cash control directives are pieces of code that are sent down with web content that say what content to store and how to store the h t t p protocol specification saying how those communications work direct infringement because there's attribution exactly your honor i play surface distinguishable is it not because they're one entity control it was vertical integration full aspects right i believe surface is not distinguishable because you still have the cache control printers that are actually sent to the user's device and when they're executed that's what dictates the storing process so just like in  remote device there are instructions that say what to do in those are the things that are being executed but if the user who sets the process in motion right the user doesn't have any control over the storm process they can either toggle switch to say have any control over any particular item whether that's stored just because the user can set and disable caching in prevent infringement from occurring that's not the same as saying that the user has control and in fact their defendant's own expert says quote and this is appendix thirty three ninety two there is no scenario where the user would have to take an affirmative action in order for information to be cash in their browser  clarify this for me is putting aside storing for a minute is there any step of the claims at issue that the user takes that is in particular is the user's request for contact among the cream elements here or does everything in the claims take place either after that or even before that and whatever structuring advertising might me so there's no clean the action that the user must take the only claim elements are to structuring claims structuring advertising and then there's the storing claim yes that's correct your honor in that's the case in many accused products so if we think about it any computer software product the user has to turn on their computer they have to install it they have to use it and in many situations the user has be installed on mobile devices so there too the user had to turn on the devices in fact surf says in this is that thirteen twenty three to twenty four surface ships were incorporated into and user consumer g p s devices so to surface that ship but they didn't make the end user consumer devices like the cell phone etc those were third party devices if this is no different then the variety of cases this court takes up where that where there software which is being accused running on hardware that the defendant did not design and whenever there is a receiving or sending stop that is claimed by patent this court doesn't agonize over who made the networking card or the ether net cable whenever there's a displaying claim this court doesn't agonize over who made the monitor or the cd devices that's because what's the key issue here is who is defending performers who is making sure that incurs on the device that preceded the steps in these methods exactly so there's no situation where there's like an individual piece of content that comes down and the user has to say like save as like in a word document instead the user can in certain times disable caching if they wish and then afterwards you know there will be no one from true but if they don't choose to do so there's no user action that takes place one content is coming down so it's just like in z four where there's a new fridge and mode of operation which by the way ninety five percent of users are it's the only way of operation that they're even aware of and then just one percent actually decides to receive me as if this is browsers are people i the the browsers do act to allow the story right and to store so if we're talking about this and if it is in your view is dictating the same as direction control under  something else might be involved in implementing that process actually taking the ones and zeros and putting it on the hard drive that process might might be need a browser to do it in but if you dictate it in other words if you say you need to do it and there's no control or decision making process the browser can do to stop that then that is dictating performance and the other fact that we took the word dictating and surfing created a whole new legal principle of dire cases in a situation where there is implementation details that happen one layer down that's not what the court looks to otherwise any q s infringer could look to a processor and say we don't actually do what the software's you know our software might do x y z but since fact the processor that has to move around the ones and zero and in the hardware that has to actually implement that in the hard drive that has to store things in the monitor that has to display things that you raised the back of m evidence that the actions that take place at the users reception system are attributable to defendants under a theory of direct infringement we cited aka mind at the real appendix three one one seven two eighteen and where as soon below what we said is that this fits within the context of the particular facts so if we look at iraq and my travel sentry and you lie lily they all refer to the fact that you need to consider the specific context and he turns on that that it is vitally important under two seventy one to distinguish persons from equipment to seventy one asks who is doing things most of the discussion in this case is about the defendants are clearly doing things up at their server or sending stuff down and then there is all this talk about what the quick method is doing that happens to be own or in the hands of somebody else but not what that somebody else is doing and i took it that your first point is that for the particular steps of these claims they user isn't doing anything yes exactly your honor it a fact defined as having come forward and talked about a third party that's her and therefore this isn't actually an a case because in akamai cases when two different persons are doing two different things and you're attributing person number two's action to person number one your first theory is there is no person number two for any of these yes that's right your honor into the extent the court decides that there is a third party for example whoever made the browser or whoever made the operating system or the user that would be all attributable to defendant the benefit is definitely to the user because the user doesn't have to wait around for a content to be retrieved again if they already have it in fact because the operating system can act for quickly that that's you're saying that that's not a benefit to the operating system it will that's a benefit to the user because our expert testified in this is that appendix thirty six seventy four the average user is on likely to want to disable caching because of the is just sitting there doing whatever the remote sentence structure but you're going to point is that we don't we don't control it it's always subject to the protocols in the browser and in the the operating system and those manufacturers yes they are people there are humans involved in all of these human who makes that operating system can decide not to cache for cache the user wants but once a user either let's say defaults caching stay or set it for caching all of which is outside any of these particular claimed claimed elements the activity set forth in these particular steps will go forward while the user is asleep whether or not outside the queen your honor because the claims require the storing and if the user controls whether or not the storing is going to happen then the user is in control of that step and the user is in control of that step we don't control in fact the  d this is a claim that was drafted by the way there was some discussion in the briefs a possible difference between mobile devices that use apps and i took it that there was some evidence at least  system the operate the mobile operating system does all of the caching pursuant to it's own protocols we don't control those protocols what the cache control headers and do is they say if you're caching information here's how long you should do it but the important thing is he refers to the things as the headers must be followed that is true but the through the header says for example public information public information is broadest category that is something that is casual although the protocol says it may be cached so if you put in a public header we put it in a public cat or it may be cached it may be cached if the local system decides it wants to ca it that's how this works we don't control that process or you think you see it and i really wish you would keep talking about persons rather than systems the system isn't deciding anything well then sending tells it to do something at the moment of these steps the people that wrote the software that the user is using at their system there are humans that wrote the web browsers there are humans that wrote the operating systems their theory right now is anytime a software make call on some other system and that system may have embedded in it some sort of an infringing method that the party that made the call made the program call on it is a direct infringer that would directly infringing by using the system even though parts of that system were absolutely under the control of the quest i apologize i don't think i'm familiar with that case or whether it was cited but in each patent is different and a lot of these issues frankly can be dealt with that it's that is what i mean at the end there is a difference between saying here's the steps of the method and our method is structuring a system so that you could get to a story capability yeah but that's not that's not what it says it says structuring advertising and storing so storing is an element of plain a as well does not say structuring advertising includes story structure had to be so that it may be selectively is case i'm again nobody because it's structuring advertising includes two things and so we're not doing the second of those two things so nobody is doing no no single my card is doing this maybe i'll try to ask it this way i guess i took it that the structuring of advertising is definitely something that the publisher who's running the server is doing there are making it so that it fits nicely with the the non advertising content and it arrives at the same time or is there at the same time and that the language here saying structuring advertising includes storing implies that the structure is the store why did why does that not imply that to be an infringer yes so they've defined what structuring advertising means here you have to do two things to be a structure of advertising you need to do step one and step two we don't do step two we're not a structure under this claim we don't infringe this claim this is i think judge i'm out of service clearly distinguishable this is that was a case where the sole defendant control not just control but wrote the heart made the hardware wrote the software installed it at the user system and i would add by the way the court and server made clear and emphasized that the users had no ability to change what the defendant did it's infringing systems here it's completely different we don't control the web browsers and the operating systems and the users who ultimately control both we don't control them this is an easy case for the following reason there's no direct infringement under circuses there is in fact a step to storing step that we don't do there's no attributed under akamai you can attribute infringement you can have vicarious liability and or different ways you can have a contract or a relationship you can have an agency relationship you can have a joint enterprise or you can have conditioning of a benefit or participate on the prison on the step they haven't made any argument under one two or three and number four clearly waived in the district court and i want to just clarify that if i could we said in our summary judgment motion you aren't making any argument under that prong of akamai five that there's a conditioning of a benefit and we had they were not only that we said your expert he testified that you condition the benefit on this step to the screen displaying step but not the cash instead they responded we don't need to prove that because we can do it a different way so it's not just a case where they never made the argument below they affirmed lee said we aren't making the argument below and then when travel century came out we had cited the district court opinion in travel century and they said all that's been reversed they never made an argument that there was a conditioning of a benefit and the reason i think they never made that argument is there is no conditioning of  benefit here are websites operate as the testimony says in an identical manner regardless of whether caching is enabled or caching is not an aid we don't care and if this was an argument that they closed system involving typically an almost exclusively dial up modems where it i guess that that actually makes yeah maybe i just flip ahead yet seems to me you may not be providing  benefit through this because now you have super fast time unlimited bandwidth but that doesn't mean that you've been using the you know the older form where it matters to have some of the later advertising not having to come through on the same wire that we get a benefit from we don't do the prefetch and that's our alternative argument because we just this only the caching that's done by the operating systems in the browser is done when the thing is retrieved in response to a call but just to make that point what i was going to say is that they wanted to make this argument the conditioning of a benefit argument which they clearly way below that they weren't making we would have come back with extensive evidence showing for example to the extent there's any difference  automatic synchronizing step that party that didn't have to be done in this and then what the court said is well the users can take their data into their doctor and have the doctor strapped it or they can print it out or or and send taking a obviously those are things that that are less efficient but the court said there was no condition of the benefit my point here is that there are many many facts that we would have put into evidence among them also that there's a very very little of what i b m would consider to be advertising data that we ever allowed to be cached by the operating systems of the browsers because among other things we get paid for how many as we send down and also because the need to be current and most often almost exclusively the ads are just links to websites from the advertiser they're not they're not data that can be cached on the local system all of these things we would have known or metering of the advertising is from the transmission from that does what i understand your honor we would have put a lot more in up my only point here this is going to the way of a point i mean this is i have rarely seen a clear example of a waiver here this is something that they never argued we told them it wasn't in the case we told them their expert never testified about it they came back and said yeah we don't need to do that because we've got other theories and then for the first time on appeal they bring out this test which i think your honour's are familiar travel century that was litigated extensively below main thesis another case where this court said it wouldn't be doing this on its appeal for the first time and course remanded but in that case the law had changed while while there's a lot of people so the party had that opportunity here the law established well before so it's not a direct infringement case it is not attributed infringement case under akamai because as i said they haven't made any arguments under the first three part parts of that test and the fourth part they clearly waived i think this is something that fits quite squarely into the court's precedents and for the court to then adopt this view that any time somebody sends instructions to another   other entities operating systems or web browsers that then in their view caused this to happen now we don't think that actually happens but causing something is not the same as it had being a  concede the direction or control point on pages fourteen to sixteen of their appeals what they say there is they characterize i b m substantial evidence as showing that they merely control or they just cause or they necessarily require storing to occur those that's how they characterize i b m s evidence and that evidence must be viewed in light most favorable to i b m so the point in s the user can be asleep when it's happening even if the user has control of the equipment and general sense would vastly expand infringement live delivery and in both  unprecedented and dangerous way your honor it would not expand liability in the way that defendants posit and the reason why is you'd still be asking who in effect is deciding what is occurring so if there is if there was actually evidence that you know the users have to look at a pop up box and then they say well i'm choosing to download this please download and we'd be in a different situation if there was a situation in which you know that the operating system there is evidence that rather than just blindly or bang whatever happens actually you know has to make a decision making process and maybe we'd be in a different situation so that's the backstop to overly expansive infringement the question is who is driving the bus in this scenario not who's manufacturing the wheels or some implementation details on the lower end and that's really the question the issue here in effect i defend it's are confusing you say who's driving in that there have to be circumstances either for conditioning or a benefit or otherwise i mean an airline eli lilly we said ok those patients have no choice they have to do these things in order to get that medical treatment this is not a situation in which that that downstream services have no choice right your honor this if this the evidence is that they have no choice and then the expert witness in that case said that physicians based on that evidence would then withhold folic acid or withhold treatment unless the patients used folic acid so the two steps removed from what the want because that was already before the court the court decided that there was a benefit at appendix fifty four fifty one to fifty two were talks about the benefits of the invention rather than talking about the benefits of the invention over again we pointed to the