its jurisdiction for two reasons first importing set top boxes cannot violate section three thirty seven because they are not articles that infringe section three thirty seven isn't in ram statute so the focus has to be on the status of the articles as they cross the border these boxes do not satisfy the limitation all limitations of any will be claim so they don't violate section two seventy one a the staple articles so the factually and legally in a way both that suggest that suprema doesn't control here and even that's a promise doesn't justify the exertion of jurisdiction if i might just walk through a little bit and again i don't need to be presumptuous especially with your honor in suggesting that i  can tell you what's a problem means but i can tell you how i read it and i would start with the holding of a conclusion where the court holds good the commission's interpretation of the phrase articles that infringe covers goods that were used by an importer to did not directly infringe second the there was no inducement to get this out of the way so comcast is the importer not the no forgive me that's our second argument comcast is not the importer but that but even if you're going to grant it for the purposes of control for analyzing this year that that comcast did not directly infringe on the other key point i think is that in suprema so come of the foreign company did the inducing pre importation and so on i think and i do think that that's the key difference and that as i understand the court's opinion created the connection to the statutory language and it's in rem focus and that there was  that's quite clear all of the inducement occurs in the united states after importation all of the inducement is comcast convincing its customers to use the mobile app which allegedly infringes the robie patents for there is no suggest is what you need to create the connection to the in ram focus of the statute that the articles have to infringe when they cross the border and as we read supremo what it says is that you could find that the articles infringed when they cross the border because there was pretty importation inducement involving the articles in fact the convincing suprema convincing mentality to import the articles and to use them in the way that mentality did in combination with the software that resulted in direct infringement was the a special occasion to do that so yes right i'd like to make a specific point in the broader point about that if i could with respect to the specific point we do give them specifications so that the boxes that era's a technical or manufacture will work in our system and it is true that a footnote thirteen of the commission's decision which is at page eighty five of the appendix and there are alternative backup holding they say that that amounts to inducement but i think that there's a fatal legal flaw with that argument because if one looks at the record pages that the footnote cites what those record pages say are just what your honor so that we provide the specs that arson technical and then used to manufacture the devices but that's those citations could even arguably refer to the site the other part the citations all refer to comcast domestic activity trying to convince its subscribers to use the mobile app so very respectfully there is zero evidence of pre implantation inducement here and that's the critical distinction from suprema and and i do think that i do think i could make a more general point here and just take a step back and they help the court understand why this case really is the polar opposite of suprema the se boxes as most found in this proceeding are staple articles they perform generic functions when they are combined with comcast system or comcast system is a cloud based system all the intelligence in the system resides on the is that the the scanner's them that the difference is that suprema persuaded mentalities to purchase these scanners and persuaded them to load us to use the software development kit to create software that doesn't seem to be answering the same question and that's answering the question of investment in the leg but you're arguing that even though these these block the comcast boxes are specially especially built for comcast are designed to work with comcast system they're still staple article of commerce but it seems to me that the very thing think of the inside of the scanners and superman i understand that but i think there's a vital difference and it's this once the software was loaded on which was what supremo was trying to persuade mentality to do the no scanners at that point infringed one hundred percent of the time one hundred percent of the scanners for instance hundred percent of the time here what you have is a situation in which when these boxes come in and this was the finding by the l j undisturbed ninety nine percent of the boxes are never involved in any infringing activity one percent of the boxes are involved in the infringing activity alleged here but even though one percent are predominantly used for non infringing uses and so you have a situation in which you've got an exclusion or that bans one hundred percent of the importation of these boxes in a situation where ninety nine percent of the time that there's nothing infring on with had situation be remedied by the exclusion order to of by how much grafted in a choice well the problem problem here your honor is i think that the way the exclusion order was drafted was was to exclude all of the boxes now we were able to come up with a workaround but i think the work around at this point of the box is that they're they're not all coming into the they are just correct if you are coming in your own but if i could just explain why they're coming in because we made a change but we didn't make a change t box we made a change to the domestic software on the domestic servers so that the app function wouldn't work anymore the boxes are well and now and now they are the boxes are being allowed in but the boxes are one hundred percent identical to the way they were before the exclusion order which i think tells you that there are these are not exact that you designed around and you limited the feature that was deemed to be infringing correct but not in the box your honor because the wood and remember in the system in the system but not in the maybe say the same argument could have been made answer from other the users of the scanners could have decided to put on different software for those cars and then it would have been not infringing and so there was a desire on there to yes your book to keep difference i think and i'm starting to see the key difference i think is that and it was repeated i would respectfully many times in the suprema decision is that there was pre importation inducement by supremo suprema persuaded mentalities to use the scanners in this way and then and then him and then took an affirmative act to promote the inducement by selling the scanners across the border that's ations so that they'll be imported and that the customers can use the mobile apps in a way that will branch so it may not be the same exact chain of a pretty importation inducement but it seems like  possibly different chain that still suffices but you just make two points and i'd like to make some points about the importer issue if i could i think that the differences are vital given that the statute focuses on whether these are articles that infringe when they cross the border and so the pre importation inducement is vital and although there was pretty importation communication with harrison technicolor there was no premium for ta j specifically found that at page three sixty three so the fact that all the inducement occurs post importation in the united states i think is a critical difference and that's why you end up in this situation with the wildly disproportionate exclusion importer in given as a single importation you can have more than one in four you could have different character actors that are all importers yes that's certainly true your honor but that doesn't but i think that doesn't allow one to stretch the meaning of importation import so far as to cover us in this case because what we have here and what the commission said in this case is not why not you're manufacturing the goods abroad according to particular specifications for use in your system legal point and then if i could i'd like to reserve the balance in one time to three so to see that we as a factual matter your honor we provide them with specifications the contract doesn't require that these articles be built broader domestically or anywhere the record shows that we're agnostic as to where they're built and i think one way to understand why we're not an importer here is because if there's a technical it tomorrow decide to change their mind and and manufacture these products in the united states the contract would not change one iota their relationship would not change one iota information we provide to them will not change one iota so what we are sufficiently involved in to use the commission's language and most of the manufactur customs more well that the commission didn't find us to be that importer on that basis you know they found to be that important as we were sufficiently involved because we provided the specs but as i said that's just involvement in manufacture and i think you can't stretch the statutory language as far as they want to and there are strong textual indicators that you can't one of them is section fifteen zero fifteen zero eight which was a record keeping statute and specifically provides for record keeping requirements for reporters and for those cause importation so congress thought of those as two different categories there if you look at fifteen twenty eight the same thing is true there and if you look at fifteen ninety five the same thing is true there and i respectfully i think three thirty seven itself shows that congress made a considered judgment legal difference but all of the boxes all the scanners and supremo were loaded with the infringing software and they operated and infringing man are here even though they're loaded with i think  and that's the chief some members of the court quite a lot second of all this issue about one percent of boxes are not that also sure but that's an easier determination to make to because it's basically is this software going to be loaded or is this being sold user i would be i meet i've seen you agree they would be impossible to fashion an exclusion order that only targeted the end users that youth this device i just agree with that i mean this is a situation in which the box is not only were only worked on comcast network they're not allowed to be sold to people other than comcast comcast controls the entire system and the and the reason why we have this importation question in this case is because comcast doesn't sell its boxes to its users if it did this would be a simple sale for importation but comcast itself maintains control over the boxes so we have that importation issue is comcast viewed as a first purchaser after importation you know the be the on the scanners in this case the l j here found that the x one cable box is at issue form a necessary part of the claimed local interactive program guide equipment to try to appendix page three o five comcast expert  inducement just kept going you know comcast was encouraging its users all along to engage in this remote recording functionality and contests never stopped also unlike supremacy and your honour's may remember also that the members of think sue a spontaneous court said if an entity offers a product with the object of promoting its use to infringe as shown by clear expression or other affirmative steps taken to foster infringement then it is liable for the resulting acts of infringement by third parties and that's exactly what commission has interpreted its it's one wage pragmatically for purposes of importation you know the purpose of commission proceedings is to stop unfair acts and that's that's been the case for the better part of a century now the commission has three pages of findings as to comcast control on pages one thirty five to one thirty seven of the appendix and comcast is not nearly contracting for manufacturing and delivery of products all of the boxes are custom made for comcast they work only on contrast network they can't be sold anybody else comcast requires the boxes to be pre loaded with what amounts to comcast operating system and the argument that it that that it's sitting there in the same way that i might order a box of corn flakes from someone is it was kind of fanciful as we've pointed out in our brief the commission's test for importation of consonant with case law demonstrating that  a person like comcast is a person who brings articles into the united states you know in response to those cases like the decision of the aggregate pumphouse as well the purpose of those other cases was different but then that proves the commission's point dovetails with this importation argument that comcast makes they say that a limited exclusion order extends only to named parties and not to anyone else acting on those party's behalf and that's simply inconsistent with with global trade two well for present purposes that's true and i would agree with that but there's some ambiguity in the record about whether certain software gets shared with other parties at other cable companies as part of some consortium hundred thirty six i can't get into the details of that contest but also my sense of boxes to other cable operators i don't know that does so in the united states and so that there's a possibility there  but you're right that in this case these are these are contest boxes they're coming through iris and technicolor is part of multiple steps sometimes passing to arison technicolor taking title in the united states other times not in the united states with other actors participation with anyone i've described many of our three thirty seven cases involve the issue as to the scope of the exclusion order here because comcast never does sell the boxes he remains the owner of the boxes i about this and you know if you ask customs how often are you having to rely on behalf of language what they'll tell you is almost every case that the supply chains are so complicated that things are moving around manufacturing that  company's transactions are changing because of taxes and other business reasons that they're always having to look at the articles they're always having to look at the invoice of their eyes having to figure out who the kind signy is and these cases it's pretty easy because they had a they went to customs for a part when seventy seven in our party were going it's wasn't part of the commission record but it is included toward the end of the appendix and they got relief and the boxes were allowed back  there's a sixty day period of presidential review here where the boxes were allowed in without finding and some two weeks after that customs allowed them in so they really haven't suffered here one last thing how safe is i think it will benefit the court because comcast in dispute morning thank you may please the court comcast does not dispute infringement and it doesn't dispute that it introduced that infringement that it brought its boxes in country and intended its customers to complete and use and infringing system the commission found that comcast and cringe inducing conduct began before importation was induced the importation itself was induced in conduct and that it continued after importation it occurred before importation when comcast designed the x want to be used to be used in infringing manner and sort of direct quote out of the commission's opinion and it did that in two ways first the patents require there to be an internet communication path for the command and these boxes are designed to plug into the system and be able to receive that communication over the internet from the remote in order to do the recording function and they are specifically designed to fit into the system and perform that function and second one of the limitations is to have a local interactive television programme guide and the specification explains that the guide can be consist of a server and client set up the set top box and home how servers and these set top boxes perform critical functions in that local interactive program guide they are designed specifically to function it so the design itself of these boxes to infringe itself is an event that occurred before importation in protection itself under supreme can be inducement and part of the inducement in the boxes were brought into the united states each one of them as part of a scheme to induce infringement contests not disputed controls how many come in when they come in what the boxes look like and which of comcast facilities they're delivered to exercise of control the fact that these are being brought over to the united states and finally threw out comcast has been inducing for infringement while the boxes are being made it is brought it is promoting telling and describing to its users how to use the remote porting functionality it's promoting the use of the x one system putting extended the apps in its online promotional materials that is all going on as bosses are being made being brought doctors are being brought across the border and boxes are being distributed in the united states whatever temporal limitations supremacy might needed supremacy canners you needed to suffer a computer and you did mental exercise where here comcast pretty much provides everything it provides the set top boxes it operates the cable system they plug into it instructions consumers how to use the infringing system and it provides the apps and the software needed to complete the infringing system and use it i want to turn first briefly however one question drug use that was your question about one percent because i think that in some sense is a concern about subprime and not a concern about its application i don't think it's one that should matter because under subprime of the commission just doesn't have to wait until the inducement it's thirty percent or fifty percent or seventy percent of home pass customers it's allowed to intervene at the border in order to prevent that interest me from having greater effect and it makes perfect sense in contacts like this because every set top box that comes across is part of comcast scheme of inducing infringement everyone is designed to be capable of infringing everyone is theirs for every one of them comcast is advertising you may use these boxes you may use our system you may use your remote it or did you do the functionalities that are covered it the tech i think the commission frankly can tailor remedies and it does tell remedies and this court this decision shows exactly how it does that so the commission for example can limit it to goods that are imported with the intent to induce the commission and also delay its orders it for exclusion to allow the design around and in this case what the commission did is it actually decided to not post a bond or out require a bond and so do an entire sixty day presidential review period contest to bring in these infringing boxes and then once that period ended comcast was promptly able to redesign things to avoid infringement get a certification from customs and border protection and begin bringing in the boxes on the sort of occasion that these would not be used for the infringing purpose could cut the communication with the server so the weather app isn't working anymore and what comcast effectively did here was the latter it effectively cut that communication with the remote in order to rather than changing the box and solve and that's because it's a system claims and the system claim require that and i'm not going to describe it in detail but i think if the court were to look at page fifty eight thirty one which describes the tracing of the data and the information that goes on starting with the client out on the left and it moves across t maintain ownership of the boxes that's correct that's a standard industry practice for raw cable systems that are making too much of boxes and don't enter the freely the us market they remain in position and control of congress then they do and they but they are used as the a l j found in the commission upheld overwhelmingly for non infringing ways and my friend quoted some numbers but you know the nothing numbers on the other side of it you know for twenty correct but i do think it gets to the point of why there is a problem severing the commission's exercise of jurisdiction from the question of whether the articles in french when they cross the border because it creates precisely the problem that you have here in this situation with the remedy in that the remedy is wildly disproportionate because the remedy requires exclusion of all the article that you accept because there was no time or whatever you were able to make the fix so that you can now because one percent can infringe because that function is not there anymore and so nobody is infringing and and so nothing of yours is being excluded for non infringing uses which would be a problem  adapt i mean if hundred percent of your boxes were looted from only one percent usage and you had no way to address that i think there would be a significant problem but you have a very quick and easy fix which is get rid of the offending functionality and you did that and you got your boxes back again i don't understand why that's not a reasonable exercise of the commission's discretion because that it's not a commission didn't exercise discretion in that way or are the commission bandung we made the change now it's for all of this what other way would there pretty near iran i know i know i'm not going to doctor question but i do think that that's our point our point is that the remedy the fact that they have this problem with the remedy that they can't make it fit  in this case is a dispute between two domestic companies about conduct that's occurring in the united states in enthusing activities in the united states and the allegation that we're directly infringing as a result in the united states with a thousand have anything to do with unfair trade practices and that's why i think it's important that with respect for the statutory text and it's in room focus the force because otherwise you're going to be in precisely this kind of a situation and you're going to be widespread circumvention and it would it would actually make three thirty seven spertzel us there would be no use for all you have to do is for example this is infringing feature this is not well if it's sold in the united states it's infringing but hey that's important and once you come into the u s then we just put it together and sholom and we'll take our chances with the district court but if the reception is designed to prevent that from happening to prevent this  customs laws appreciate there that and perhaps that would explain a situation like supremacy one hundred percent of the ark what we're going to be used for infringing purposes but the problem with allowing the complete  the case my friends on the other side are advancing our no articles that infringe when they cross the borders there is no unfair trade practice in these articles across the border and i do think that's the fundamental point