charge to the jury it's in those boxes are not protected subject right independently or on or what is protect of all is the compilation that represents the selection and arrangement of commands work the way the the way the commands are distributed across the hierarchies for example let's go right to an example your honor if you look at the district court what i think is the really the heart of the district court j well order at pages age ten and eleven the district court refers to some protocol that she says that the district court said night have dictated as external factors the selection an arrangement of command so that page ten for example the district court refers to the zero s p s hierarchy the open shortest path first hierarchy now sorry compilation is the combination of multiple multiple word commands so for example you're honest i don't or the combination of different multi word commands across different hierarchies let me if i if you read nothing else and their rates are on a look at the gray brief pages fourteen to fifteen and note five and we give you all the evidence there about how we arrange things fourteen to fifteen note five i promise you if you go into the into the distribute it if you look in footnote five as a s p f we distributed across seven different hierarchies so if you look at our citations there you're going to see that we put zero s p s sometimes as the third word in a com bat i p v six show i p o s p f border routers sometimes we put i d o o s p s as the second word in the command sometimes we put it as the third word or the second third or fourth word in the command and what we were doing there is we were creating a taxonomy this is straight out oracle versus google it's no different from the taxonomy that this court found copyrightable in oracle versus google it's a taxonomy whereby we decide all right sure your honor so if you see for example in the blue brief on page ten there's a show hierarchy and you'll find one node just takes you to the term spanning tree as the second term within the show hierarchy command but you can look over in the spanning tree hierarchy a separate hierarchy and you can see there that we put the term spanning tree in is the root word that means that a bunch of nodes come off spanning tree in the spanning tree hierarchy the originality that the jury found protectable and infringed is the fact that we puts a term like spanning tree sometimes as in a hierarchy with a different route word and sometimes as the root word in its own hierarchy so the trying to this protected here is the choice of arranging and creating taxonomy is across different hierarchies and that was clearly instructive there's no question here that the case was tried an instructive on the ground that cisco had to show for infringement which we did prove in the jury did find that the selection and arrangement of the multi were command was original as you about that sure or whether it's a unitary thing so that the selection arrangement is original if either the selection or the arrangement is is protectable and it seemed to me that it leaves the about can you clarify absolutely around or not clear that the instructions are absolutely clear that it's instruction and arrangement your honor the key instructions are thirty nine and sixty one thirty nine is the infringement everybody understood and you could see that everybody understood it in the drawer or that it was that you had to be both or whether it was just left was strictly and it was absolutely clear it had to be both selection and arrangement but i agree with you your honor it's kind of one action by the engineer but it had to be selection and arrangement and here's why thirty nine and sixty one infringement in the sense of fair instruction both s court filtration order also said at thirteen thirty eight that there has to be creativity in the selection and arrangement and then thirteen at thirteen forty five the filtration order says there has to be selection and points to a selection of types of commands if you look at the red brief arista comes now on appeal for the first time ever presented this theory before and it says what happened here is function dictated the selection of types of commands we are not claiming to own types of commands we are claiming to own a particular expression of particular commands in a particular enjoyment that come soon becomes a particular compilation selection and arrangement of multi word command earth has effectively abandoned any attempts to defend the district court's ruling that you could find that sends a fair that there is a dictation of the arrangement of command so we win if you find selection an arrangement  find when if you find selection of the right thing the selection of the actual multi word command together the selection of the multi word commands was not dictated by anything in a prior weak in fact it's precisely because we can't rely on any single term any single multi word for man or any single high or that the jury could have found infringement only by finding we are original in our distribution of the  command terms across multiple hierarchies in other words let me put it this way the smallest protectable unit in this case and therefore the smallest unit that could be eligible for send a fair has to be a compilation unit it has to span at least it has to be bigger than a term it has to be bigger than a multi word command and it has to span at least two hierarchies so to go back to zero s p f your honor what i was trying to say the judge die earlier is that the district cisco use those terms with the glossary has the term router it has the term interface but nothing in those anywhere in the o s p f protocol says you have to put them in any order so in one command we put router  arrangement we win either way as long as you don't go with a risk as an acceptable theory which isn't a backdoor attempt to overrule oracle via google that they can win on selection of types of a man's type of commands or unpredictable ideas were asserting is that the inter tied behind our back and we've still got an infringement verdict we were told we could only prove compilations we couldn't prove originality and multi word command we couldn't prove originality and multi word and has even though it's been seen it viruses experts that not a single one of our copied commands relationship that is protected but there's no suggestion that the hierarchy from cells in terms of which one comes first or second or third is protected right i disagree or honor the very a compilation the claim to an existence of a compilation is exactly based on instructions thirty nine the selection and arrangement of the multi word commands as a collective as a compilation the undisputed that there were many different ways to arrange multi word to manage its undisputed that there were many ways this is why the jury rejected merger this is why you really can't find sense of fair based on functionality there are many ways to do your honor the the individual hierarchy is not protected well under the court's instruction what is protectable is the simultaneous decision of the engineers to have the hierarchy on the left on page ten and also to have the hierarchy on the right on verdict on the infringement side and if you take all inferences in favor of arab or take on the infringement side there's overwhelming evidence that first of all there conceded at redgrave eighteen and fifty nine that they copied five hundred six of our commands verbatim and there's overwhelming evidence that the commands we created never existed before we wrote them a list of experts concluded that at a twelve to ten so that the multi word command didn't exist before we wrote them we weren't allowed to prove that  multi work demands individually were protected but we were allowed to show and did and all inferences should be taken in favor of this verdict that we originally protectively selected then arranged the interrelationship among air commands across the dropped hierarchies as an independently protectable expression but arista conceded that we were allowed to go forward and show that the process for creating commands was related to each command expressions organization in the hierarchies and that's what we did we showed that the multi word command were created by the creation of a hierarchical structure we're not allowed to claim any one hierarchy but we were allowed to claim and we did show in the jury did agree that we had created a that was what the jury found sounds a fair corresponds exactly to what the jury found infringed and we are willing to fight on the grounds that the jury found infringed any significant portion of a protective wall compilation was properly instructed to do there's no contest here to instructions thirty nine and or sixty one and just rondo that would be my additional answer to your question about selection and arrangements arista did not object to the word and in instructions thirty nine and sixty one and in fact i would refer your honor to docket five nine seven and docket six o three at pages fifty and seventy six respectively arista actually proposed that instruction thirty three say in selecti you know during this selection in the range you absolutely are under you will find it in two places as relevant here it's all over the filtration order but we're just in multi working man's world now it's in the filtration order at pages thirteen found again at thirteen forty five at line eight where the district court says it is the selection and arrangement of the commands lined expressions into a collection that is protected also the case they try it on and protect ability because you can't possibly find that any protocol any functional constraint or any customer demand required how we arrange their multi work commands just can't be done or is practically waive that on appeal by defending this new theory that they can win if we were dictated in our selection of types of commands you can't go a test hypoth mans are protected will we didn't argue for protection of types of commands so any functional constraint on selecting the type of command can't be a sen knob on the television set might execute the volume function but the copyrightable instructions might or your design might say loudness volume sound or have a of something with multi words and an arrangement all i'm getting at is that type of command isn't unprotected like the we couldn't have been found we couldn't have proved infringement based on some types of meds we don't own types of commands we don't claim to own types of commands in group management protocol show display we don't claim to own a type of thing then we claim to own on the jury agreed with us that we owned and cisco verbatim copied literal expressions of our command told them look at instructions thirty nine and sixty one the true court told them this go can win only if it proves for present purposes or originality in the selection and arrangement of its multi word command line expressions and the court told the jury  instruction sixty one that arista must show at the time cisco created the user interface is external factors other than cisco's creativity dictated that cisco select arrange organize and design its original features in the manner that it there's no evidence in the record that could possibly rise to the level of substantial evidence that our modes or prompt error help descriptions our command responses or the compilation of compilations the other four compilations are essentially abandoned here there's no possible evidence that could show that anything dictated any of the other four compilations and more important arista has really abandon that at this point we say in the grave or even footnote four we note that we can look through the red  and you're not going to find any claim that oh well maybe the jury found sense of care based on the most and promise that this case comes to you were really in compilation number one the district court's instructions thirty nine compilation number one compilation of all the wor protocol the district court referenced that's a selection of commands the selection of an o s p s command the way we wrote at the command not the type of command was original to us if you look at the protocols  gimp at one fourteen and fifteen but if you actually go to the internet group management protocol cited in the in the district or if you go to exhibit sixty eight seventy seven which the district court cites there and i'll tell you the exact pages in the appendix where you'll find the glossary its appendix fifty seven five four four and four five and in the actual i g m p internet group management protocol  way we arrange the multi word commands to include those terms in different sequences different taxonomies across different hierarchies you've crossed this bridge in the s s o portion of the oracle decision you held that oracle had copyright protect ability in the structure sequence and organization of the a p i is there in a way are cases even simpler because we're about a tech space command line interface where about human to machine communication not machine to machine communications so there's absolutely no mechanical or programming constraints on how we wrote these we could've written any number of combinations of these multi were commands and distributed differently across the hierarchies that's the originality and that's not the sense of fair your honor i realize i'm going way over my time when i just want to say we have an alternative arguments that you need not read any of this if you find that verbatim topping is not eligible for sens a fair at all under the apple microsoft case and that's an alternative ground for a firm and that would allied all of these questions and we didn't wave it in our fifty thank you very much your honor going good morning your honor may it please the court venice i'm here on behalf of a wrist network the jury heard substantial evidence supporting good sense of fair verdict as i think the panel knows the jury was stru first we spent a lot of time on arrangement but arrangement was never presented to the jury this argument about arrangement why because the commands they claim were copied were not arranged in a particular way the only arrangement that was ever not not in this case because because after hearing two weeks of testimony judge freeman issued a deception order and a jury instruction which put out a play almost all elements of the user interface put out of play any single multi word command any command hierarchy any method of grouping commands under a common word which would cover what she's now arguing she saying that it didn't work plumes a combination of two or more hi nine what what i mean what i mean your honor what i mean your honor is that the case was not try based on arrangement let me back up a little bit i agree with your honor's interpretation and i think everybody understood that selection an arrangement is a single thing the copyright statute defines compilation as a collection that is selected coordinated or arranged in jury instruction thirty three in our set sisko didn't object to uses the disjunctive they would have screamed bloody murder if the judge had said you jurors must find both selection and arrangement that's not what what was understood what was understood was that since the copyright act defines compilation as a selection or arrangement the you need to show one of the other obviously a an anthology of poems that is selected can be copyrightable even if it's organized in alphabetical or chronological order no court has said you must prove both selection and arrangement are unitary thing that's why we say and if i understand what they're saying is they say that there is a selection here because they've selected a particular words to use cross different that's right that's that's that's what they're saying and what we're saying is that if that's the case since they resisted a verdict form that would have required yours to identify what compilation they found in french we have this black box and we don't know so the presumption has to be in favor of the verdict the verdict was sends a fair for the identical terms to use and different higher the overwhelming evidence from both our expert their expert millais witnesses your honor was that the selection here was dictated by the choice of features you put in the switch in other words john black our expert testified that when the manufacturer decides which of these industry protocols it's which is going to support then the set must contain the commands necessary to carry that function protected but every single command came directly out of a protocol that the industry had approved for use oh so the industry says if we're going to do a border gateway protocol here are the elements of that spanning tree storm control track etc they all come from various protocols that were shown to the jury for example for one thing are you able to show us which protocol correspond they didn't prove every one of those and neither did we what i can show you and list for you is that there were at least a dozen half a dozen protocols discussed with common phrase your honor but the point is that when you get past something like that that was widely used before cisco and you get to i g m p or you get the s and m p or you get these individual words they all come right out protocol itself describes the function as spanning tree and they adopted it directly from the protocol into their set of commands so our point is so the idea is that it's not a fair applause because it tells you th both within a particular hierarchy and across hierarchies you have to use the same terminology that's right it applies in this sense your honor it's two steps once the designer of the system these are network switches and they all have to work together and the network engineers are running them as a group so once the manufacturer decides i'm going to support the spanning tree function there must be a command that says spanning tree and because that's what the protocol calls for just from dell gavin cato to test fight if you're switch supports a networking protocol then the basic commands you need have to be there in the switch it was sexually undisputed even dr elmer author conceded after the sixth or of the protocol that we reviewed with him on cross examination that virtually all of the commands up and down in all these various sets were were directly from the protocol i want to take a separate slightly  both for the left him box and right that's right that's and that's what we argue to the jury is that it was compelled by the selection of the features and the features are all set forth the network protocols and the protocols defined the features in the same terms that cisco used now i want to make another point which is related judge toronto asked about selection an arrangement and as i pointed out the selection and arrangement issue never rose in this  everyone assumed that either one would be sufficient just like an anthology of poems and that's why the compilation definition in jury instruction thirty three says selection or arrange with they would have complained like crazy i think what they're conceding your honor is that no one would help me answer what i just i don't understand their argument the way you do i think what they're saying is we concede that selection alone could we c de that selection may have been shown by by them as the basis for the verdict and we concede that selection comes from these protocols once you decide what feature i think what they're saying is we never proved the arrangement and that you have to prove both in order to sustain our sense of fair verdict the problem with that you already anticipated which is they never prove any particular arrangement either why because the commands that they're complaining about were not a ranged in any particular way they come from four separate operating systems the arista commands they come from many different hierarchies they never put up a chart in opening closing or anywhere and said here are  compilation of arranged things and they're arranged the same way because there was no evidence and the only place these commands are ever actually arranged were jerks can see them are in the manuals and the manuals were explicitly found not we actually put a little bit over here and a little bit over there and that is why least that is what we mean by arrangement we could put it all in short mines and so even stipulating for argument say that we have a selection of all the times was driven by the need for interesting comply with standards how we distributed that terminology across different anything that that i'll soon have for sake of argument they never prove that as a basis for infringement that's one of the basis that we moved for judgment of a matter of law on the infringement verdict they never proved they arrangement whatever they now say it was because they never laid out for the jury but they also never proved that they had arrangement was copy that's the point is that they never put up a chart like pages ten and eleven to show here's our arrangement here's aristos arrangement they're the same that was never proven it was never even attempted to be proved why because the commands they were accusing do not exist anywhere outside the lawsuit they were selected by the lawyers turning point the trial during the deception hearing it's not just that the judge said hierarchies are out they abandon any effort to prove hierarchy as protected material at page thirteen thirty nine of the dissection or judge freeman notes and they don't complain about it they abandoned it why because they couldn't prove that a hierarchy or anything like it was copy why because these commands as you are just noted there are there to commands are not protect the hierarchies are not protected will and they had no proof that any so called arrangement that they're now arguing was copied and they didn't even make the argument to the jury you can read the opening the closing and everything in between there was never an argument that what arista copied is this arrangement that they have ginned up in their reply brief in the reply brief not in the opening brief it's nowhere in the record all they've done is taken protocols that were in the record and made an attorney argument now but they have no evidence whatsoever and that's why we asked judge freeman to throw the verdict out we said there wasn't any any evidence of any of this and after the dissection or are there was no compilation shown to the jury that could have been the basis for infringement she didn't deny our motion she said it's moving i'm going to support the verdict and what chief said was because we now have a black box verdict i can assume that the jurors found some minimal selection of some commands as original but as to those there's overwhelming evidence of sense affair from the testimony of the experts the networking engineers the people that design the systems that these things are dictated by your choice of features in your switch and the protocols that define and describe those and so for that reason that the vertical of the judgment should be affirmed i'm happy to take further questions from the panel three quick points your honor first the case was tried on the arrangement i was at the entire trial to it was tried on a range because that's what the district court let us do she tied one hand behind our back and it was tried on arrangement i prefer your honour's to the blue brief thirteen fourteen where we have listed all the evidence of how we tried the case on arrangement thirteen fourteen lists just some of the evidence about if you look at the blue brief thirteen middle of the page testimony about  how we organized it the aesthetic is the way the seal lies organized the sest are experts discussing whether to place a command in the show or ip hierarchy you can read the evidence at thirteen fourteen the case was so right on arrangement it was instructive an arrangement arrangement was what the district court allowed us to show and we showed arrangement across hierarchies second the features did not dictate the terminology judged you asked that in a question that i would like to answer that question correct the features did not dictate the choice of any terminology i'd refer you on as his just  suggested terminology to describe a particular function is that correct yes terms yes arrangement no and this is the core of the case your honor her protocols may have dictated individual acronyms but did you prove that the arrangement for example shown in the left hand are the ones copied by them or just at the same time i'm on your honor we i would i wouldn't respectfully  the commands in body are arrangement arrangement was to put them in this order show spanning three m s e configuration what was original and if you look at the evidence in blue brief thirteen to fourteen you'll see ample evidence to support our verdict particular function no your honor that's not correct you could have said show you could have said display could have i'm talking about but would suggest no your honor i promise you go to the glossary in the protocol and you will not find a single direction about how to arrange the terms in the glossaries nothing in i g m p says you must have an idea empty hierarchy that begins with i g m p is the root and we didn't i d m p is not a root term in any of our hierarchies we put it in the show hierarchy we put it in the ip hierarchy we put it in different hierarchies nothing in the protocol might have told us use the term i d m key but it didn't tell us where to put it across the hierarchies and version and it would describe what function that was and suggest that you use that terminology from your honor that is the heart of the case and that is one hundred percent incorrect incorrect that's why the jam of order is incorrect ten if you go to the glossaries for the protocols they say nothing about the arrangement of the terms we could have done a yury we could have taken i g m p which has four query terms in the appendix and we could created a query hierarchy but we didn't we created non extensible hyphenated last number query count terms so you're out of the core of this case let me say it as simply as i can if you find out that the use of a single industry acronym industry protocol term like o s p f or i g m p or a single term from a protocol glossary if you find that putting those into a computer user interface is enough to create sense of fair you will have destroyed copyright ability for user interfaces and you would have done through the backdoor exactly what you said my friend couldn't do through the front door in oracle vs google if it were copyright command of a particular function what's assumed but that's correct then there's no originality using that particular terminology right your honor there would be no originality if the industry protocol dictated the arrangements but the industry protocols did not dictate the arrangement don't take it from me take it from arista the expert dr black who said and this is a crucial admission that twelve to ten none of our copied commands in the order they were written existed before we wrote them that means no protocol ever told us we had to write our command in this order referring to all the hierarchies that comprise the command and i want to refer your honour's to a very important one is that one needs i mean that could be set forth it's not set forth in an industry protocol your honor the term show is in an industry protocol the term i p v six is an industry protocol i g m p has terms like start very interval in the glossary but the crucial thing is at the time we created our c l i know protocol told us how to arrange things in the hierarchy and there's a couple of crucial places in the record i want to refer your honour's to first of all my friend referred to a thirteen thirty nine that this filtration order and he said hierarchies were out of the case they are not out of the case the crucial he said it was a turning point in the trial and indeed it was that supports our case for reversal the district court said that cisco may with a recess agreement at thirt thirty nine show that the process for creating commands was related to each command expression organization in the hierarchies and that's what we set out to prove and that's what we proved when the jury found for us now they come in and they say oh that was dictated by the protocols but there's a disconnect the protocols didn't tell us how to arrangement arrange these commands and i want to refer you to four key pieces of evidence that i commend to the court mr dude of aristos chief technical officer sequence and the industry protocol didn't say you must have an i o s p f hierarchy with the s p f is the root term and we don't we pop o s p f into seven different hierarchies at different places in the order that's the crucial that's the key to the case the see it's h p s user manual there's three columns that show you could do the same function three different ways and we had copious evidence that you could do things different ways mr shafer from juniper said i did it differently at juniper i arranged my commands differently we had mr blank a tramp and from h p through from page fifty four three ninety was admitted and he said oh yes different engineers in the same company could run a range the commands of crossed different any in any particular hierarchy and this illustrates that you can do it three different ways it was admitted by a risk his own witnesses that you could arrange things in different ways that's why there is no sense of fair here so your honor if there are no further questions we