because we have a couple of preliminary matters we wanted to raise with you all so i don't want the time to count against your time and i guess the question that i think the panel has are about whether or not we have a final judgment so i think counsel should probably listen carefully mr harper that goes for you as well and we may ask for your response so the question we have is a preliminary matter is whether or not we have a final judgment and that question is raised with respect to the seven hundred and fifty seven dollars specifically as they were counterclaims of invalidity as we understand the record and the court just reached the question of infringement and response is that the complaint here talked about extended to all claims not just the asserted claim and there were contra claims i guess so there was nothing the court just dealt with the asserted claim so are those all claims other than the assert claims out of this case go on or do we need some closure with those for those as well now let me ask my the question of even as to the other two that the counter claims refer to all claims being invalid and i one thing i guess i would add is that they say that they're all invalid not just under surprises and i'd i guess i would need to go back and take a look at the documents you're talking about i do know that the judge  point that's that's all i can say at this point well we i think there we do have case law just respond to that where this issue has this is not the st time this issue has come up before the court and so i do think in our cases is adam harbor for dropbox judge toronto is correct that the did have invalidity counter claims in the case i suppose like mr hogue i am we never considered the matter not final and they be the court i believe close the case is the end so i think for purposes of this appeal we consider there to be a final judgment on those issues and what you consider to be a final judgment the question is what is the reality we have to consider the record so are you prepared to make a statement or do anything with respect to these outstanding  willing to make that representation claims were invalid on eleven i think that would have the effect of moving in on infringement issues what is the other way around i think if it's the other way around again i without being able to separately address the legal issue and possibly submit supplemental briefing i don't i can't commit to what those how those cases play out if cardinal chemical and the courts and the supreme courts or this court judgments w would in fact be moot yes ok well i'm not sure how to proceed so i'm looking to my colleagues if they have any other view seems to me that perhaps we are in need of a short recess so that the panel can which i'm sorry to tell you jennifer that's what i want to catch you up for need for a short recess at this point tell us how you would be that given the audio system and where we are i believe i can disconnect the panel members from the call while the attorneys are mean on the line and then i can connect you back in after i can set up a conference with just a panel member ok so you would have will proceed to disconnect the judges from this call and and the panel has conferred and now we're back on the record counsel and i want my colleagues if i've misunderstood or misstated that i think to please feel free to jump in but the panel has concluded that based on mr harper's representation that dropbox is not today dropping or withdrawing the all of the  pursuing the one no one claim with as an affirmative defense with regard to the seven hundred and fifty seven dollars patent we are ready to proceed with the merits case to come so concur if i've stated correctly what the positions are and where we are limitation is not expressed in the claimed was an added by argument during prosecution it's not mandated by the inventors definition of device or system in the specifications where as close as it gets to software presiding on hardware it is contains the entire directory am i right about that i don't know that that's what is causing the difficulty here i have never had a difficulty but i think your understanding is  four limitations none of those limitations had statutory means both functional language for the for the six limitations contain the term module and in accordance with the case name williamson he declared they were non did to show that there was substantial structure algorithms source code and pages to fifty to fifty five of our of our boys and as another point you're supposed to of six separate terms my understanding and just tell me if it's right that each of two terms appears in all of the claims namely user identifier module and transaction application of clear binding authority from this court and the clear factual record below and those those decisions should be affirmed and i want to start with the infringement issue on the seven hundred and fifty seven patent and mr hogan his argument just now said that called it a random importation of hardware into the claims including on the client side and as as your honour's know and as we set  brief there was not a random importation of hardware that is the clear implication of the specification in the intrinsic record here and it is also flows directly from what mr hope himself told the district court during the martin proceeding this case in other words the entire dispute between the parties on the terms system and device was all the around the question revolved around the question of could those terms be interpreted to cover software without any hardware and when that issue was raised at the hearing the court said it doesn't sound like there's any issue on that and mr hogue agreed that there wasn't that in fact even into their claim construction hardware was required on the client side because that's where the systems and devices are in the claim terms and that no one was arguing that the claims could be infringed by software alone notwithstanding that  clear record at the district court what synchronises now trying to argue is that in fact the claims can be infringed by software alone and there is no case that they cite in their brief or no precedent of this court that to infringe a system claim in that case the question was if the user is installed the software that was provided by qwest on their local processing means which is was their computer even though it was qwest software and they controlled it and in that case what's until ian argued is that they were the mastermind of the system was that making the system in the court held very clearly that it was not and that ruling applies whether or not hardware is required or whether the software must simply reside on the hardware the key point is the software has to reside on the hardware on not just one client device but two different client devices that are joined to a central data store in order to exist and there is no evidence and no argument in this case that dropbox ever directly infringes a claim to the system it doesn't make that complete system it doesn't use that complete system and it doesn't sell that completes s under the clear authority of this court did the district court was correct to the synchronous turns to a number of cases based on fantasy sports and it's reply brief and i want to briefly address those because we did have an opportunity to and i think in all of those cases they stand for the unremarkable and frankly irrelevant proposition here that a claim to an apparatus or system as opposed to a method that has software on hardware doesn't actually have to be used in order for someone to be guilty of or liable for infringing the system so instead it's the sports there was a claim to a a person like a computer for playing fantasy football that had various software me and all the court held was it doesn't matter if the user is required to actually use the means on the hardware the computer that has those software means infringed the claim now synchronous argues that the computer in that case was the end user's computer trying to draw some analogy to this case and it says that in its reply brief without citing anything in fantasy sports and that's because fantasy therefore that is what maintains the software it highlights the fact that the accused in front of their head had advertised that there was no need to download software updates on to the user's computer so if it is contrary to the position that synchronises taken in this case all of those cases simply stand for the proposition that for the software components that state that state capability they need not be used for a complete system to be made not a single one of those cases stands for the proposition that someone can be an accused and printer can be i have all four direct infringement without meeting all the claimant patients at nor does you know i stand for that proposition  e even under the the in residence theory is a district court call that the claim still require hardware to be residing on soft i'm sorry software to be residing on hardware to be infringed here that is the was synchronize maintained at the summary judgment hearing it's what it expert admitted that that the system is not complete in these these admissions are on page forty and forty one of our red brief the system is not complete until the user can stalls the software on not one but two different personal computers to form the complete system of three components there is no active infringement as to that complete system the unless the notion that our expert was able to interpret the claim as mr have just said i think it is based on an unfair reading of the expert report there was as your owners are well aware the expert gave an opinion that the claims are invalid is about it is you know obviously we have a our motion to strike on this point because in the reply brief on this issue for the st time synchronous argued that the claims were capable of being understood and could be ten page submission it made without quoting anything and that's because there's nothing in that submission that makes that clear it merely in that submission the patenting of the applicant was distinguishing two different prior ar on the basis of essentially every limitation in the claim and in fact the one of the term issue here that was added which is a digital media file is not that term doesn't appear anywhere in that submission the examiners amendment it nor would it matter every claim that is found invalid by courts is one where an examiner approved of the languages if they did not provide it and did so and provided and as a result had a presumption that this court has never found that the that that immunize the claim somehow from the finding of indefiniteness in this case it is the language is clear the  to the point that mr hope suggested right now that the media data not comprise or include the director of digital media files that is not the position either synchronous or its experts a blow with pages forty nine million eight hundred and fifty  one of the appendix both synchronous and its experts agreed below that media data includes a directory of digital media files and to just trying to question whether or not that's an index or just the files themselves the claim makes no sense in hindi why why why why would it i don't think that this point has been contested but why would it and you're gonna have to correct the image that's in my head i have to have this image of  the end that lists all the other movies that are available to the user and you know why does that midi files have media files would include a directory of all the media files if all the directory is synchronizes expert agreed that a digital media file cannot contain a directory of digital media files there was no argument below to the district court as a matter of claims instruction or when this issue was presented on summary judgment that it made it would make sense if the digital media file contains that that directory in fact that the way that the term digital media file was defined by the court was as a digital audio or video content in the form of a file such as an mpeg m p three real audio or liquid audio file there is no testimony or suggestion that that can include such an index for that the index would be what this digital media file means and i think the further reason supporting that is that the in limitation of claim one it requires the transferring of a digital media file over the network containing the difference information and the if if what we're talking about here is a digital media itself contains in it some sort of directory somehow that wouldn't be the difference information to the later transferred so no matter how synchronous slices it the claim just simply doesn't make any sense and what they're asking the court to do is to rewrite the if there are no further questions on that issue i'll move briefly to the six hundred and six indefiniteness question i'll start judge tronto with your question about the terms and you are correct that the term user identifier module appears in all of the claims the term transaction identifier model appears in all of the claims and then the other terms of peer in one of them so but respectfully on on all of the terms there is no basis to reverse the district court's clear holding here which was based on un contradicted unrebutted expert testimony from dropbox  the court found that these terms were not terms associated with structure that there was no description in the specification of person of orders filming art would associate with these terms and the court  on drop boxes expert synchronous so contending that the district court ignored the view of a person of order and it's going to art had opportunities to submit its own declaration but it did not follow the district court rules and have the declaration struck there for the record here that they by the way don't appeal that ruling to this court and so those the fact findings that the district court made based on that uncontested fact record are reviewed for clear  and there clearly is not clear error here with respect to those rulings and what the person of ordinary skill in the art of how he or she would be the patent the last issue that i'll touch on briefly  a number of cases which make clear that claims that are essentially identical to these claim an abstract idea and add nothing more the the claims and data engine for example claim tracking changes interest in a spreadsheet  there is some benefit but as as we made clear in our in our brief be the fact that the specification can identify a benefit to applying an abstract idea in the context of a computer does not mean that the claim is ineligible so i hear that i'm in my when i'm arguing here i did not say that hardware was a limitation nor nor would it make any difference if i had because i'm not a source for a claim construction but on appendix page six thousand and fifty five explain to the judge what i was talking about software residing on a computer we're talking about the magnetism on top of the hardest hard drive we're talking about the pattern of on standard and anomalous standard does require interpreting claims in light of the stuff cation and the prosecution history they would like to strike the prosecution history because not helpful to them and then  is a matter of law and and that would conclude my argument unless anybody has any further questions and i'm not inviting a response to the one on one issue  sync two systems to sync without being directly connected against each other so so that's an improvement in the hardware as far as the step two goes we have quite a bit of different transaction generator previous state of the data and so forth and all that does is to make sure that the information that is being saint is the differences are  documents and then you send the changes there is no structure or specific information about how you generate those changes only that you do so by comparing two versions of the data there is no information and certainly nothing non conventional about how the system is structured that is an improvement anyway we don't deny obviously that when you send less than the full file you're saving bandwidth but as has indicated earlier there's nothing in this court's precedent that say that the merely the benefits that flow from taking an abstract idea sending the changes to something rather than the full thing that makes that raises even a question of whether something is patent eligible in environment doesn't provide a non abstract idea and that's all that the four hundred and forty six patent does under their reading is to take what's in the seven hundred and fifty seven and limit it to media data data or media files there is these claims are at a fundamental level the most basic abstract idea that is we have been practicing for years including when we sent a packet part to a treatise and so they are therefor