the court the court should reverse summary judgment because the district court's order is based on an incorrect factual finding that the aggregators in the accused back in systems receive content from tough and when you say and correct all we would have to decide is that that issue is not properly resolved against you and somebody judge her that is true there was no evidence below to support it all of the evidence is directly to the contrary facebook does not support that finding or are you in favor of that pages fifty eight and fifty nine of their read brief there is but your honor is absolutely right all you have to do is find that the court improperly weighed evidence and failed to draw all inferences in favor of the non movement in making that finding but that finding is absolutely contrary to all of the evidence in the record and that's most clear your honor  line yes your honor lines ten through thirteen and if you go up to line one that's where one says and does this trace show you whether the query to tao came or was initiated by an aggregator or the accused back recollection is that they are all expired honor but we are in the middle of discovering this was a strange posture it was an early summary judgment in the middle of discovery that was framed by a letter brief asking for permission to file a rifle shot and so the discovery that we have had was focused on the issues i will allow a face to trial or at least summary judgment motion also said discovery shall continue and that was what in april and then a ruling was in early august with discovery supposed is that process complete so judge hurdle has it so the briefing was complete the court only made one binding with respect to mainstream and main collection and substring and sub  but the claim construction process i don't believe is complete and there is an issue in that there are disputes that haven't been resolved that's correct so for example data unit which is relevant to some of the new issues raised by facebook has not been construed by the rings that is alleged to come into the back and system but not enter either the time ordered database that's exactly right or so with respect to time line for example we put in the affirmative evidence showing that every day the unit everything that is written to the timeline everything that's written happens on facebook is written to the timeline in response the only thing that facebook has argued on appeal with respect to time line we have to distinguish is the queer that commanders come in to form the query and that was as your honor said argued for the st time at oral argument it was not discussed in the letter brief the motion there was a lot of times you have changed your you know our opposition feed system or the taylor leaves an area that was totally clear in the opposition itself and what was raised in the server reply so their motion originally said we can't meet mainstream because tao is not time ordered we said tao is not part of the q system and doesn't feed into the q system in response they argue that house is important and then they raise a new argument about substring in the so reply we address the substring arguments but facebook's allegation here in the in the appeal that we didn't know about the q system including including the aggregators until the serve is plainly falls did i  information on the receipt side and one house search criteria or something on the timeline side as being information that came into the system but didn't go into the time or pieces which would make the time work and pieces  same thing that's right that's all that they've argued with respect to timeline and the court hasn't the court didn't mention it either at the hearing or in its order so there are no findings for this court to review it didn't do claim construction of data at the hearing was that it knowledge that ad finder and ego were not something that it focused on from the briefing because it wasn't in the briefing he actually didn't address the querrey at all the search criteria and in his order of course there's no mention or fact is part of print and or the back and i don't believe so your honor i believe that it's crystal clear that the web here and the p h p level are part of the front end that's not part of the accused system and if you say part of the front then does that mean on the user's vice o assume web server or other processor that you might be away from the user's vice but nevertheless still considered far from i'm naturally not sure i believe that it is can be on the user system it may be different depending on whether it's the mobile client or the computer client i actually don't know the answer to to your question so the evidence that we presented was sufficient to allow a jury to support a jury verdict that the timeline to be includes all davey events coming into the time line back and system at seven hundred and twenty nine dollars time their facebook documents describe timeline as a timeline ordered time ordered index for his declaration opines applying the claim construction of the timeline t v is a mainstream at paragraph ninety eight that it is a main collection because it stores and is inclusive of all user actions system then they continue to ask him over and over and over the same question and he admitted lee didn't handle that very well and entered into this refrain but he did provide that information and that deposition was after his declaration which as i showed you before clearly identified i see that i'm into my rebuttal time i the last issue is the claim construction the main collection one is improperly construed and the court should rema hearing was about time ordered so that was my mindset at the time and with respect to time order given their new argument it's true that difference didn't matter but it's a collection also doesn't have the every day to unit  appropriate for us to say when judge kobolds said there's no difference or we should take that to mean is there is no difference given the basis of his ruling and if we were to disagree with that for it start your honors i'd like to simply thank you for rescheduling this hearing might see the cross on the floor i'm still hobbling but i do very much appreciate the that us through this so thank you very much with respect to the argument your honour's i think that perhaps the most important thing that everyone's ignoring here is that once a computer system is to find the parties agree that a stream is inclusive of every data unit received by or generated by that computer system and that that appendix five hundred and eighty two as well as the court's order at appendix thirty two and thirty three here we moved under seal a text that they had not identified any mainstream in multiple times just tell us what's in that computer system not just that he identified somewhere in his papers that there is a multi field system but is that the computer system of the claims that answer did not become clear until the server by and similarly that the time line system for the computer system for that part also included an aggregator there for each and every piece of information that comes into that aggregator must be accounted the how do you support so your honor that's easy the record is exceedingly clear from mr vickery's deposition at appendix two thousand five hundred and ninety nine that when the entire process is instituted you have to account for all of the information that comes into or goes out of the aggregator that you can so you just the back indication is maybe maybe i'll put it this way the page that you're citing and from that for four pages i guess  starts actually above it at line one hundred and eleven of the most important things in generating someone's news feed is their list of friends and the pages they follow that information is queried from tao once this request this large request structure is prepared it's sent to the multi feed aggregators that's coming directly from tout which then prepare a list of pages and users to carry on the main action index what's happening and what he's describing is when you say that you want to look at your news feed the fact that it is you judged her monteux asking to see your news feed page that comes in to the aggregator the aggregator then says towie i need to know who judge toronto is and who his friends are so that we can figure out what to ask the leaves for and that's exactly what mr victory is describing so calvin sends down an entire list of who you are and maybe things that you like or things that you have agger back and includes a software layer called the aggregator similar to that of the multi feed infrastructure and then three pages later where he discusses through paragraph eighty eight all the way through ninety where he discusses how that aggregator works he's described the same process that mr vickery described which is that when timeline is requested to the time start one step beyond one step after that it can only build querrey just like mr vicary describes a query can only be built after information from tao comes down who are you what are the dates that you've used this that information is then used to build the query that goes into the timeline database to grab all of the right dates and the right parameters and that's what mr wong is talking about at that section of the court referred to an appendix tw and eighty seven what mr farnum says he's being asked he's being asked to agree that how doesn't come in that how it's not anywhere involved in the timeline system and mr hong says that's absolutely not true from tao even before it gets to the aggregate so what he's saying is i have to ask how for the information to make the querrey even before it gets to the aggregator so that the aggregator can ask for the remainder  you receive the information from the timeline database or from the leaves how do you show it to the user so that's the end of the process and i will grieve that that information does potentially it does carry tao and it's a little bit unclear whether tom passes it back to the aggregator or whether passes it to the p h p but that's not what we're talking about that's not what the judge is relying on the judge is relying on the sections where mr vicary and mr wang were saying before we even get to that main stream that leaves that timeline database information came from tat and then even more critically your honor and this is something on which you can affirm the entire judgment regardless of what the parties say that is absolutely fatal to their entire argument because with a claim that requires every data unit that goes into a system be accounted for they have to prove the negative so by admitting that he cannot say whether or not tao feeds into the aggregator right away cilla tech supplies because he has not demonstrated that there is a system that does not talk to tell so right away we have an admission that but it's going to be a very current context pacific judgment about whether the specificity requirement is met and you don't expect to fifty six movement movement to say you can't prove your case over have to even before discovery is finished showing that there is nothing in there that comes into these back and systems that doesn't seem to me but it is that but it is here your honor this is something that they chose to accuse knowing that they had a patent that they could only acquire over the prior art when they said each and every element we were consistent we didn't just say seal tech says you lose we specifically made the argument that they had not identified eight main stream that included each and every item from the main collection that's what we said and we said you can't do that because everything that's in your mainstream wasn't in an we don't even know what the main collection was but you certainly didn't identify it our theory was consistent the entire time the only theory that was in consistent was they had originally drawn the arrow or the circle if you want to call it a round the taliban akon and as the  said you have not identified a mainstream that includes all of the elements that come into or go out of the computer system one example is tao and then we gave one example being tout gwen in their opposition they said oh hold that's not exactly what we meant we're going to draw our circle differently then we said ok now you haven't identified us sub stream then they asked for a server apply where they said ok the computer system finally we're going to say does include the aggregator so that it something broader than the mainstream and self so that they could then have a sub stream down the road but it is a zero sum game every time that they react drew what the computer system was in order to make sure that they had a mainstream which could have a sub stream of units only from that stream they had to broaden now what the computer system was and when they did that they encompassed the aggregator once the they had to account for all of the data from tao that feeds into the aggregator witches at mr victories that position as well as mr hong's as well as mr koskinen zoned declaration all of the graphics then showing also that even if the court were to say maybe it's not tao although we think the record is absolutely clear that it cal does feed in there's also add find or an ego that are unrefuted that they feed into the a undisputed it's also undisputed that where is despite what we've heard today here an argument actually do include quote tons of information this is documents produced and used not produced used and cited by koskinen and  that mr fester talked about when mr bronson was talking about it was just how do you then build the page after all of that has happened you can't ignore the front end and i don't mean front in that way i mean you can't ignore the beginning of the process and focus on the end of the process  records just that since we have other grounds you don't need to care about yes so your honor wants to know on page forty five of the read brief we specifically talk about how mr victory's testimony unrebutted does support that the aggregator receives that entire segment of mr vickery's testimony about the fact that information is received from town that goes on to page forty six through the large request structure which is the language that i just quoted to you your so we are supporting it there as well so clear so what the evidence actually shows is that it's the front end that may receive information from tao and then formulate the query and send it on to the aggregator so the data that they're talking about in the form of user per data that will be used to perform the search query is coming actually from the front end really are you looking specifically page twenty five  letter for you but i think she quite rightly was quite right this is focused on on this page and i guess i'd like you to explain why this page he will if you just consider it all of them we don't consider it alone doesn't say what she construed and that was not the basis of the court's order the court's order was the content that's actually indexed and the forty two dollars it says then the multi fee to aggregate a receives the actual data that was indexed on the multi  feeds leaves from tao to satisfy the querrey the judge judge kowtows order was not talking about the new query parameters argument facebook is raising on appeal which was raised for the st time at oral argument the order is clear that they're talking about the content that is indexed and that content as misc even if you know it's cheating with the actual data that was index and this keeping knowledge see you that that is not research received by the aggregators she said she didn't know it may have been but there's no evidence in the record to show that it is and facebook hasn't presented any so the court order is absolutely clear that it's the actual data that was index that has to be that he says was pulled into the aggregators from tao there's no support for that facebook acknowledges as much now they're talking about the wherry inquiry parameters are not the proper basis to affirm because it wasn't raised in either of them to write members correctly this particular age good page fifty doesn't support him we go through in our opening brief pages fifty to fifty five refuting very carefully every one of the judge's cites and why it doesn't support that order keef's argument that ad finder and ego feed into the system being an rebutted that is absolutely not true they were not raised in the motion they were not raised in the reply they were mentioned only at oral argument the judge that's not consistent with between add finder and ego to the aggregator but there's no testimony about that there was no evidence and the reason for that is because it was an early motion for summary judgment that wasn't part of what they framed as their motion so there isn't any testimony in the record there are