district court rejected the arguments that adobe advanced in its pretty discovery motion for summary judgment and no infringement and instead raised an issue for the first time at the hearing with no prior notice those only as a question to the parties that it was considering having the parties brief and so i understand you appreciate we've read the transcript so at the end certainly that the court observes that neither side feels the need to for the brief this issue that's true you had an opportunity you not be quick to discord i mean your brief you say adobe had an opportunity and it didn't ask for everything well i don't i don't see in the transcript where the opportunity presented to it was any different any more than the opportunity present for additional we distribute party could have reviewed the issue rule fifty six states that if the court is considering suicide to grant of certain grant a summary judgment usually the proper procedure is to invite the motion from the party who would benefit from that here they invited the motion from adobe adobe declined the opportunity to brief it at that time there's no pending motion from adobe the court didn't indicate that it was moving on its own we have been precluded from the discovery order from taking discovery on any issue that was not raised by a moving on its own merit and that there was nothing for me to brief there was no pending claim construction that the core i propose that the hearing that word krieg system level never came up at the hearing so i would have been briefing against myself i suppose there's really nothing pending hearing on that motion when that motion yes an issue not a not brief but don't be an issue that we were precluded from taking the stairs or this was an argument she felt was compelling that she didn't find in your in your brief that she actually that it was important and ask for the briefing yes in the moving party that would have benefited from that decline the invitation so again i don't there was no pending motion under rule fifty six all benefits on notice all supposed to be taken in the favor of the nonmoving part of the moving party declined to brief that issue so we deem that to be not an issue that was they deemed to be sufficient to be grounds for a grant of summary judgment again we couldn't have taken discovery on that issue there was no discovery was express not clear that the district court is thinking about doing this to us even with out ocean so that your explanation of this morning  i can say exactly what happened just a let me hear from tech said briefly so i know he has already declined the invitation and i said now i don't think the reason why i do is not arguing it is i don't think there's any reasonable arguments he made the ten again this is not something explicitly raise let me hear your quick response so i said the reason i didn't argue with the reason they didn't argue that it's a really bad argument right ok that's terrible argument right and then again she says the thirty one thirty seventh you don't think there's any briefing you did i don't there's a reason why don't we didn't argue this and adobe actually stated in their argument the construction that we agreed with adobe said selecting a label is selecting the paper of label that i want to apply or a particular label and we agreed with that so again i didn't at the time there was no dispute they didn't say it's like being in print preexisting label they actually said a construction that we would have agreed with the court went on its own and then picked a construction that nobody talked about at the hearing this is then what do we left with in this case you've had there are still some real judgment motions by the other side that are pending that she has not yet ruled she decided to on this she didn't rule on the others right there's that they have they lost on that one right the multi level security argument they also lost on that on the court that that we demonstrated that the product does do two layers of encryption and does the multi level security so i think the court reserved on the object oriented team manager issue and i don't believe that there is an expressed decision on that and there are still matters there as a matter still open matters pending correct just so the court decided the court that later on at the hearing plan and then she said no one raised the labeling issue but you know i would have found that there this thing doesn't actually do labeling even though she found that there's a label and she found that the label is inserted into the electoral if you ask me to two very specific record things that confuse me a little that one is just in terms of what you allege to be infringing do you allege that the multilevel security feature is infringed when you label limitation that the court found on it is only found in the method claims there's no dispute about that is in the system claims do not have that limitation the words like being labelled so again you can't there's it would be impossible to find summary judgment against all the it's on that  court said that we waive that right because we said claim one was representative which we said in the beginning of our brief just to demonstrate the technology but throughout our summary judgment opposition every time there was a distinction between them and not the claims we highlighted that in our brief  dispositive and indicated that she gave the parties opportunities to brief the issues that the parties declined and that's in her order at a ninety am but i mean that with knowledge there's a bit of confusion i mean i wasn't standing near you two individuals w so when she starts off she says what it is we're talking about it sounds like she just wants to get the clarification and then we'll see if we move on and but it a nine hundred eighty three nine three four which is two pages past the excerpt that the court is referring to ninety at thirty nine thirty five excuse me we didn't separately argue that term but obviously if the court is amenable to hearing argument on that and we certainly wouldn't object to tech sector being heard on that and the court ruling on that ground rather than the other ground that we had raised that the encryption dictionary is not a label so at that point we in no way declined the district court suggestion that she hear argument on the terms selecting and consider it as a potentially dispositive issue we accepted that as a potential ground for a judgment for adobe and said that we would not object to tax that being heard on that and then the court ruling on that so this was clearly a process where the court was following the usual swiss wanted process of identifying an issue for set plays out its theory on selecting a label it says by selecting the encrypt with password option this selection also establishes the content for the label because a password security handler must retrieve certain information from the encryption dictionary addition it tech sex expert similarly provided his opinion that said thirty seven ninety and tech sect experts said under the proper construction it is my opinion that adobe acrobat selects a label for a p d f object so it's not the case that texaco was faced with a situation where it had not thought through its infringement theory or where it had not been able to present evidence of and i was thinking a little bit about that and i was thinking in particular about the passage in the district court's opinion rejecting doctrine of equivalence and i think the opinions of those it's rates right near the end or something he says their rights are just to do anything about that so you can't do that but how could you expect their expert to say if there is a distinction between selecting from a preexisting menu and and creating the then it used product is an equivalent of that when that theory had not been sufficient detail to meet our the standards of our precedents but you can't fault them for not doing that if the particular issue has not been in the motion and so when you said there was no prejudice how did they have an opportunity to prepare for something before the hearing for something that was never raised until the hearing and she at the beginning of the hearing indicated that she asked the parties and this is it a three nine three three and she identified the issue and asked the parties are you comfortable addressing that right now or do you want time to go back and think about that and so she was giving us the break and come back or obviously at that point to ask for another opportunity to be heard on this issue she said and this is it a nine three four two three three are you comfortable addressing that right now or do you want time to go back and think about it and so we had the opportunity to ask her both sides had the opportunity to ask her to not take up hearing on the issue at all at that time so i'm looking at the transcript and i'm not seeing what you're saying we because when the  you comfortable addressing that right now if you want to go back and think about that seems to me she's just talking to you because you're the only one that response to her question of the time we get to mr oakes you've done your thing and respond dead and the court says all right let me hear mr so it doesn't seem to me i wasn't there but all i see in the transcript is he seems to be directing that question to you you're the only one that ever response second any of the three opportunities where they were given the opportunity to say they wanted to brief this could also have said we want to brief this and we'd like additional oral argument or we'd like to set another an expert declaration on doctrine of approval and or we'd like to separately address the absolutely anything she asked about that had anything to do with the doctrine of equivalent anything any suggestion that she was thinking there were i mean we know she you she didn't asked she didn't ask the kind of reverse what question to mr out and then and her response to that is what you're saying we believe that would she said she acknowledges but you didn't argue that court's opinion it's at a forty to forty one and it basically says you need to have detail you don't have detail and i guess i'm not sure how they could possibly have that detail on an issue that you didn't present to them in the motion well and i think the only the issue there the scope of the waiver by counsel in electing not to ask for additional time to argue this and in declining briefing three times and we would submit that by not separately arguing the operettas claims by not raising frenchman contentions the tech sec itself took the position that the apparatus claims which require this object labeling subsystem that those claims are met by a judge the acrobat quote a device that quote selects a label when it charted it says the accused product has an object labeling subsystem for example adobe acrobat product select a label for an object and so based on that it was our understanding it was not surprising to us that they didn't separately argue that the apparatus claims were not be impacted by the district court's construction of selecting a label and i before your time runs out can i ask you the same question i asked your friend which is we have this case stands so do you agree with what he said or let me repeat my understanding which is if we were to disagree with your position on this question they remain before the disparate court portions of the summary judgment motion with respect to other terms which he has not ruled on yes that's correct and we've raised the two or three alternative arguments that the court has not yet addressed with regard to the construction of selecting the district court construction or simply the plain meaning of construction we've cited a number of dictionaries to the court that indicate that the plain meaning of selection is to pick from a number of  group of objects let me let me ask you about that it does seem to me that it depends on the context and one context in which that feels more wrong than right is the context of selecting a na e when when you say select a name for your pet you're not giving them any way so that's what we're talking about here we're talking about selecting in the name of it in the in the context of dubbing of and i don't understand why in the common sense world in the common sense meaning in that context when need is a set of preexisting choices that you're having to choose them i think when we're going through the they can be names you pick from number of existing names and that would be selected you name it ok or you may decide whether it's really the new name right you may decide to of selecting is picking from a group of existing objects as opposed to creating something new and the tech sector claim construction just doesn't make any sense in the sense of it being selecting because what they say they're selecting is some it's not a plain english meaning of anything it is starting a process that generates some data that gets read into a file that they then call the label and there is no plain meaning of the word selecting that gets you to starting some long process  in addition text sex construction is inconsistent with what it in vance to to the district court in the pretender to case as being the proper construction of selecting for this particular portfolio and this is that this is quoted in clicking a selection or providing identifying information for one of a set of choices so it couple years ago checks i could read that in connection with this particular portfolio and even the technology at issue selecting meant picking from a group of choices on a menu  and they also provided a dictionary from the microsoft computer dictionary that says and this is c n n also included in our brief select in general computer use is to specify an item displayed on a screen by highlighting her otherwise marketing it with the intent of manipulating information in some way so this is a term that as you note has a plain english meaning it's also a term that has a technical meaning in connection with picking one of the objects that's displayed on the screen it d document not about the infringing products but what tech sector doesn't mention is in that document troller the thirteen times they use select it refers to just that picking menu items or picking some information on the screen there is one  that is read into this claim from some dictionary that they found again pick means select means pick or choose you don't just like with a name a baby name i can select any name that i want if i'm starting a company and i want to select a name from a company i'd probably be better served picking a name that no one else before i can select whatever name i want and that is exactly how this file labels supposed to work and sending out an encrypted object and i'm going to select all the permissions that will go into that i don't have to know before i meet the object who i'm going to send it know selecting label conditions again we're talking about the things that will go into the labels that selected the label and with the acrobat product you can only select two different types of labels there's encrypt with password and there's encrypt with certificate i have to make that selection at the outset then i'm going to select the encryption algorithm and i'm going to select what permissions the people have and then the acrobat will write that label into the trailer that becomes the label and the court already found that that is the label there's no label when it's not encrypted and then when the document is encrypted there's a label on somebody selected that and me as the user i have to make those picks have to make those selections so that they will get created by acrobat as an act of infringement somebody has to make the choices in the user is the one who makes their choice and that's what creates label adobe's documentation exactly same thing if i want to select a file name for a p d f i come up with it whatever i want to i select the file name and that becomes the name  f other courts have come to the same conclusion we say that clint tech nutrition case select is just to choose it doesn't mean anything more than that you don't have to have a static list of choices the whole point of this plan is to be flexible and on the fly so i don't have just one drop down of people that i might be able to send a document to i can pick them as i go that's my selection the examples that the court used to get to this preexisting only came from a different part of the