some concern about the amount of material that's marked as confidential and we are going to be f king questions about the relationship with busy out  my understanding is that once mark is confidential of the various fields that are processed and i don't think our questioning will get into that area but if we had a question that intrudes into confidential material we expect counsel to advise us of that and then we'll figure out how to proceed at that point to counsel have any have a television generating fingerprint data and therefore the arc of my issue is lies there however claims one hundred and one thousand three hundred and eighteen are not structured the same way and the only presence of a television is that it is part of the environment in which the alphonso server do it means that you can access data from it directly or indirectly and there were plain constructions below about that question and there's no debate i think among the parties that with those t v s merely by downloading data to a hard drive sending it to gmail and then hooking it up to the system i think that's a harder question and effect than what the facts present here because the facts present the construction is quote connected in a matter that permits communication and certainly there are cases in this court and many others which make clear that such communication need not be a direct wire connecting one device to communicative coupled doesn't necessarily require a talking back and forth it just means that all fonso can access the data from the t v via some communication and it does it does so via communication with the servers in the cloud  common and is commonly understood to be a form of communication you're communicating through an intermediary device where it's all done in the cloud and that is well understood i say let me take just one more question on this point and i'll let you move on it and because things can do not require the use of a moment device it's certainly in the claim but it's different in the sense that it's not part of the system that is being collected it's it's in the spa certainly preamble of course but it is not something that would be required to be part of the the phone's operating system how it protects the phone from from being disrupted or hacked or other things yes that's part of the fun of your claim is that no we're claiming we're where we're finding that's the problem what embedded object that the relevancy matching server creates is part of the whole process of playing  legal error committed by the district court was to require specifically that the contract say you must practice you must give us these results according to the method steps of the claim that's the how the district court required an appendix ten ten where the district court ruled exactly the same way the court did here finding that the contract didn't specify the particular claim steps and held that aka my make clear it does not suffice to conclude that the local viewers are not content recognition fields there are exactly what fingerprint data are and there's no dispute that that's what did they did generate fingerprint data again when and that is all that's required by the claims the question of the level of direction  is a question of fact those specific facts from which a jury easily could have confirmed the direction control was present based on the controversial requirements and that should have gone to the jury for possible resolution both the video and sling factors it doesn't do it's computer doesn't do relevancy matching because it's actually human employees that take the data and match the segments with the i but even as to the where the data came from the sling application that in the bees wax server they still have their human activity argue it just so so the way to think of it is that  sorry go ahead yes because we believe the district court the other two grounds wrong i e if it is the bees wax server which is the role of the matching server which does the matching at fifty thousand  who is putting the system into place and benefiting from it and the mistake that the district court made was in believing that the phone which obviously alfonso does not have the phone and used the phone to request the ad but isn't wasn't focusing the lens of this until an analysis on that is that if you look at the claim the phone is because a minor part of it and the rest the whole claim is about what al does put into service what it does control and certainly what it benefits from which is a primary issue under centrally and so the phone merely requesting information and putting into motion the entire apparatus is similar to the shot the shopping web site cases where yes a rd party human computer has to log in to that website but the whole website is being done for the benefit of the owner of the website just as here alfonso's relevation relative matching server is all that is all put into effect and benefitted from by it so that is that was a mistake it made that's not covered by the coin yes there are so on this one it is certainly true as it is true in all computers that humans program the computer they load the data that the computer is going to use and in this context they would load the ads that are going to be served they would load for example the thousands of ip addresses that that watched a particular show but that's not the question for the court the question for the court is who is doing the matching fifty thousand dollars times per nd when all those ad requests come in and you have to that are already matched to certain either ads or segment i'm unclear on that but let's say that it's the ads and then all that has to happen to be is a certain ip address asked for an ad and it goes into that computer and matches the ip address but the ad is already match in my mistaken about how beeswax occurs and if i'm addresses of people who watched for decades and russell had uploaded to it the chevy ad that chevy wants to serve to those ip address but the matching hasn't that's that's how it works is that you can imagine trying to deliver to that ip address the right you're saying so you're saying the matching doesn't have to be between the ip address and the dealing under your claim it just has to be to the in the matching video got a list there are ten thousand ip addresses that watched a ford commercial and they enter it into the database one by one i mean clearly that's not going to happen until this is assume but the nd is what does it mean to use a relevant matching relevancy factor the claim does not require that the relevancy factor be created by a computer ford and the bees wax clearly uses that as part of the campaign id so there's no question that the relevancy factor is use and this is a this is a mistake that this record made in saying that relevancy factor had to have been made on the fly by the that's relevant but the matching is between the primary data which is their ip address and the ad and that's exactly what beeswax computer does  happen very fast in real time because an individual ip address comes in the fact that it was on a list of thousands stuck doesn't mean that that was just a list of the database that match occurs when one of those ip address believe i don't have all the voices down but i believe the judge hughes questions followed by by several of the other judges about the construction of the term communicative lee coupled the definition of communicative really coupled is in the on page thirty four and the agreed upon construction is connected in a way that permits communication if you look at the relevant claims that talk about that particular term what what the construction applies to is that there's a communicative couple in between the television and a mobile device and i think your honour's hit the nail on the head when you asked the question of if i were just to get a hard drive that had a to me is that if you read to specifications the best the cation itself appears to contemplate the use of that intermediary server is within the claim that's correct your honor although they won the tiriel difference between what is and figure seven of the patent and our case because of the alfonzo case there is a human being that interrupts that communication between the intermediate server and the and the smartphone or the mobile device so there is no connection that works from that intermediate server that goes directly to a smart phone  j declaration that's in the appendix and then that human being fills out a series of forms one is called the campaign segment two will they that upload it to a different environment and they which of bees wax and and they basically offer up the ability to to place an ad bees wax is essentially e bay for advertising they take a number of beds from a number of different people and whoever is willing to pay the highest amount bees wax decides whether or not the ad is delivered to the mobile device but a russian is in the middle because there's a human being that  download d the data that puts it into a form and then that form is then uploaded to this other environment called the d s p and the specific d s p is called bees wax in order to show i is a human being doing anything moore then identifying what the campaign is in other words that we're trying to match board the workers with chevy  a chevy and will download that data both fill out a form based upon the criteria that identifies based upon their their human activity and there can be many different criteria and then when that filled out they then have customers that we want to place and that might meet those forms but all of the relevancy matching to the extent there is any is being done by a human being at all farms but i'm not sure that i understand that answer what is it that the human is doing other than determining what the campaign is that that is what a human being is doing and then the nd thing that the human being is matching between a specific ad campaign and people that fall into the category of viewership that they want is that correct there's two different forms of matching that's what they're done yes your honor they're done some point is that correct that is correct or now who does the matching between once you have here are the ten thousand i p s and addresses associated with people who watch for that the last month director of these wax knows these ten thousand dollars people watch for and shabby want to send them an ad if they meet the right price so all the matching is done before hand and all that matching that beeswax is matching just an ip address that's that but that's correct your honor it's actually even even simpler than that essentially what the alfonzo on even to claim one year on and the reason it doesn't apply to claim one is because the what is claimed in the claim itself is two things one of aside what ever they want to collect from wherever they want to collect it and the only thing that we do is we specify the format and which data is delivered to us and that has that that that is entirely independent we do not control the t v we don't direct how they collect the data we don't direct who they collect it from we don't set a time for when they have to collect it we just buy the data and bulk and we ask them to format it in a particular way ok but mr powers is saying that the fact that you don't control the details because it relevant if you have a contract with them and pursuant to the contract they do it in a way that would be within the claims of that sufficient even if the contract doesn't require them to do it yes i understand that mr powers argument your honor i don't i don't read akamai as going that far because if that was the case any commercial transaction with anybody where you're simply buying something in a grocery store that you would you would then be infringing for all of the manufacturing process that went into creating a product that could not be the reading  in northern california between the hours of four pm and nine pm and we want you to deliver that data we would have a much closer case of to whether that would satisfy the akamai standard or not but that isn't what happened here and the the is particularly important here because if you read that playing it actually operates in almost precisely the way that the that that that priest media is trying to assert their packets here it starts with understanding data associated with user behavior and then does relevancy matching to provide a target of that and it even includes a bidding system where the i did not your honor i was preparing yesterday and i just did a quick search and i found that contrary to our rule our rules require and notification proposing counsel my apologies your honor go ahead  mobile device that could preclude the provisioning of targeted advertising but the quick don't say anything because they don't say anything about how or why the sandbox exists they don't talk anything about security and their co case there is nothing here that really transforms the us into some sort of inventive step it doesn't improve the operation of computers it doesn't really solve any kind of technical problem and doesn't provide anything new that is inventive you even heard mr powers say for example that the relevancy factor can be a human being just deciding it's relevant if there's anything that one could consider inventive in the squabbling it would implying that relevancy factor for the relevancy of i ching and if it's merely a human being exercising judgment that isn't taking this out of out of the realm of patt whose question about being two types of matching your honor is right that there are two types of things that could be considered matching one where you're setting up the data at the front end and which is done by people but there's only one type of matching in the claims and the claims is what you're referring to i think as the nd matching which is when an individual ip address comes in not the creation of the list of thousands of them but when one phone with an ip address comes in matching that against the ad to be placed to that phone that was for how can we kind of the claim language i'm looking at claim one because it describes it more particularly i think it says match primary  generated from the fingerprint data what is that primary data is the ip address and targeted data and i heard your friend on the other side say that is done data with the targeted data if that is done by an alp on the employee instead of the computer how do they infringe they infringe because that's just loading up the server to do its job so the can so the campaign id which is created initially just says here's we want to show this ad to any one of these groups of people so for example it might be people who watch i'd like to address very quickly councils argument that there's nothing in the funds of a zero agreement that dictates the manner by which visual produces the data the manner is dictated twice in the contract one is that the artificial content has to be done without the aid of meditative that's the quote without the aid of meditating specifying the manner in which it be conducted and that means using fingerprint data as unpatentable and i would agree with that if that's what the claim is covering is covering the concept of a targeted ad that is not this claim this claim is claiming a system that may be used to create targeted a but the concept of the claim is not do a target is bad the concept of the claim is in order to do in order to do this right you have to pierce the sandboxing technology that the phones have and this claim specifies a way to do that go through that sandbox application so that way when you have you're sitting there with your phone washing and washing your t v and a ford ad comes up all of a sudden you get a  sandbox environment where one language in the claim is dealing with this so they if you if you look at the mass primary data limitation it says quote application and other another information associate with the user just so that's specifically saying you're using the sandbox information as as a way of matching ip address for example with the and predication as a special occasion goes into more detail up on ways that can do that but for example using a common ip address so if your phone if you're sitting in your home and you're watching your t v through an i that the details of how to do that are in the specification but not in the cli an example of how to do that is in the specifications still claim says you're going to pierce the sandbox application using well that's relative factor and specifically says the relevant factor includes the category of sandbox application a primary data the behavioral history of the user those are examples of how you can pierce the the sandbox application application that is the way part of the way that the sandbox application is pierced i don't understand that mr parr's i thought the relevancy factor was the relationship between po providing more information and different information about what the relevance is for comprises and it makes clear that part of that can be the sandbox application and i think the fair way to mr powers when he keeps saying category of a sandbox application what does that actually mean isn't that just another type of identifier of a particular individual using our in particular device it's listed here as part of the relevancy factor the specification goes has more of an explanation of how that can be used but that doesn't need to be in the claim the point of the claim is that you're using the sandbox information to pierce the sand example that's that's one example how does the claim tell you how to do that the claim doesn't need to i think your honor the prime says this to say what you're doing the explanation for how that can work is found in the specification and i don't think that's consistent with our case i believe it is your honor because the there are many cases that require of course that the claim has the elements to provide the technological advance the claim doesn't have to have the detailed explanation for how that advance functions that that i don't think your face is required all the your claim that vance is is too is that this patent it rent it its relevancy machin server causes a wrangling of the targeted data to the user and then it goes on through the sand mobile device so that's exactly what we're saying is the technological advance that was not there was not possible before and it's done that through the relevancy factors that are up above and to to fight  a claim that is claiming a system which is you claim a system that gets you past the sandbox applications of the mobile devices that is true was a question that one of you on is asked about the phrase that's used here in claim ten that talks about rendering of the targeted data to the user through the sandbox application of the mobile device and i heard one of the judges mentioned that mr powers response was not consistent with the case law and i agree with that because that claim is written purely in functional terms in an abstract way it doesn't actually say how it's done in the coin and that is the precise problem with the claim that makes it vulnerable and eligible under section one hundred and one dollars of the patent act mr powers made a lot of references to these embedded objects that are sent with a transmission but you don't see that anywhere in the claim is relying on the specification and had they claimed that he might have a different issue here but that isn't what they claim and they claimed purely  i think that that is an important point because they either have to say that the sandbox component is part of the claim is relevant or it's not and and if it is relevant it's pat