approach forty they may say the claim construction does not require that the digital certificate be included in the software that that i think is is unfathomable the construction of behavioral integrity is quote requiring software to include a digital certificate in order to be installed in a repository and i mean the reason that they they want to get away from that is because our sink has nothing to do with whether digital certificates are included in software are sync it's established as a communications back because i'm still confused about this as i understand that apple was sanctioned for not turning over the source it might wrong but i think i think your view i think i hesitate to say wrong i think there's a little bit of confusion there was an argument about source code and this is at the this order is that appendix page five seventy five you just kill scripts order this is not an arcing up issue this had to do with actually something called correlation information apple produced one hundred eighty million lines of source code all the source code it was supposed to produce content guard complained that well we can't figure this out so apple did two things one is it for it generated and produced correlation information that essentially proper form early enough in the discovery period and for that reason he granted their motion granted all the relief they requested which was at apple's expert dr wellesley correlation commission ultimately produced yes it was and and and the and what dr that dr kelly dr kelly could it be the motion was to strike certain paragraphs from his report and preclude him from testifying about that subject matter that was done he didn't testify about that subject matter then they tried to raise the issue at trial and judge bill's rep said well you asked me for relief i gave you relief nothing's changed and so he denied that request to some small relieve to the request of the wrong it's not even clear to me what additional relief they were requesting i think they were trying to preclude other witnesses fact witnesses from testifying about how the apple system works because that's somehow in their mind at least overlapped with what dr kelly had print and precluded from testifying about but judge bill spratt basically said well you didn't ask me for that i gave you what you wanted him so what you know basically go away we're done with this issue now i do want to return just very very brief left on the  is the standard and so to suggest that that's somehow a waiver or an agreement that the reasonable jury could find for them is is kind of baffling there the last thing i want to say very quickly and they are sync issue they claim that that our ellen ward our engineer somehow lied about our cinc being involved in the software updates i think it's important when you look at their brief several places in both the opening brief and the reply brief they called us testimony saying it was  updates were installed locally which i put in quotes which he said but then they say i keep by hand which he most assuredly did not say and that's this this they have this notion that local installation means manually basically an engineer is sitting at each machine putting a of the claim construction briefing where we said that an interpretation that requires anything more than a reference in the usage rights file and association to the content is incorrect where do you say that in the a for all the reasons that the court christian construe usage rights as indications that are associated with and that indicate a manner in which the document may be use or distribute distribute it as well as any conditions on which use or distribution is relationship between the usage rights and the content that was there and we pointed out to sure that you said that but other than that it's a passing reference in the conclusion you can't point to any place where you did well i'd honestly on i'd have