ablaze appeals from judge roberts and summary judgment there are three areas we appeal from the first is the one i hope to spend most of my time discussing with you this morning the three errors are firstly summary judgment of  obviousness finding the seven three seven patent invalid over a combination of the bobo patent with the image a line tribute that is taught in the patent specification the second error is that the court found it had continuing to clear tory judgement jurisdiction following a covenant not to sue and the basis for that or stiction was a potential concerns and perhaps as argued by doubt continuing jurisdiction over the five thirty patent primarily on the ground that so much money had already been spent by the party that it was too late to work the case by granting a company one of the things that  said is something very much like that just michel in and out was that what went wrong with that russian and what i think about it take place is pretty clear that the only exception to the constitutional requirement of standing occurs when the patent has already been determined what does benedict say that's the only exception it certainly made an exception in the post verdict they'd but i don't remember any language saying that the only time there's an exception well the requirement you know certainly that there is an actual controversy and ben attack the test that i can distill that is most relevant today is that there must be some identify i'm going to find out which raises an actual controversy judge or show your opinion super three were the circumstances might remain to be seen in many circumstances a covenant negate the suit everybody agrees with that robertson seem to think yeah but not in this circumstance because it was too late and he had the solution to  constitutional standing still requirement that has to be an actual controversy and then attack there has to be identified conduct which is in dispute there is in this case no identify conduct in dispute now doesn't argue did anything it's doing is a because there was a  in this case there was no guidance from tao on combining vocal with the image aligned tag and without guidance from the far east the court found that there was a motivation to combine the images on tech from the past two take gravity machine and time machine and all sorts of things but a bit more than that there was an expert witness who said everybody was working on this because the market demand was huge and the design options were right there staring everybody in the time when presented with a request for user controlled format it said that's not workable that's not simple but that the expert testified that the key was to make web pages more usable for the person accessing them that the exactly what this is all doing isn't it yes it is but that's really an expression of the desired result i mean here we don't we dispute and there's a dispute in the expert testimony whether this is a predictable combination known elements our position is there was no format id in a prior art so there's it's not unknown element that you're combining this is a new realisation of a new way to treat content in a client server environment and the district will ask them what they want why is that still knew nobody had done it there was skepticism at the time people were working on it and did not arrive at that solution will testimony supported the proposition it's the subject of a dispute on summary judgment that should not be resolved that should be submitted to a fact will it it can't be that any time one expert contradicts another that summary judgment is only getter for location of content and to dictate then the location of content that's returned but bobo had already brought the formatting control into the on line environment right there's a fact dispute about that as well your honor and self in describing moved to a different location page and that is fundamentally different by the way did you in any point do that in your seven thirty seven or i feel running things i never see moving the   six to nine there's a statement that subsequent coding specifies the location of the icon within the page so as to complete its overall formatting armas that is a reference to the image align headspace attributes that you just pointed out to the debt edition to judge roberts who gave to that term in claim construction and the claim construction ruling is not challenged by either a court the definition of a form an identifier and this is a page two thirty three of the record  layout which is location presentation which includes such things as as building highlighting etc i mean there is no dispute that as to the type of formatting that's disclosed by boko that was  but isn't your problem that we have summary judgment here this is you getting into issues of fact is to would or their motivations to present to the user certain option and whether that was well known whether it was being pursued being pursued is kind of a more for us factual when the answer your question your honor is no and it's no for two reasons first judge may be even more vulnerable on the jurisdiction point i understand you're relying heavily on met immune to say their jurisdiction but metamucil was dealing with a preexisting license and this is an offer to settle the very soon which is ongoing why doesn't that difference suggest that the court erred retaining jurors that actually your honor your question circumstances under which it doesn't for example if the couple is in some way to fish and as it was in the in the the aspects of resolution i wear case which this court decided recently well that that's not here were it was given well we submit that the covenant looking at the record the particular facts and circumstances that led to this conclusion so for example here we had a little geisha in that it got on for three and a half years it was going on a seven thirty seven patent nevertheless judge roberts judge said that in his opinion he said that it will argument transfer and that happens will deal with it when it happens but why would you assert jurisdiction where there is none well you say where there is none i submit that there is it here is what we know that there's no formal rule that when you give away how to not to sue even one of the challenges to me like you're protecting the parent company right now which you by your own words said we don't represent we don't have anything and it doesn't matter what benefit would be a court may not reach america that's that's correct your honor but going back to the point i was making a moment ago there is no for one rule that when you give a covenant not to sue the difference between the issue being considered by the court in the matter having been a little dated at the cost of lives of dollars for three years and then just before you are if i may without changing my case a ritually slam dunk summary judgment motion is going to be filed an anticipation with respect to the five thirty patent they just give it up but they can then sue other people later the district court judge said applying to totality of the circumstances many clips they won't get a chance to present that motion until the end of will discovery they will have had to have gone through the entire case you know many courts are fro front loading claims instruction issues summary judgment is often  party they didn't think that intervening weren't sued they didn't through they're not in this case the fact that they may make arguments in discovery request or in brief doesn't get them in the case  there may still be continuing jurisdiction so you argue that the pipe you're just going to be litigated anyway how do you know that the so you know this is a thirty seven year old how you know that well you say dick and they're going to go on and sue these other nine people how do you know they won't offer them a covenant be at that point runner but it isn't necessarily a bad point and i would say i would suggest that given it is courts language and superset about not lightly disregarding the way district court would characterize the facts regarding whether there's a lot of controversy the fact that the supreme court has told this court not to apply a bright line test and for change really is a bright line test that you want to allow the district court judge in any particular case to look at with the facts and circumstances and decide whether or not this was controversy in some cases it may be that when there's a more aftermarket willing there will be no subject better jurisdiction ah if a covenant is given after that in some cases there will be a desk a sort of thing that you should be leaving to the district court judge in the first instance to address and to analyze will the fact is as  matter jurisdiction yes it is and it's an ongoing about the authority of the court to act and it's supposed to be subject to the questions of whom doing what it what time and when and what is the impact of this potentially in the future based on assumptions and parties that already been part of the suit but may have been mentioned discovery those are supposed to be the determining due for go it right one test and allow that just didn't work which is in a position to see what's actually going on and how this is going to affect that words work and the work of other courts throughout the judicial system to factor those things making the ruling in that case and i would say probably that's not enough probably that's not enough but here judge roberts what is enough summary judgment motions have been bottle well let me give you an example in this particular case and this particular case  what they're going to do or not do in any key to their future cases that may later pan is no those involving there was news corp that is correct that is correct so the speculation would be that a blaze would change its strategy in the future so the question here really is those who court want to stick with the agree with it it's that the format id has to dictate the layout of the newspaper so there's really no dispute that the construction that alan braced the district court employees format i dictates the location and i think judge robertson employed that as well and can see it in his opinion in a joint appendix at one forty one where the judge says in seven three seven language requires that the format identifier specified dictate as dr bistros puts it the layout of content on the page so it's a red hearing and when counsel talks about formatting data there's no dispute that everybody knew there were tags that you could use in an h t m l document to locate content on the page what was missing and what was overlook in the full analysis is the format i received from the client that dictates the location content and so little bit of a shell game the district court had no guidance from dallas because down the bar that you could combine both with the image aligned tag so that's the important point about format two fifty two column eight starts at line thirty one in both says the preferences on how the m s g yes that's the server is configured for the user include options on how the messages are review with the simply messages for instance the user can vary the amount with type you know we're the type of information that will be supplied with a listing of the facts messages by selecting an appropriate option so it's not the the line is clear it's the patents already been invalidated what's lacking in this case is any identified conduct of news corp there's no actual dispute as between blaze and news corp because there's no identified product