the next case before the court my lower gaby versus the amazon fair notice under eighty eight to give any authority for that proposition your honor this is just basic fact what happened in this case is well it's basic fact that firms assign say to somebody take a take a look at this if this could be something that you don't have any any proof one way or the other what that money has already is in with language rather than building records as alleged by my lawyer gabby is not take a look at reply to that our opposition to that was that yes we did take a look right here at the complaint the court of appeal for them for the district court refused to didn't address that at all said no this was not a list we filed a request for reconsideration and we pointed out that this was alleged in our complaint and they came back and they said oh well that's a little bit different we're actually we're line on other grounds for the attorney's fees what happened was then we got the billing records we then applied to the court and said you attorneys fees should be awarded in this case in fact amazon even all the district court and said you have not raised a good you've not answered this question yet the district court came back and said yes i know that was over a year ago i stuff think that's from first well the fact of the matter is your honor we did point out it isn't our complaint we addressed this in our responses to the summary judgment amazon misrepresented to this reports of these people never raised this period we wen us what you put on introduced or submit potential evidence that says if you're going to buy through there you click and what do you get do you go to then one of the product pages  with the reason i ask is it seems to me it could make a difference if if it's right that the particular theory of palming off requires that i ask for a mile and gabby product and such somebody gives me and the little inset picture at five ninety five ninety one i think it is doesn't say who who it is but the other product pages in each case as far as i can tell does identify particular kind of passing off serious opposed to other misleading or something other kind of forty three a series but for passing off it could well be that the customer looks and says i like that product i have no idea who's making it but i want that that and then they somebody sends them that you know in exchange for money not that that's exactly that's exactly the difference they don't send them that they see the product out there they say i want that is absolutely correct judge talks this but you're just running through the phrase they go through the checkout process without discussing what pages appear after they click on the initial was that with respect to certain products in very small print it says you know sold by or supplied by but that does not appear in the in the jack up process that appears when you look at the actual print page in very small print and nothing they never disputed there is no dispute that when you see our product you see picture of the genuine product you buy that product you think you're going to get that product and what happens is they ship you something else that's classic me off my client was getting blamed for the deficiencies of somebody else in the blue griffith twenty five is say the sales of the qs products are essentially consignment sales but argument we're making is the word sale includes all sorts of transactions that this court recognized in the supreme court to recognize does not involve it's a transfer of title from the seller are you going sealing that they're not in responding to the judge of malice question that they use if she has specific requirements for can simon sales you said well we're not arguing that patent is a direct infringer issue before this court is now the district court says that unless you are the person transferring title unless i am personally transferring title i can either offer for sale  did was this record told the jury i have already determined that amazon does not sell that was not with our consent that we do not stipulate to that did you oppose that in stride as in that's on the jury instruction i think of page eighty six did you here's a here's what's confusing hadley's right there are two different road relevant here two different ways you might come under two separate they might come under two seventy one and one is amazon was selling the other is amazon is offering for sale now in  response can be read as limited to offer for sale not say zero might be read the other way not tiredly clear to me the district court discussed only the offer for sale p and said i can't give summary judgement to amazon on this because you might be able to find offer for didn't discuss the sale but then become time for the trial and the jury instruction is given said i've already decided the sale question now if the court decided the sale question it seems like a fair inference that it did so because he understood your opposition to summary judgment that's not really never stipulated to the idea that because of that they can make no sale or offer for sale i want to get in one and one more question and that is it thirty seven of the blue grave you say that i'm quoting amazon tacitly conceded that the passing off claim is supported by the facts but you don't cite to anything for that proposition thirty seven at the bottom and running over to to thirty eight but there's no citation there either and then there's nothing in that paragraph put up by the third party sellers who were offering and selling the pillow cases there's no evidence in the record that anyone that purchased these telekinesis thought they were getting milo and getting a product there's no evidence making that connection they didn't put any evidence from the purchaser of the pillows and that and that evidence that he talked about that the judge didn't permit him to introduce a trial about complaints about the quality of the pillow cases if used amazon you can see you probably familiar with the  review feature on the on the website but none of those complaints were directed to work my own get nobody ever thought they were getting a mile and get a pillowcase i just thought they were they thought they were and were purchasing children's pillowcases from the or before the district court where any purchaser of a mile of a pillowcase all cases that were sold on the thirty amazon dot com website thought that they were purchasing a milo and gabby product or thought that the advertising copy that was that was that on the product listing pages that we're looking at in the record were advertising mile and get the products in fact to the contrary the evidence is that you disagree that the photograph itself a picture of the children is a thing of value it images loaded onto the amazon website by the third party sellers and was i'm like well you just say that it's loaded by the third party telling spec at least the briefs below say that in the discovery ads it in fact it's amazon that picks the advertising material that's not that's not the that's not quite right your honor i believe that the way it works if you want to sell a product a pillowcase earlier this morning and you're a third party seller you load the image of third party seller on the website that was very clearly the testimony of mr code or perhaps what you're referring to is once once you've done that once you've created a product listing amazon in some instances may say may send out an e mail advertising your advertising the product or their mid maybe a product placement ad on a website like if you particular view or right yes so in other words they give you that thing that gets loaded when you when you click on other sellers are available but the thing that's on the main page that referring to is what i was talking about with the targeted e mails and the banner ads but even there the images that are supplied and even that e mail or the banner ad are the images that are supplied by the third party sellers and never supplied by by i mean i don't understand why this is such a big deal for amazon don't you have indemnification agreements with everybody that that goes on your website with the sellers yeah yes so  isn't there some interest in and protecting purchasers from from rogue sellers who would engage in conduct like this and you could simply submit your identification claim to that amazon takes the issue of intellectual property and running the marketplace with integrity extremely seriously all sellers who come to sell in the amazon dot com marketplace have to represent that they have the right to sell their products their list on our website including that third party sellers product infringes my patent and then and then the process is we take down amazon takes down the listing and there's a process to to sort it all out here in this case amazon that my own dad did not av themselves of that process so the first time amazon learned about the issue was when we got the complaint and we immediately remove all this means we checked all the sellers out of the marketplace and i can tell you that since then if you both before and before obliges amazon to do all of those responsible things you just described well you could say they didn't pursue the theory here but one example could be the kind of target email was that we were discussing the banner ads and the websites that could potentially form the basis of an indirect infringement theory so there are potential legal theories that that could be in play here i thought there was no no evidence that anybody actually thought they were getting my law and gabby paper just ended up getting bad products but they had no idea what they were by law and cabbie that's not in fact the ground on which the district court dealt with the  been adequately clad and it's complaint i just wanted to make sure that the record was clear take it can i ask you this other record question if you look at five ninety five this is i don't know whether this is the little  a web page about something else we were it says at the lower right hand corner amazon dot com and there are no names of anything in here there's just a pillow with a child in order to if i say i'm very interested in that how do i go about purchasing it through i then get to twenty four seventy nine or a comparable page exactly so there's something in the air in the record that tells us that's the way it works or just the absence of anything to the contrary well i i'm fairly confident th during his direct testimony and you have portions of that in the record i'm not sure whether the explanation for that connection is in the portions that you have but what i can tell you is what we're looking at on page five ninety is an example of  these and are a product placement and that comes from twenty four eighty four this is i mean that's the comp that yes of course finding you click on it if you click on that the thing on page eighty five ninety eight that takes you to amazon dot com website the product listing page that the that the absence of the sale but already been determined i think he said we objected to that is that in material is that you agree with that and if so is there something in the materials we have in front of us story is that just true but objection lives to that instruction during the trial for the proceedings itself i don't i don't think there was like during the jury instruction charge conference i will say that the judge read that particular instruction to the jury i think even before the judge said what he said in the summary judgment ruling was there or was there not a dispute about what was still left of the patent infringement claim whether sale was still left or not left because it's not entirely clear to me either from their opposition to the summary judgment motion or the district court's summary judgment opinion whether he meant to say only the offer to sale piece of to seventy one survives so amazon's view was that only the offer to sell theory of liability survived summary judgment and i believe the district court agreed with that because we felt emotionally instruction  six reflects agreement was that trying to understand was that a disputed proposition whatever the period was between the summary judgment ruling and the trial certainly amazon's view i can't say what we do in th entirely precise but if you look at the introduction to that second section that you're referring to in their summary judgment opposition they say that the u c c we can look to that to inform us that's where that office sends out its opens that way and then from five ninety six the amazon's summary judgment motion on the basis that there was a factor skewed about offer for sale and we went forward and had a trial on offer for sale i think the sale issue was really resolved if you look at it they didn't raise it other than the way judge tried to as mentioned i'm not happy but they did have a discussion of it in the and their opposition to the copyright of course of amazon summary judgment motion in there they effective conceded that that effectively they do concede that the third party sellers are the ones that are making the sale they're trying to make that vicarious liability that amazon has control but if you look at page five seventy six which is their opposition on the copyright seller so what do we have it if your position is that they that they waived that sale issue a low and they waived the offer for sale issue here what's left and ultimate conclusion of the jury verdict that there was that amazon did not offer to sell the pillow cases so procedurally i think they're in a very difficult spot on the patent frenchmen issue ok can i ask you about the copyright  language like that  how do we know if we know that under the copyright law what we have said about seo under t seventy one in the patent context is supplies the same standard or what so we don't believe we cited any cases  law right now federal circuit law so i guess i'd be interested in the ninth circuit law on the interpretation of one zero six three and what those words mean and  as i think you just noted you haven't given us the that case and i don't think we have supply that circulatory i think under any definition of sale there's no amazons not in the position of making the sale here but what about the other transfer of ownership language so i think that in the context of the of the character right act of thought about this for argument is it that's talking about is giving a way that's not you're not transferred by sale which are giving away reading is it possible that one of the first sale cases in copyright law talks about a gift as a form of transfer it is yes i believe so that's what i'm thinking of i see that i'm well past my time idea i just want to let me follow up on this i guess i think maybe i'm confused to tell me why i should not feel a little bit at a loss to understand what we do with the one of the six three claim in the absence of law telling us whether there was a sale or other transfer of ownership oh i think that you've got all of the necessary and there's no waiver issue as to that right i mean for forfeiture or it's not before you  whatever the late night advance a waiver argument on that point and i do think that good information that the court has already clearly established that amazon could not sell the pillowcases and that in order for their five seventy six is where they make concessions i think concerning the fact that third party sellers are making the sale they say further amazon's selling on amazon services terms outline what the evidence below clearly establishes that that would require us to say just as we have said in the two seventy one a context we borrow the u c c definition requiring that not not only title be transferred but that it be transferred from the seller and to and say one of six three is the same yes i think i don't i think both parties are suggesting it's the same page one zero six two i believe we make reference to a docket the number in the proceedings below unfortunately that page did not make it into the appendix that was submitted to the corday i apologize for that but i think that's the explanation for testimony is what we are trying to say you know really fear is if you look at what he testified to confirms that amazon does everything have a sale except for prints for title amazon puts it on their website amazon collects money