please the court this was a very unusual case the played a call to experts to testify at trial neither of the experts had performed any investigation of the actual point of sale devices at issue another expert would even say that the key requirements of the governing claim construction have been satisfied in light of that the case is clearly controlled by this course prior decision in union job kim in fact this case is far worse than you know in new england the issue was a formula for baking bread involving the question was whether the addition of additional ingredients materially affected the quality of the bread well apparently your argument as i understand it you just presented it was neither expertly either saying when even say within the limitations rema unmodified limitation was satisfied and when asked to explain why it's important to know that there are two requirements of the governing claims of construction first that the pos devices be of a type in existence prior to july making ninety seven and second that they not be have not been reprogrammed customized or otherwise alter with respect to their software or hardware for using the card system and what he did if you look at his testimony he dressed the first element only he talked about how these were kind of the same basic things that existed previously but he never asked and never answered the question have they been reprogrammed customized or otherwise altered he too skirted that issue and that's what i asked him or cross examination i said you haven't expressed any opinions on that subject  most software no computer science background and he did allegedly three facts one he looked at certain documents that had been provided to him we don't know what those were it was unspecified number two he walked into a pos device a trial if you swipe the card through it and after some initial foibles was able to show that it read an eighty card that again answered nothing about whether that whether the vice actually used this was his device an old device he had had  relatively simple it is not difficult for this court to understand and if we look at two references i'm not sure that's true but go ahead i think if we look at two very simple portions of the references of living and lords we see presented by the other side why would you they had to find that there were things missing in those references and for example he said they were all closed systems right a few things our first we did have  was not a frenchman's the court announced a sanction while their expert was on the staff halfway through trial and this was a very rushed i think we had four and a half a trial date and so that and we want to talk the testimony was very compressed  this involves the clerk having to pick up the phone call relay bunch of serial numbers and other information and then get something back i mean this is this is seems pretty different for well you know the closer of course weather but if we look at that column two of the of the unusual both of these patents are directed specifically to point of sale activation of stored value cards phone cards gift cards the the way in which you activate them from a point of sale to avoid that so these references are right on the same subject they're right there together and one looking to create one of these systems would would clearly have been interested in reading about us sure and keep in mind also that the questions get them the that's true keep in mind also that there was an contradicted processing hub also very well laid out talks about the intermediate host computer moving on to the centralized computer if i would i'd like to move on to the sanction iran so i'd like to actually first address the issue processing done by class the court held as a matter of law the press could not be held liable for direct infringement we have the exact same situation here is undisputed that id cheated provide the pos devices has no control over the pos devices doesn't tell doesn't tell anyone whether i want to start where mr summers left off joint infringement the standard that he just mentioned from scintilla and is not the standard that the jury was instructed that as the court knows scintilla and holds that a system claims can be infringed by a single actor if the single actor uses the whole system and i think that aspect of that whole thing he just referred to was that theory where it is argued that a single user uses the whole system scintillate also makes clear that if that show it cannot be made this court's joint infringement case law control system claims equally as a controls method place that was a theory the jury was instructed on the direction and control standard the laws clear id t cannot avoid liability by simply contracting out some steps to third parties the record was full of evidence that that's exactly what i d t did all the contracts were in evidence mr baker as an industry expert testify based on that evidence testimony from mighty g s own employees and other sure so we're talking about the unmodified re cell phone cell device limitation and i want to step back if i could and then answer your question it was there's no plane construction issue on appeal this issue only with respect to the war greens he testified that he followed the claim construction and then under the claim construction and all of the evidence that he did inspect and all of the evidence that was and wasn't produced by id t and based on his understanding of the standard features of retail point of sale software and the fact that ideology encoded its cards in a standard manner the same way they credit cards and are encoded that all of the steps required well for example edge a one three eight five six mr baker's testimony came in through a claim chart where he had already explained that he followed in a lengthy one or a line we talking about here starting at the bottom of one three eight five five carrying over into one three eight five that respect that is one representative example of how he explained his opinion that the claim construction is set aside and i do want to emphasize that your opponent's argument is that it's all well and good  statement that the point of sale hardware is the same but you can't look at a black box and know if the software is the same and on cross examination the same witness imaging he had no knowledge of how the underlying software operates in these machines if i can go back to the claim construction answer your question the claim construction does not prevent any modification from having been made to the terminals all of the experts agree that point fail terminals are from time to time updated for various reasons their computers they run software the claim construction only prohibits modifications that are reprogramming or altering the software for use in the card system and the whole invention the whole point of the invention is if you use standard cards and connect your central account managing computer into an intermediate network as opposed to the closed systems where they are connected directly to the terminals that standard terminals can read these cards and he explained all of the evidence that supports his opinion that under the claim construction these terminals in fact have not been modified for use in the current system he was then asked about the software or did you say the name of the software he didn't inspect the software but there's no need to because he was an expert on the way standard point of sale terminals are set up to read standard in coded cards and to send all the transactions to the same back office computer and what id t did practice the invention by connecting it system into their computer he also relied on the fact that of all of the documents produced by i t t which included all of their technical documents their contracts with the retailers the deposition testimony of our technical witnesses it was not a shred of evidence in any of that information that related or referenced any modifications that we were quired or made to these terminals witness got up on the stand without any corroborating documents and said that in his view his own qualified expert view that was granted to change their terminals to activate the cartons with all pride his experience with the software on he did not he clerk that says swipe the card well mr granik and mr baker had already testified to the basic functions of point of sale terminals including displaying information on the screen mr frantically specifically explained that any time a car's swiped the terminal inherently sends a signal out to the network and doesn't do anything else it waits for a response and that's exactly what mr seinfeld described happened at waterman's it doesn't prove a software modification was required in fact the jury was able to rely on our experts testimony that all the functions that are discrete were described by mr schonfeld and mr wilkinson their experts are standard point of sale device functions they come with the terminal you don't have to modify the terminal to provide their function the same way if they don't have to modify my laptop computer to open up the word processor and if you don't have software modifications the performance unction on there is no evidence of theory you could have the functions performed different ways by different software on inferi but that's not the facts of this case the facts of this case are that first of all the claims only require the terminals to accept the entry of this card data and send it along to the next computer that's the whole idea of the invention and that's what that's the context in which the claim construction lives that the id t systems all practice the invention by providing standard cards that can be used in standard terminals if there were actual modifications made to these terminals in order to activate id tease cards there would have been a record of it they produced thirty million documents including all of their contracts with the retailers all of their technical specifications b s about the subjects in a derogatory in a deposition and there was absolutely not a shred of information about a modification of the temple of those records testimony again the claim constructions not in the spirit the jury instructions not in dispute there is no issue about the inclusion or exclusion of evidence so the standard is substantial evidence there just needs to be a scintilla more than a scintilla of evidence and as a sport knows that means the jury was free to disregard the testimony of shine so the testimony of wilkinson none of which was supported by a stretch of documentation and infer from that strong circumstantial evidence in the testimony of our experts as to how these devices operate how they can swipe any credit card in the world or any prepaid card that is imposed like a credit card and process the transaction through the system the same way as they connected it's computer against if you think about it from where i did she says they have a card system in a central computer they want people to be able to enter the data into their computer when they buy the car to activate it what did they do they didn't do with the prior art taught which was connect the central id system to every individual terminal when you do that you have to modify that terminal to make it do something different than it normally does or was it five a game that the software was on the phone  thank you for the question because it follows because i d t instead connected to water greens and all these other retailers central system or to a network lead to be why the data that the claim calls for goes from the terminal to that system and the testimony of all of the experts was including mr wilkinson their expert and mr schaffel agree no modifications are required for the standard device to take that data from the card create a message out of it and send it to that same central made and the fact that the type of changes that their expert and mr shameful talked about don't require reprogramming you don't need to reprogram a terminal display something on the machine so the jury considered all that we are there is substantial evidence to support the verdict on the prior art as of the sanction the briefs dispute what the proper standard is it was clearly a non dispositive sanction i think she was allowed to defend the case on multiple grounds the lower standard of cases like chill cut applies even if this court applies a higher standard of cases like clear value the record contains abundant evidence of severe discovery of misconduct that supports the court discretion toward this particular section thank you thank you i like to start very briefly about last point and there's a something that happens in their breaks that i want to make sure does not permeate the court's decision they accuse us in the race of lots of misconduct lots of misconduct that that does accord never found occurred that was not the basis preclude us from addressing the one licensed offense that was unique some of these cards but but there was no severe impact to their presentation of the case and the court because of the court never even consider whether less less  witnesses testified that there were modifications finally they say these devices send information to the next up or the next computer the question is which computer in the prosecution history they say that these devices innately send information to the banking network and that's what they