your honour's my name is john quinn and with the permission of the board i propose to address three points first under this court's teaching in the case between these parties earlier this year to obtain a preliminary injunction apple was required to make a clear showing of substantial and immediate irreparable harm if their preliminary injunction were to issue whereas here irreparable harm is predicated on lost market share that lost market share must be substantial that apple did not prove in the district court below to the contrary the record evidence which kept the lost market share can five percent refute any such fine but this case unlike some of the others also includes this is the court's findings with the steps to downstream or whatever term it is people use in terms of the process so doesn't that enhance the importance of the point five percent at the end of the day i don't think so your honor what we're talking about there are still sales potential downstream sales of to a relatively small number of people the theory was that our network enhances the impact it doesn't hence the impact i agree with that but we're still talking about purchases of related of products by a very small number of people it's we're talking about five point five percent of the market and i suggest hero project and i think this comes under the category of less best laid plans of mice and men the record evidence says that this product was not very successful it only captured point five percent of the market and if anything that sales were the client  they anticipate it to go up why can't apple rely on that and evidence that p i yes they projected sales in the first year of some nine hundred thousand plus units but again we're talking about a market where and i think perhaps the district court may have gotten distracted by some of these large numbers we're talking about a market where the total sales exceed over one hundred million units to the i think the top ten vendors this is still a very very small percentage and the evidence in the record is that  smartphone sales next to sales as i phone sales went down after the introduction of the nexus phones so there is simply no evidence no record to support sure samsung had plans thought this would be a hero project or a product and it might be your honor but actually the rep there record evidence here is that actually nexus sales went down from the fourth quarter of two thousand and eleven to the first quarter of this year and they sold at a higher rate in the fourth quarter than they did in the first quarter so the evidence t only evidence that we have before us now is that this is a product which is at most at lows capture point five percent of the market now in that quarter point five percent but the evidence of record suggests that the sales are going up dramatically after that and insignificant but this particular phone which we're addressing here is it's insignificant in terms of what's a top what's the appropriate number for a market share that would constitute irreparable harm i don't think that it's possible to lay out any one general rule of general application i would suggest the following that the court should look at the facts that are similar to those that were recognized in other cases where this court has found irreparable harm with collected those cases i think on page a six to seven of our r here you're on this is a case and i submit neither party has sided to this court the case where pure loss of market share constituted a finding of irreparable harm in every other case there is something else one of those other factors and here we are talking about the most valuable maybe arguably the most successful company in the world record evidence is that capture over forty percent of the smartphone market seventy five percent of the industry profits there is simply nothing in the every galaxy nexus all the stuff that's relatively new kind of difficult to develop a track record through data to support mission what are we to do with that well first it's not new the record evidence is that the quick search box feature has actually been on samsung telephones since july of two thousand and ten that's the young suit lead declaration of the district court sided that fact and discuss the declaration of the opinion at a ninety three nobody noticed this movement right well the unified search the ability what's at issue here the ability to search simultaneously across browser and people living the existence for some time they got their past their patent issued in december of last year but it had been out on samsung phones for some time before that but i mean is it is a possible to prove causation as this court said i think that has to be we're talking about this is a company that you know they are students one of the most elementary basic elements of most types of plants they don't have to prove customer survey evidence but they could if possible to do that they have the wherewithal to do that it's possible to look at marketing and advertising materials what's being promoted as the nifty new feature by samsung samsung are running ads saying you can search people in a browser with one quick search in a quick search box that might be some evidence that this drive sales there was a complete default on directed to consumers this is from a technical manual for people who write software for android programs and what that says is that search is a core feature and it describes a quick search box that is not evidence of why people bought the galaxy perhaps a stronger case because that would at least deal with the issue about i'm at the end because the issue is what drove purchasers of nexus not why did people buy i phones that's a fundamental error that the district or why that the circumstantial evidence i serious is only a unified search and nothing more and the evidence that apple has shows that this is why people buy them because they want the unified search unified search is just the bees knees and why wouldn't that be  evidence if that were the can have and that may well be some evidence well i mean what we're talking about i could spin out other what other things to fill in the hypothetical what else does nexus have to do people know that nexus also has this feature there is no evidence  us even goes into the market just before your time runs out again just a ending the key sentence for me at least in the district court's opinion regarding the next seems to be the sentence on eighty five when she says apple has shown that the i think it was not that statement is not supported by the evidence because if you look at the evidence including mr raines out there thirty six witness about what drives purchases of series he says it humanizes the smartphones that you have the ability to voice interaction feature that is humanize the smartphone you have something you have this virtual personal assistant that is i submit that's what drove the purchases of siri but again i don't think that's the there's still nokia there are still research in motion and there are still there are over three hundred manufacturers of android phones and we had evidence as to why people buy android phones like nexus that was in the record which the district court this regard that m is apple's own service as to why people buy a nexus an android phone is probably people want androids people want to they like they just like the ice cream sandwich where they laying on the ground that they felt the patent office unlike the six zero four patent and rollei does not teach having searching with different touristic algorithms in each field so yes we do believe that that is a disclaimer but again we don't have we only have to raise a substantial question with respect to the issue of infringement here and on this this claim construction and i think that your honour's can look at the plain language each meaning each this the language here is different in the race to the net where the language in the claim was each of a plurality of fields if that were the language here i wouldn't be here making this argument but it's just plug in module is different i know that the general rule is that you don't look at specifications you know citations of a particular embodiments and specifications to limit plans but here that is the only place where they squarely address that issue and if you go to the claim language they rely on associated shuras stick of course that's on all fours with different serious sticks each can make each can be require a different terroristic and means age is different the specification says that you have the prosecution history where they went out of their way twice to distinguish and really on this ground and we have the decisions of those score better decisions and the  regents decision both of which i submit support our interpretation by the way is a pure question of law and i submit we had a minimum have raised a substantial question which is all we need to do at this point in order to defeat the p ok i think we have your arguments opinion from three minutes beyond your allotted time when i think will do is will we store you three minutes of your rebuttal time and that puts you six minutes ahe market share point five percent to their your honor for two quarters remembered the galaxy nexus started at a standing start so it was zero on december fifteenth of two thousand and eleven when they put out this morning this was one phone sold gangbusters it the top selling service phone of rising to the top selling phone sprint it came out of the box to capture that in two quarters and they're projecting what is point five percent we back up on that's the population of idaho is point five percent of the united states mr qu that's already probably been superseded by something else the galaxy i now the s three is now on the market you're honoring that points up an issue as this injunction this market moves fast and samsung here wants to get that trial if you thousand and fourteen and between now and then your honor there's there's three pieces of evidence i'd like to focus on that first is the syria evidence and this is important circumstantial to judge moore this goes to your question you asked mr quinn what is the evidence show that siri was just unified search and people were buying it for that reason that's not only what the evidence shows that's what the district court found that page eighty three citing dr polish is deposition which appears in the record of a nine zero nine where he testified set aside speech recognition siri what matters to consumers  excel for isn't planing a unified start combining a particular unified search through one interface to search locally and through the network so just to that point i mean the just report one of the two sentences that i read that kind of being other there's no evidence the record that there is any non infringing way to do unified search in this instance that is put in one of the inputs have to go out to multiple search areas and return an answer using your wrist if there is no other way to do that this is a really cool market i mean fox if you rely heavily on which the district court relied heavily on is is considerably different in this case with respect to market share price i mean they have i mean at least i don't have the numbers in front of me but they're is not available at least some customers are going to buy the apple for the apple i phone four s in this in this point five percent of their projections and these were just some random marketing projections these are what the quick came into this record and asked for a bond to protect them from the junction they said from june of two platform a significant number of seventy five eighty percent stay on that platform for life so that those customers are stolen away from an apple by the infringing device and move to the android platform apple may never get them back which means not only do we not sell the i today but tomorrow we don't sell an i pod an i pad and i'm at the i tunes songs apps well if you know that you can i'm sure you can get a damages expert that can calculate all of that as you well know when these patent cases damages determin we all decide how much you're owed if you win on based on in the damages phase of the trial well first your honor judge co looked at that and found that these would be incalculable or from the district courts perspective that the finding of fact second these defendants would come in incapable which is the network effect again an undisputed finding in fact it is reported in this kind of environment the number of people on a platform matters because it drives development of future applications so forth and once you drop below a certain number the platform is point that argument is the point is the more people in the network the stronger the network itself so every customer they take away is not just the sale of an i phone not just sales downstream product but a diminution of the network and she ma even if we're doing only a head to head comparison between i phones and the gallon well that's why it's the first question that they get the headaches various of the galaxy nexus versus the i phone four s the top of the line i phone there are smaller you know less full featured i phones just there is there are believe there is a citation in the record in the confidential part of the record your honor that i can't i mean you keep harping on the point five percent number not being right and that's already out there at this point five percent or so then the question is so what is the roughly twenty five percent in the actual data is in there in the appendix i said and by the way i don't know what zero point five percent a million phones a quarter of a billion dollars in tax revenue six hundred million dollars in future revenue we're talking about a billion your market share there are obviously things going on holidays and so forth in there but if you look at the overall trend lines and dr del toro are expert testified to this it is clear that samsung over time has been gaining ground on apple it is through the sale of this other product then as you look directly at the galaxy nexus board spent a lot of times detailed findings here on what drives the sales here of the start of cereal or there are three pieces that it's one of the circumstantial evidence from the siri sales and i would like to pause there because if we look at apple one remember the court affirmed the finding of irreparable harm hence the eight nine design patent there at the end of the opinion and a lot of it gets talked about beginning of the opinion where the court stabs because the next  requirements at the end of the opinion the court applied it and said design matters to tablet customers not to galaxy tablet customers or to i pad customers but to tablet customers at large because this is head to head competition and so the customers unified search matters to smartphone customers and we know that from direct evidence of the tablets there's no showing i mean she says she says and it's of course a feature just like i would imagine having a this is a document google developed android and put this out its developers how do you sell products to these customers you give them search capabilities because search is a core user feature that's google's words and if you read through the end of that same document which appears a one five five the record you will a says please write your programs developers with this search capability to use it as a plugin model to see precisely described in this patent so that you can sell more of these things to these customers because they like to be able to search the things on their phone and third is we have excuse me drives demand that can be shown to which you can either show that it affirmatively drive the demand people go out and seek it or that it negatively dries and that is the absence of the feature would lessen consumer demand simply doesn't challenge that legal standard on a eighteen as apple's expert stated during his deposition right a lot of serious value comes from its comprehensiveness and the claimed features of six zero four hour important to achieving that out to the claim construction question surely i don't have that i can't find it in front of me but my recollection is the correct me if i'm wrong that the district works in doing her plane construction reference the prosecution history thing it supported prosecution history because i think the sentence and i think this was raised in the earlier argument with your friend is seems to need to go quite mad direction of supporting the position they're taking place right it there the distinguishing the type of searches being made has nothing to do with this question of each and if i could just directly answer the each question i think i can make an idea and i just can you just tell me what about this quote that i'm looking after wants to my mocking up that supports the statement you made yes your honor if you look at the very top of the fourteen zero three and really teaches at the processor can use the solution to a constraint satisfaction algorithm to formulate a search constraint quest and employ any appropriate no you're on of the two different things or the limitation is a plurality where in each of these things are the infringement happens once you get to two and the reason that you don't look at the entire apparatus of believe just more first question of understood it correctly is that this is a it's an apparatus claim but it's a comprising transition therefore this is included but not limited to you can have more than one plurality of course the spec actually discloses multiple  which the court made any of the decision to answer some of the questions of this apple smartphone market share first quarter of two thousand and twelve was forty five percent the court can see that from a eleven of seventy four eleven seventy eight in fact apple's market share in each quarter is collected in the record that a one five six eight there is as i said there is no evidence concerning relative market shares of i listen to counsel and i take it now there isn't really a dispute that the maximum market share for this phone was point five percent there is no other evidence in the record we're talking about minuscule sales we're talking about in the fourth quarter two thousand and eleven the first quarter of two thousand and twelve of a grand total of two hundred fifty million dollars in sales for the nexus phone he he doesn't agree with your definition of market that that's what he's saying he's saying point five sure that that i may be wrong but that's what i say i don't i don't think there is any evidence at all that these two phones are competing only competing against each other to the contrary i think the evidence is that people make a fundamental decision whether they want to market for year one hundred and five million dollars is the evidence before the court that the i phone in the fourth quarter along i phone so nine point three five billion nine point three five billion versus accept by hypothesis that if you buy an android phone you're more likely to buy an android phone and that will be harder for apple to form also that you're more likely to stay with them and go and actually have exactly the sort of you you market in the data shown that you're increasing your market themselves you know what i can i know you can you can measure market share in many ways domestic shipments domestic consumption production numbers but one of the best wa shirts and that i think these are the numbers we're working with but what does that tell us the stickiness and this phenomenon that new market new buyers are coming into the market find the markets going to expand but what reason do we have what evidence in the record is it that can be pointed to that suggest that these new smartphone purchasers are likely to buy nexuses at a higher rate than point five percent there's nothing the market may expand but there's no reason to think that that minuscule and i'll say that i think your argument by both sides is excellent i think the briefing in general is excellent with a huge exception and huge exception is ok precipitous judicial intervention thermonuclear dimension ubiquitous patent litigation threatening markets