know your papers organized there i certainly hope i did well i know close owners unsettling to begin an argument when you don't know where things are so it's good to have time with lawyers to get tables in order  both represent cara technology and i will welcome i'm going to attempt to make three points in the time i have before the court today the first is that the district courts claim construction was incorrect because it improperly imported limitations from the specification evidence into the claims improperly narrowed the second is that even if that construction focusing in particular on security and security addition to other limitations which we call the creation limitation and the validation limitation those are the three terms the district court's air was essentially saying to each of these three terms the second point all attempt to make relates to carriers motion for judgment as a matter of law that preferred by that stem product infringed and it's our contention that even if this court were to accept in its entirety the district court's claim instruction nevertheless there is no substantial evidence to support a jury's verdict of not infringement as to the five product of those selected claims and then finally i'd like to touch on the district court's dismiss breach of contract claim on summary judgment we contend that the district court acted improperly because it resolves several disputed back questions so each of those areas is harmful each affected the result or could affect the result so that judgment cannot stan documented respond correct and in the courts claim construction order she actually recognized that that really was the plain meaning of the term the parties didn't have a real dispute about that that's a one on nine of the record where she talks about security  with the serial number on them and the serial number would be also at the top of the sheet it's only when the user put this into their computer and requested postage that these markings get printed on the document and so the seat at the top there is this part of for instance t or which it contains computer data so in our view this was what the security industry actually was and we needed a construction from the court so we could show to the jury where this was found indeed product they didn't get that instead they got a construction about how you create a security and issue using the key using a keep and that construction was wrong in two ways first no key is required at all to create a scary addition in these claims in the claims that were certain at the trial you read the claims you'll see there's no mention of key now key is mentioned in other claims and you better what you wanted to incorporate key into his claims did so explicitly the fact that he didn't in certain claims means that it was there to require a key to be present in order to show in print also has to be embedded in the preprinted data itself so in other words under the court's construction it's not enough that there is a preprinted data on the form which is what the claim of the claim requires but in fact is preprinted form has to be a key generation of the security and to show and it has to be used in order to validate the security edition so we don't dispute that that's required of the preprinted data the problem is that doesn't have to be a key there are other claims directed to using it keep for that purpose all these claims require is that you have prevented data on the form and that prevented data be used to generate the security in disha and then when it comes time to validate that security mission for instance at the post office that you incorporate in some way the preprinted data in the process of validation that neither of you is the proper construction of all three of those claim terms but we didn't get that construction from the district court instead we got the requirement first of all there was no explanation about what security industry was at independently but then second there was these analysis unnecessary limitations that were injected relating to the fact that a key has to be used and that the key had to be incorporated into the pre established data if you look at the claimed languages i pointed out it's clear when the inventor wanted to import use a key he said so explicitly and so there are numerous claims where that's true in fact it's true of every other claim in the past every other claim other than the ones that were  i'm getting one very magnanimous today but i think in fact the evidence presented at trial showed that there was no question the previous five infringed the claims is properly construed i mean there's really no dispute about how this product works it's it's it's elements but what i would say to that to that to the question is under the just records claim construction is key you do not have to be cryptographic and the only evidence that was presented by the other side expert was that this is not a key because he has to however that instruction included language that says key information is information comprising a key ok then something that contains a unique validation code required for authentication so in that construction there sort of an implicit definition of what key is but that there were arguments presented as to preview five to the jury relating to that construction which we submit is relevant to the some of the selective claims because and you said that the only non infringement argument they made was the absence of a cryptographic key in the previous high prada yes that if that is true and if we agree cryptographic key is unnecessary according to the claimed then it might be possible to give you everything that you're asking for i'm assuming when he three ends up in about ten seconds he not going to agree with your characterization and i'm hoping you can point me to a page number that would fancy disagreement if there is one and then maybe i'm wrong but on that's true and that would be fine and i mean i'm happy to do that at it from the noises i'm here and i'm sure that that is exactly what's going to happen so all responses to that argument in my rebuttal time i see that i'm into my rebuttal time but i do want to just touch briefly upon the summary judgment and purport which i need right because mcdaniels was what the judge relied upon you to be security and did not inform the claim construction i don't know if you're aware of this but it is completely and utterly out of order and most of the relevant pages you cite in your brief are not and they're ok so you're was focused of course on the meaning of the claim text itself the specifications primarily of the prosecution history it was not terribly enlightening so the majority of the argument was focused on what to the claim terms me to answer your question it's my belief based on of course i don't know subjectively what you thought of but it's my belief based on the evidence that was submitted in the questioning language ok now suppose that once i actually get mcdaniel report i find his report to be something with which you know i cannot find clear error if she relied upon it in reaching her construction yes let this be a good opportunity for us then that credibility determination if you and professor mcdaniels testimony as well as out of professor carry me to this here is expert is in the appendix professor mcdaniels testimony  it's ages eight eight seven nine four to eight eight three seven and then following a short break testimony professor midday and then again  for two to eighty seven to the market here and this is the market hearing that's correct your honor most of what i find in her i don't find her referencing mark in hearing testimony anywhere in her opinion i find her incorporated into the security and language certainly certainly oh but there are basically arguing this claim differentiation argument and there are a couple of responses to that number one where we have a situation here where the claims terms two interpretations of the specification which don't actually hold up he never addresses the terms of art issue that professor mcdaniel brought to the table and proffered to the district court plaintext itself uses terms of art not he submitted which we hope to get to you and garbled format and it is testimony of the more than hearing he made it quite clear that two one of skill in the art in the field of secure systems design which both sides agree is the expert declarations for the record is that correct yes and both your expert in their expert testified for the record that's correct or to what extent did these declarations and testimony opinions than he did in the declaration because there there was a great deal of testimony the work of hearing where the declaration subject to cross examine at the time they were to examination time they were taken yet the declarations security and disha created in part by him permission contained in priest that rich media data you don't just keep that in the media data is the serial number right there's no dispute over that the serial number on the d not created in part by the use of that serial number on your label well ok so are we are we looking to the infringement issue then or playing instruction data but that's not actually true because the court's claim construction as well as the that opinions proffered by fresh mcdaniel which carol so focuses on in this regard allow for there to be just don't follow that line of road it created in part by language is entirely if what if what you're asking is whether the court read out in part and partially if that's what you're asking then the court really don't get rid of somehow imported in here and you want me to rely on mr mcdaniel because he's an expert in the field and nobody is disputing that he's certainly an expert but i don't see how he can push that limitation into disclaim  the jury could find no infringement based on the net stance user's computer not being programmed to create a security and issue under control of data on the net stamps label sheet serial number that's one ground  here over the other potential breach the thick and separate breach which would be the new the information well there was no evidence submitted opposition to the summary judgment motion to create a dispute a fact on that and in fact it carries opposition  of the earliest they're talking of not about the note taking but clearly that paragraph was pertaining to you seem to me the youth of the confidential information and seem to be contained in their summary judgment  actually made an argument that they couldn't demonstrate any damages and that was one of the reasons why there summary judgment should be denied and i believe that was their response but there was no evidence there was proffered in opposition to our motion and there was no argument that was made at the hearing in opposition to stamps dot coms motion the use of these or be the use and in addition it doesn't really matter because under the case law that we cited which state did not effectively extinguished primarily the interim medics case  there is no kind of continuing theory of breach of contract or reach of contract in the non disclosure agreement context once it was breached it was breached they knew about or should have known about it they didn't proffer any evidence to  controvert out there for summary judgment was proper on the stash limitations it and of course on the independent ground of the failure to well on the independent ground of the fact that they disclosed their supposed trade secrets arguments that they made but i want to go back just for a moment to claim construction if you judge murray has introduced a very interesting question into this discussion i'm sure you've been following it out the judge essentially set it maybe paraphrasing but she didn't find the expert testimony of markham and particularly helpful so it's our contention that she probably didn't rely on it very heavily at all but however the problem is that when you look at her claim her and she starts talking about security and she's using really what's coming out of the declaration of mr mcdaniels and ignoring the declarations of mr dr caried it's so she doesn't really explain it she was making this decision based on the expert testimony i would have expected to see her at trying to explain why it was that witness what dr carey media said about the how security to share created in the field you know how that was inconsistent with what mr professor mcdaniel said why she was choosing to rely on one expert over the other she doesn't think that missouri is based on your assessment of the record and what the district court judge said it appears that she did not in terms of claimed instruction hang or had an expert testimony welcome on one issue all we have to go on really is her opinion and she does sort of rely on the history of secure systems design i think that's mentioning in the opinion of one point and the only one place that could have come from was from the expert testimony so we testimony somewhat along the lines more with trying to do that's where i mean it's architecture in this case can be decided without ever having to look at the extrinsic evidence because this does the claim language itself is clear you only have to really it read the specification just read the claims and you can see that key isn't required in the ones that we assert it because when key is required it's there now let me move you to the other question let's go to the moment that the crane construction issue is off the table or is there anything else in this case that night to poor the theories or to none i mean well that's good that's a sort of a tricky question if if in fact if this court modifies the claim construction broadens the claim construction then verdict of not infringement on this narrower construction doesn't doesn't now mean that this court can defer to it if it modifies the claim construction order to make a broader that's cases like cardiac pacemaker an echo lab make that clear so in other words once you've identified an error claim construction as to those as to the rest of the five then the only proper thing to do is to sit in that case under the new claim to truck back for retrial because it can be said that the new claim construction to change the result something and the other has to do with i don't know we can give you a different computer home if i do know that i have one so i think those actually are two related related points and really what what what i think the argument is is that there is no independent locates the claim talks about an independent location that's doing these things that's creating security and i think his point is that there is no independent location because what they actually do is they split up two functions and they're in their actual product so they have a server on their headquarters that calculates the date of the digital signature then they send that back to the client p c and that's the thing that actually spits it out onto the printer so they split up the functionality into two pieces and so they're saying that not there is no single one of those pieces that does all the functions but my point is that that doesn't matter because all the claim requires is that those functions be performed at an independent location from the printer so the fact that they're performed by the stamps is sort of arbitrarily divided as functions up into two different computers that are not identical is irrelevant to the claim the claim just requires that those functions be performed apart from the printer independent location for the printer and there is no dispute that they are so in other words hear what you're telling me doesn't make me all warm and fuzzy and happy thinking that young and here it's clear there's no other issue that might need to be resolved yet so this one you're right it's not brief or if it is it's not brief very well and it wasn't actually to me there was no claim construction this court can make a decision on the record isn't going to look a should be one that doesn't mean that that that it can't be anything it's apart from the printer i mean in our view the latter is correct and the reason for that by the way is that you know the applicant didn't want to claim what was prior art it's these postage meters right that it's combined it's a single device that prints postage sure the court has one and everyone has probably seen one so this is different because this is the invention is allowing the user to print at their home p c so that was really what was trying to be distinguished here is focusing on the p c ten you know the other point is what they're really arguing about the sending limitation is that so another theory of infringement which i didn't articulate very well is that everything is actually performed by the server it's self the stamps dot com server except that the stamps dot com server is obviously not connected to the printer so it actually doesn't argue perform the step of sending the security and disha it just doesn't do so directly but that's ok because the claim doesn't require it to be sent directly so i did so i think i addressed the question that you had for the last time which is that if there was a bing claim destruction certainly for the five there has to be a new trial because you can't so this isn't this isn't kerry's motion we say stance breaches of the india caused damage the undisputed facts of the stablish this stance and then one made use of confidential information that was disclosed to it in two stamps a little even more realized this information so that's the two breaches we're talking about and also if you look then at the actual hearing itself so these various motions were decided at a single hearing and this is a twenty four eighty seven in the record we tempted to make very clear to the board that there was a difference between our motion for our motion for breach which was based on the note taking and this other issue which was misuse of competition nation that's clearly distinguished of the judge of the summary judgment here twenty four eighty seven