site update solution versus anchor north construction positions for that matter super sax somehow cure prior frivolous claim construction positions and the exceptional case of finding from existing two we have th are somehow excusable because they're inconsistent with established precedent and that's what the court down below relied upon what happened here new way the defendant here suffered a gross injustice by from being forced to defend a frivolous case for two and a half years or so far you've mentioned gross injustice you mentioned frivolous what are we to make of the fact that the elephant in the room is that we've got two supreme court cases and i'm sure you law if the supreme court would just say that it's an abuse of discretion that would affect how we get it would your honor so i suggest a likely outcome is the supreme court's opinions are see that you will find there has been an abuse of discretion with respect to the decision here from the district court always with respect to the judge's decision with regard to the claims that are indefinite if you've got a patentee and  they've gotten a pass and then they go to court and they lose it because if they lose the case because the plaintiff and definite you can't stop them and i mean even though you think it's not a close call and claim should have gone down because they're indefinite it's got a pat actually say and concerned that the four terms are indefinite rather than prolong the litigation difference of this report's a termination to drop the case there are other cases in this court of space where patents are found in doubt just because a parent has issue strong of a precedent to strong of a general rule of law the issue is not just the invalidity of the claim issue is signed up to chose to assert what one patent one claim claymates all needful function elements each use assumption elements there's a duty to proof for a presume to know the law under rule levon when you file that complaint when you file your infringement contentions in eastern your suit texas when you positions was the trial court agreed were for alyson east texas in their opening briefing with respect to means to function and then in the northern district of california the judge says they're not entirely frivolous to me what is that partially fergalicious maybe maybe the maybe it's wrong maybe they had a their their determination was wrong as opposed to frivolous and we have cases every day for people loser cases not wrong i would suggest that in a case where the positions were frivolous in east east texas and there's no doubt they're from lists where we have most of them just having a script which is nothing but a program and then we then look and trolls and a number of times you get into a lot of labels and name calling and it it almost reached to the point to me to be a brute based on hyperbole and labels characterization i don't see the word troll in our in our statutes i don't see it in the pending war and i just want to you to know that it's very distract honor that an hour maybe i should ask your friend on the other side this is well it is i mean the district court is that your view is his ultimate saying what side of the line this case comes out on was driven by his view whatever that that's not sufficient to establish that there are nuances the lack of clarity to justify what you think is a base but that is definitely our our position is the law is ever changing in all areas that we can argue complexity and unchanging and in all my construction and martin continues to change indefinite as continues to change that doesn't mean that again when when a when a plaintiff brings a claim with you have a duty to the law they signed into law in fact the lower court lawyers district court lawyers actually have been to this court before this court on those issues of law relating to music was on going on software claims and show but they did it i mean their arguments seem you know if it's weak but they pointed to the web server the c g i program and the like to say this is the part of the specification that sells the means plus function tests looking at all those who have technology here that is more complex than for example was engraved on or mark just because we have more complex technology doesn't remove when we dive into it the baseless miss of the positions and the ever changing nature of those positions and we need to analyze it from that for from that rubric well if it your view that under our case law was relatively clear that structure that they point to in this occasion was was an adequate under what we've said is requisite structure in these cases yes yes your honor it is both both of the spectrum useful function generally and then obviously we have the second argument with respect to the table search engines table files which which even side up a scalpel mentioned was the preferred environment during the course of the argument before the district court and and the district court of knowledge i get in trouble if i didn't include it and yet somehow they they did move from texas dorna sort of california to include the generic website database which was already in the claim in claiming eight but yet they would not include the specific structure that this record requires required to be linked and this is over two years of discussion with site updates council through now to me to confer processes under two local rules eastern district of texas northern district of california let me ask about that because one might say well this doesn't look like an exceptional case to me because it kind of went off or so of even if there were really serious question these were not really bad because you know this case settle they offered settlements they they pulled at their tent pretty cases i do think this court can take that into account and again depending on the standards it will depend on what the what level however when the trial court finds certain positions in the eastern district of texas that were from list and highly materially different that then a dismissal after a marksman two and a half years later litigation going through a transfer from east texas to northern california does not somehow then mitigate and if that's one of the abuses that can be created here is that someone can file a complaint a paper bad day positions frivolous position somehow try to argue either cure them because of add a little bit of structure and then dismiss after they get to the e updates claims are directed to a general purpose computer the special structure that is directed to if they did not they did not provide the special purpose computer with well let's put it this way the district court seems to hold that i think that the position but your position welcome to our my position is that the plaintiff believe that it was a general purpose computer to think that there was some basis for you to assert that this was sufficient structure in direct case well i think the basis to the first of all there was a factual dispute between experts i think it's abnormal these days that experts  desperations in marking proceedings and in part the district court relied upon the expert declaration of newegg so there was a factual dispute that underlies the legal proceeding here which is a factual  dispute there was no challenge to the qualifications the expert no challenges to the analysis the expert there was simply disagreement between experts think it's reasonable for a litigant to rely upon the reasoned analysis of their expert in addition to that the district court call that out as one of the bases for him not finding cases the district court mentioned that he relied upon the expert of of the defendants but no i mean in terms of what i think what he said was when he said it's a complicated area of law i think it's a complicated area of law because i could say that about unfortunately pretty much anything you're right fair enough but if it were it's a complex legal framework and also underlying that can be factual it is but i don't see how that's a reasonable reading of our precedent i think that it says if you're looking to a general computer you have to specify an algorithm so i think i believe that the position that that site update took and let's take the district court has ruled we have an appeals ruling i'm not saying the district court is wrong i'm saying that signed up to this position was reasonable and it made its verify what your position was a little confused as to whether you think your claim was a general purpose computer and you don't need an algorithm other as a precedent or that your claim was actually to a special purpose computer and that the c g i program coupled with the web server stuff satisfied that specialize computer and al that that the claims are directed to a general purpose computer or not i mean that that makes a big difference to the outcome of the case an issue is to me like you're having a hard time articulating the position i'm sorry i am i'll try to clarify that there's if there's another case from this court tech sector says i b m which is seven thirty one after thirteen thirty six to talk about if their software this disclosed in the specification then you don't need to show an algorithm in fact as this court has said that with the software enough of that to compile tables or do whatever your claim is supposed to do or is c g i just some kind of software program that permits people to host web sites there is a dispute over c g i and i think th primarily the specifications state what the see the c g i call program does that the expert that the defendants submitted with their mark and briefing contradicted that instead of c g i program is more generic generic it doesn't do the things that that's what the district court partially credited in making its ruling and either your expert said the opposite or otherwise are actually i think it's fair to say the expert said more or less the opposite each other but i would also say that our position has supported the specification which i would which i think it's reasonable to say should trump in that circumstance in terms of the experts disagree over whether the c b i program does this the specification says it doesn't and i think it leaves reasonable to rely objective yes but i have but the factual findings that underlie that i believe are still should be entirely different ok because you say in your will you have the additional briefing and you have a statement right up front that says new it again provides no factual proof that the district court if used just i mean i agree that you should decide on the current standard i think of the current standard side of they should prevail as far as i see in terms of the change in a law i don't see that really affecting a change here and i honestly i don't think it's a close case and i want to point out while i still have time that in terms of this indefiniteness if you go back and you look at the defendants new legs brief that they piled in eastern just to give texas they didn't assert indefiniteness on the basis of a lack of so it just seems remarkable to me that they say will side up they should have known from the institution of the case in the eastern district texas that these claims were indefinite when their own proposed claim constructions didn't assert that that indefiniteness they changed their position once it got to the nor california i'd also say that in terms of them saying well site update revised its instructions between the two courtrooms and somehow that shows that say if anything it shows good faith and i point out that in the first proceeding side that they cited they had no opportunity to power apply the case was transferred before the reply was made so side update from opening brief in northern california essentially was its reply and it revised its positions to address the criticisms of new way people are going to potentially people are not accusing you of those people with patents can tell meds file complaints and hope to get clicks out of it and if they don't and they hold their hand then they're not liable for attorney's fees i mean if we if we take how quick somebody falls into that's going to encourage that practice which i think you would agree it is that so why should we really weigh the timing of when you decided to give up but i think it's a factor i think if they are proceeding  then then why would they from their tent why would they keep going if it was truly shake down as new as alleged why would they continue that shake down because once the what once you know everybody realizes that the lose then you've got attorneys fees that you're going to be spending and what is that i mean that's a strategic decision but as you said i mean often i guess the most egregious example from one hears are people who really might have objected we baseless resolve this case what i guess i want to get some clarification on what you think current law is the district court to tell me if you disagree the district court as i read it seems to apply objective leave facelifts sort of use that term interchange frivolous right is that your view that that's what the current law is that just that we baseless a standard and that is equivalent to frivolous i think frivolous is one way of saying objective leave basis i don't think it's the only way of a point i think you may be conceding and stepping on a slippery slope here well let me say i i think when you read the court's opinion and hope that he said that side of state was not frivolous and its positions were not objective is that he went through all of these factors he found it was not objective lead based lead here part i would say that part of it was frivolous i mean maybe a percentage of the the district  no i don't i don't think so i don't think that can see the anything it does to the extent that if you know i pine not a legal scholar if my statement is somehow you know construed that way i would just say that the district court applied the standards of there's a real lack of clear eddie ins in our at least in our recent precedent about what's required in this general purpose computer is not sufficient you know i think that they i think were reasonable minds different primarily is whether something think that's an area where there can be factual disputes and that's an area where there is lack of clarity in a long list exactly where that line is drawn i think that there's also somewhat of a lack of clarity in terms of where the lines drawn as far as a a general computer as far as its generic functions but that doesn't really seem to we weren't your aware of it at that time but this court said the defendants contend that the examples only disclose generic software not a specific algorithm and what the examples here provide detailed prose shows how the specific software products operate implement the claimed function very similar to what we have in the present case and the court said short of providing source code is difficult to envision a more detailed disclosure in doing so it reversed the district court's conclusion that the specification l the result that we have here i want to touch upon website database because perhaps it is something that wasn't briefed as clearly a start drennan noted for perhaps but also comments on the experts disclosure their expert only commented as judge hughes noted that there is a special purpose computer there is a linkage then to the function or whether that that computer actually perform the function of the calling the fifty nine counsel down below who was confused about the law so i don't understand how an expert declaration was based on law that the district court recognized they were confused on at least this complex are there any factual part of that or do you just happen to know whether  we don't know what it does until someone actually gives me the code to tell me what the script performs it does nothing in and of itself is c g i just a generic name for a class of programs is a common gateway interface so it's used to just connect on the internet but it does it does something that they had given up at the martin hearing not so that never happened if you read the transcript of a seventeen eighty six seven eighty seven you see side up they've agreed there must be something more than the web site but they actually refused to agree with the court that it's more than the content of the website itself and so in fact in the opinion of the court on a sixteen the court errors when it says tied up in agreed that web site database had to be distinct from the content but that's an error that is not harmless right there on web site database in and of itself the court was confused it thought that web site and content the website where the same they are in terms of these claims but side update was playing  and trying to distinguish it why because there infringement contentions which are a one eight seven seven point out that they were they were accusing the website database of being the collection on the content of the website so that's why they