respect specifically to the four five seven there is no dispute between the parties that bilbies exponent strategy is assigned based on the signals they do forty five strategy is a to transients or signals that vary in time or are unstable and they do fifteen strategy is assigned to signals that are stable or that very little over time the district court found that there is no dispute that's a ten through eleven of the court's opinion to dispute for their own centers and whether that variability or stability can be tied to tonality on that issue is where the dish court ruled against us and we presented sufficient evidence on that issue for instance with your description is you take little snippets from a deposition which may or may not support your point and then link them all together with attorney argument and an exceptionally difficult technology if they're not self evident and i'm wondering why you think that even though these little snippets might seem in part to support your theory why that's enough to coddle a jury without an expert report well here we're talking about a couple different things first of all i would agree with you in some respects that technology can be complicated in this area but the question we're deciding is not complicated the only issue district court found nailed on in the four fives on is whether ignored the district court gave the there's a document that was written by six till we engineers the audio engineers made this product it was presented to the audio engineering society and it describes this technology concluded was that this reference standard that even for todd's testimony and he says he also testified that bill b did not actually implement what is described and we talked right same thing let me let me be clear there's two different technology was not employed in order to reach that conclusion he did or conclude was i mean the question is whether or not you pour forth sufficient evidence to establish it was implemented i don't know what it was and why i'm going to i'm going to tell you what our evidence was on that particular point first of all if you look at the balance forty one forty six about specific sentences and whether they were implemented in ac theory and he specifically said is that sentence implemented is that sentence and he meant it cetera that's a forty one a one forty one forty five and a one forty one fort say seventy six lines the case so where it where it is she saying if you look at stuff page seventy five life thirteen ok through page seventy six line seven we specifically asked him whether the technology was implemented so when you look at what the witnesses actually said they said it was implemented in a basic and that's not it that those sections of the a c three standard are the same as the technical description in the presentation to the audio engineering society which was written by dolby engineers and presented five billion tears and we asked tot it his deposition are the descriptions in that document accurate he said yes they're accurate and that maps perfectly w sued for doing it but then we asked them when we pressed them do you do this do you do this how does it implemented they said yes every single time but children i think the judge is taking conclusory denials about the claim language and disregarding all the transience is the same as to now any sometimes yes sometimes not so every time you give a snippet if you keep reading down the deposition page that that then they say well sometimes it is but sometimes it's not and so without you having an expert how do you actually sh body they describe how the exports to export strategy is set out and they say very clearly that the d fifteen strategy is used for stable signals that are total in the d forty five strategy is used unstable signals that are flat and their engineers testified on it perfectly and i have the strength to read through that he said i'm told there's a signal with a constant frequency and noise refers to a flat spectrum with so why couldn't you get one expert in the united course in the ninth circuit at summary judgment there is no difference between fact testimony and expert testimony the question is our evidence is to be believed if we have put in their appearance and you're not allowed to balance it against always we have put in evidence that clearly shows dolby admitted in their documents that the defense strategy is for stable total signals they use the we're told and the d forty five strategy is for unstable that signals and they admit flat does not address where the limitations in these two patterns are located in the accused device they don't cite to the dolby a c three source code at all eight or ten pages of code with no explanation absolutely no what about the page deletion that the other side directed me to in the appendix in the testimony of mr field field field or on fourteen for one forty eight of that standard and it's it's clear in the record that section eight was informative it was not nominal so it was not a section that was required to be implemented it was could versus you saw which this court handed down in december of two thousand and four in that case the court said the central issue in this case is whether the absence of relevant expert testimony resulted in a failure  it's just a little troubling to me i mean maybe i just misunderstood that your response your response of to my question i mean i was talking about me mr field place testimony the fact that mr brandenburg another expert let's assume hypothetically another enough to create question issues of fact so the fact that mr brandenburg may put a gloss or restated or stated a different way something that another expert said doesn't get rid of that does it for purposes of their judgment but i think that from the point of of centrica center could stands for the proposition that you cannot just lay out a bunch of very complex evidence to a judge and then have the judge decide the fact was that the judge found that the portion of the testimony which they were referring to was not in nineteen through twenty three where he said i want you to focus not on whether this was actually done and explicitly tested in issue three but whether the sentences are reasonable when the court pointed out that they ask them not to address themselves to what was actually done but to a hypothetical the fact is that they have to point to where the limitations and each and every limitation in an asserted claim is found in the q no i understand that and i appreciate that that and there's some discussion of that somewhere in the briefs about how they weren't asking they took this information it was based on a question but i guess maybe i'm just misreading it what do you make of the language on the question on page eighty one of the transcript that's on one four one four seven where the question is is this the way the exponent strategy is implemented in a c three and he says i believe so is that's strategy if the new expose will be used for two or three blocks then the d twenty five zero g is used if the new experts are used for four four five or six blocks they use a strategy d one five that doesn't say anything about tonality b noise and then a steady state always it codes exactly the same as if you have the onset of a tone and then a steady tone and so that language doesn't say anything at all about tonality and that and that is the entire the court said in effect you cannot the district court cannot be left to conduct an analysis of the evidence and find infringement in that case the isa submitted to the judge a list of work function of value and said well hafnium has a lower work function than copper and therefore conclude that there's been infringed that's exactly what happened here the lucent points to some testimony from engineers who know about coding audio coding they are not experts in tonality the claim term is tonality these these are not seven o two experts in tonality they do know about coding but they have testified each time that they didn't know about to analyse what the measures tonality work and yet loose it does exactly what this court found isa could not do in the case and that is and how describe it the quote from page thirteen sixty eight of that case said piece of a search that the testimony regarding the general properties of happy medium and silver and their use within the plaza art torch welding field was sufficient to prove that the work function was satisfied but the court pointed out that that those engineers who knew about arc welding did not know they were not experts in work function and the court said quoting again from page thirteen sixty nine each of the substory theory suffers from the same deficiency none is supported by expert testimony and so we have that's exactly what lucent is done here they brought up some engineers dolby engineers who know about coding and who know about translations and now they have said ha we put together some of this and that means therefore that there is infringement on finale and we call tonality in this code they read but that in no way they rebut that and come back and say well there's the engineer said maybe this or that awful i missed where they said the same thing about and they don't really reach no conclusion about tonality no expert to source code and the judge ruled that we answered you know running towards correct about the source code and the information that they asked for and then listened refused to file an expert report that's fully briefed and then in the time frame if they ask for that they wouldn't agree to a time when expert reports should be filed and so the default position was december it was january tenth according to the federal rules ninety days before trial that lucent asked for a claim to construction i mean a  status conference on january seventh that was the friday before the monday which was january tenth and the the evidence is very clear they asked for a continuance of the time to file an expert report and judge vocal told them over and record if he judge seaboard thinks that there is merit or potential merit to your motion then he can in his discretion decide to extend the deadline at least until the motion is decided but i'm not going to make that decision for him he just focus said i'm not going to make that decision he made reference to the t r o and he said bring on a motion on an expedited basis before judge seymour and give judge seaborne not judge fog decides to extend it that will be the situation they did not bring on an expedited motion they filed a motion on thirty five days notice we were now on ninety less than ninety days away from trial they filed a motion thirty five days notice judge fogel in hi properly said i'm entitle to manage michael i can set up the i'm entitle to manage my courtroom according to my rules and if lucian doesn't obey the rules and i give them notice to then there will be consequences the consequences were that they did not could not file an expert report but it's very important to note that lucent has said is just as mr tamir said here this morning lucent told judge fogel they did not need to file expert reports in response to the motions for summary judg that's at page one five two one three the court said to mr de maris but all right you're not seeking the right to have experts on summary judgment motions answer mr maritz not for the infringement motions on the infringement side we have made our case on the testimony of the dolby engineers he stated it said that he was doing exactly what he said he did in situ versus he said that he was relying he was going to rely on engineers who were not experts into the holiday to attempt should to knit together some evidence presented to the judge to have the judge work as his own expert to conclude that maybe that that represented an alibi that is not that is not sufficient under center i would like to that he laid out a procedure for adjusting coding strategy based upon the detection of transcendence the presence or action or absence of trenton's and he proposed a change in coding strategy based upon whether or not transplants were detected lucent told the patent office when their plane when their patent was rejected because of sugar they said quote and this is a nine three eight schroeder does not teach or suggest or suggest generating at least one tonality index in fact schroeder does not even mention the word tonality so they referred back to the necessary element in the four five seven patent the patent was granted over that so schroeder addressed different coding strategies based upon detecting or not detecting a transfer and and lucent told the quality of the signal so they told the patent office that changing a coding strategy based on that tech should or not lack of detection of a translated did not constitute generated maternity value now they're before this court saying that detecting a transparent and changing strategy does constitute you have not mentioned your cross appeal and you haven't reserved any time for on the cross appeal and i'm but i do have one question in that on that matter and if you direct your self to your reply brief  question i have for you signed this reply brief i assume that that you wrote this document it says on page two bottom paragraph lucent admitted  find find this quite disturbing because you know we have a lot of materials to sort through and you make a flat out statement like this and we dig into the record with all of the citation there are a number of citations here there were six different citations and digging through all of those citations not a single one of them represents an unqualified admission i just picking up on that last point and i think i need to point this out it's that's not the only thing that's unsupported proof if you look at page fifty they make the unequivocal proposition that the aid they are hearing threshold allows the coding of sounds that are in a lot of and they cite fielder's testimony that is absolutely one hundred percent opposite what fielder testifies on those pages in the district court relied on the district cou that's an inappropriate argument in rebuttal i was bringing it up only because a your honour's question to mr cooper about what's in that river i think it's incumbent upon the court to actually look at the sites because as you saw when you asked mr cooper about the questions about what was actually implemented he didn't actually address the record he went off and said well brandenburg said it's not that puts his finger right on the issue in the case which is we're not allowed to get this procedural patent and trademark office the transience want the same thing as tonality there's no proof of that in the record there is no statement ever by losing that transients are not the same as two now if you look at what we cited to the patent office so do not it doesn't non transit that's what all the tells us in their documents that's what their engineers there are things that adobe witnesses referred to about the onset of a tone where you're changing from one particular sound to another turning during th don't know what we're talking about that has nothing to do with this case in this case we're relying on the dole these engineers who designed your huge product who are in fact the leading or you putting people in the country the more i am case here is tell a more where in tel this confidentiality marking right which we bump up against when you're trying to write opinions or analyze them i mean you've got the appendices some are confidential and there are certain transcript portions that are marked confidential hundred six but that was underneath it we were a licensee we use that technology is under agreement that that code can be used for a thing and there's no evidence in the record that that code was ever used for anything we're not allowed to under the agreement the issue about production in that case it is true don't we produced co was in the commercial products that was in the commercial price we had to bring a second motion to compel them to say tell us which of the room full of code is actually in the commercial products they refused the magistrate judge shockingly did not deny that aspect of the motion of the code without comment without analysis without it being did not tell them to tell us which code is in the commercial product we appealed to the district court again without analysis the district court said well it's not an abuse of discretion i'm not going to second the case is submitted