so what confuses me is what the display limitation covers i guess there could be two things within the display limitation one being able to fix the and we have this example one in the patent which seems to not require the sec of the house and you to agree with that right it doesn't require the second of them your honor if i could be try help with the court's viewpoint of it and you can of course stop me when i run astray i think you're right the parties my friends and us referred to the display limitation is a shorthand of a display want to take action but in actuality  two things the data has to be arranged to represent the physical geometry of at least a plurality of the stacked two segments in the furnace so it has to be arranged that way that was added during prosecution to overcome a prior art reference which showed things like the actual buttes of the tubing in the sense of the wall thickness and the like and they said we're going to add a limitation beyond merely partitioning the data and a lot and required to be arranged to represent the physical geometry of the furnace and just to be clear at least that the term is that the data is or are arranged which is a weird formulation you mean that the visual representation of the data is arranged that and that's that that's how it's used throughout the specification of the file history as well your honor if you look at the specification one of the strongest indications and really while it's a claim construction issue it comes down to a relatively start question what do you really you're losing me again because  you've got these two different requirements with in the display limitation one is it's arranged so that you can determine the location of the defect in relation to visible geometry of the other one is would fit with an example one i think what they've been missing is that there is no displaying of the data so that it's arranged to represent the physical geometry of the stack tube segments and i think that flows from two things your honor the first is the specification at the bottom of column eleven discusses example one which is the strip chart and it says that's only an example a minute says other ways you can do it would be to display the physical geometry of drives a contrast between strip charts and and then you have to rely on the prosecution history as a disclaimer of example why not no i don't your honor with due respect example one matches the strip charts but at the end of example one column eleven around line fifty six it says the strip charts which is example one it says is one way that you could utilize the some aspect of the invention and then it contrasts the two examples two three or four  saying another way you could do it is to show them in their proper orientation or to show the physical geometry of the furnace so i agree with you that example one is reflective of norco but these claims you don't need to rely on the file history or any disclaimer anything like that the claim language which says that its range to represent the physical geometry is quite different than the strip charts which have no geometric component in the sense that there are time base to add the requirement that they be arranged to represent the physical geometry so as soon as that amendment came into place it excluded the strip charts an example one and holistically if you look at the entirety of the intrinsic evidence with d respect i think there is no other conclusion you can reach the first thing is your honour's the claims before they were amended only require that you displayed partition data and the data was partitioned so you could show different tubes for example that would read on example one or on the strip charts because they display partition data but in addition was made that our friends essentially ignore and it must have meant something additional to get over the prior art to add the language that is arranged to represent the physical geometry of the stack tubes in the furnace that was specifically added to the claims and effectively if you say it reads on the strip charts which only partition then you're ignoring the language that was at it you're ignoring the language of the language that was it could have been directed  in the claims your honor if i could direct your also attention your honor the court's attention to the file history and there's one page on which we can see that specifically your honour's it's in the appendix one and i'd direct you to page one four nine three five that's one four nine three five and i'll wait until all of your honors are all there please let me know when to proceed to its volume one year on and if you look at and the claims are all the same so we can just look in this respect you can look at claim one for example before the amendment the claim is merely said generate a display of said partition inspection data and that partition inspection data if you look at the prior clause was already done to show that inspection data relative and correlating it to the physical geometry so what was already required by the claims before amendment was what you have in the struck charts which is show a thin surface for example a thin wall on tube eleven that was already required but the claims were amended to add the requirement that it be arranged to represent the physical geometry of the furnace that took example one out of ply specification tells you example one doesn't do that effectively at the bottom of column eleven and the explanation is clear if you go direct to court a few pages later to one four nine five zero that's one kinds at the bottom of the page they are with the amendment they explain four and a half lines up from the bottom by contrast in the furnace troop inspection system and method of the president vention the claimed invention the collected is displayed such of the date as a range to represent the known physical geometry of the furnace this is important the next sends the collected inspection data is not merely correlated the particular tube sections of the furnace so there explaining what they added no longer is a strip t enable you to determine the exact physical location and that's why it helps us with due respect around to the point is that the claims before hand might have covered something like winslow because you could decide in to believe them that there was a defect somewhere but what winslow didn't have and what this amendment overcame was the idea that you can do which is very important a refinery these folks may not have the the background to be able to look at a strip chart and know that they can count up eight tubes by looking at th chart and it shows them a quarter of the way end over that's the first part war we looked at as being a display limitation of the words that you have a short script or or actually forms geometry or that enables you to we're in the section of two being that the effect exists and that was the problem with winslow just gave you an approximation right right but i disagree with that premise i think that what happened on the str on the other ones that you think are an innovation i would say the following the same data could be contained in both charts but represented and transform very differently and here's why if you look at a strip chart and it shows two twenty six above two night teams there is that many in between it's a different graphical representation i get that yes but is there any different it's not required by the claims to be different data it could be the same da might be able to determine where the bands are but here's the trick your honor which is because stripped parts of time based on what they're doing is just doing things by time and because the pig is what they call the thing that moves to the inspection system because it moves a differential rate just because you see something a quarter the way into the struck chart for example doesn't mean that's where it actually is it leads to all these false negatives false positives danger for people working at the i thought it was the problem in slow and in the starting to talk about the fact that the pick is just time based and that there were might be discrepancies between the actual location and where the data showed up in the chart but but he just said a minute ago that the data is  example if it tells you the wall is super thin at a point the strip hart might tell you was super thin and the invention might tell you the wallace then so that data would be the same but the advantage of the patented feature which displaying it pursuant to the actual you said the data is gathered in the same way and the paper gathers data in a time base and it's not any different that the claimed invention right but then then what's required is the computer executable program then transform that data and figure out where it would be in terms of the actual physical geometry of the actual furnace too which is much different if i tell you we're leaving this courtroom you know it's the same data and it's the same it's giving you a different graphical representation i would i would say your honor that it's being processed differently to determine the actual geometry and that it's being represented differently the thickness of the two for example may be the same data but the relative distance from one band to another may be quite different because the arment in the claim now is to represent the physical geometry let me give you an example we know that my understanding was that norco allowed that level of perception even though it viewed as the problem that the invention set out to solve what we know from the winner in this record is it tell me that the norco data it is less accurate than than the graphic you need to show but that's not just tell me it's in there somewhere you more generally i will say that i can give you at least a citation where the experts and the decadence explain that the strip charts being time based for less accurate and reliable i will have to look at whether i can give you a specific one on norco as an example of those stripped charts i would have to mark up because that's what we're relying on but with due respect your honor i don't think it needs to be because one thing that is clear is that where your experts say the norco suffers from that view because i had understood before that the only difference between norco and what you say of the claims require is the look like to  was easier to use not the plate of wood and i would say that and i will i will confer with my colleagues and i apologize to the court for not having that citation handy what i will say is where we are resting ourselves with the idea that we all agree and i think our friends agree that norco's a struct chart of the type of example one and the specification tells you which is the single best reference for interpreting the claims of course but it doesn't understand and you seem to be wavering on this it's whether the data is the same or different i would say that it is the same it's the same it can be represented graphically in a bunch of different ways you may have come up with the best one but to say that concentrate on the time base notion of the norco one suggests that the the patent invention or the claimed invention is somehow better if it's the same exact data is confusing it's not really the same exact data in the following sense your honor and this is where and i apologize if you say to a friend paid operating any differently collecting any kind of different measurements any kind of different time based things is a doing anything different than the strip chart i can't say that it is your honor but here what i'm saying it's the difference and when we talk about the data that maybe the reason that you characterize me as wavering is because we're not meeting in the middle on where what we're talking about fred what i want when we're talking about data i'm talking about what kind of information gathering right and i i sense that you agreed that the pick is not gathering any new deck data i agree out of the same data or that so the difference is in the way the data is presented in the truck stop not merely that your honor when we talk about data and i'm a analogize a two hour drive home your honour's it may tell you that eleven minutes into your drive you hit a pothole ok it may tell you that information and but if depending on traffic depending on whether the president's caravan is out there depending on the weather eleven minutes  just like these pigs operated a different speed eleven minutes in you may either be still on constitution avenue or you could be in different parts of i sixty six i may know the road you're on where you don't know where the aspect of the invention that was amended in a aspect of the invention that's in examples two through four and not one goes to the idea of taking that reorienting at rescaling it laying it out so that you know where that pothole is in the road not just that it's eleven minutes into the dr in the simultaneous briefing that we did last wednesday night not satisfactory to me so try to try to better ok well i will tell you as a threshold matter of course with respect to the cases that we cite for example the bernhard case and the say that when you have a computer that's processing the information and that's the one that's generating it right if if the only put inside the computer processing of the information to the extent the display limitations show me a better picture that gives me a better understanding visual display of quantitative information there are lots of ways to do that their books written written about it why is this not entirely better visual display more pixels sure better processing to to populate the pixels faster sure this is entirely up as i understand it about the content of the picture yeah and that's where i would respectfully disagree sort of answered two ways the first aspect is inherent in the display limitation is additional processing of the data i think even our friends don't disapprove that the following sense that inherent in there what you're going on a transformation going on when you take data that's merely correlated and partition relative to two sections and then you have to arrange the data so as to represent the physical geometry this is not necessarily a simple task because the fact that it moves at variable rates and its time based moving variable rates the information in the data is being transformed before it's just being displayed it might be a closer question on printed matter if you put aside the computer aspect of things if all you did is you had the original claims that were correlated and partition data and merely displayed what you already had but here you are transforming the data you are arranging the data so as to represent the physical geometry of the furnace and that requires transformation requires reorientation of the tubes it requires rescaling that data is being manipulated so it is not merely a matter of just printing something out differently it's a matter of taking the data you might have collected from the tubes perhaps assembling additional data with and you've asked me to accept that we're not going to rely on the computer distinction drawn in lowry and in bernhard the fact that it's doing the processing i would say beyond that that you're not claiming the content of the information per se the printed matter cases i'm familiar with if you look at praxair if you look at king pharmaceuticals you look at the variety of they're talking about merely claiming the content what's on the sheet of paper and if you look and you distinguish that for example from just a final for example where you have categories of things here you're not claiming displaying x y z xp or say it's not claiming the content of the information and i would say beyond that there's a functional relationship that is distinct from the situations for example in the end guy case and in the king pharmaceuticals case where the rest of the claim can be carried out without and it doesn't affect anything just the mere provision of an instruction chart here our contention i understand that the court may or may not accept that our contention and our belief is part and parcel of this invention and really what distinguishes it from the prior art makes it a great invention is that display step which requires that you manipulate the data you have to arrange it so as to represent the physical geometry of the furnace tubes and then least that i remember refers to it as and on sale by which is it and if it's an on sale are which if the method system's computer readable medium or so i say i see it is more and and we got involved at the appellate stage your honor i see it as more of a public use issue more than an on sale bar issue in the following sense just so everyone has context of what happens here some of the claims are system claims for computer system i think the three things i just mentioned the ones here you write are right up on i think and the idea is the idea is there's no contention that we let's say sold to norco the software itself or the norco practice of software itself so i'm not trying to get out of the idea of one of to be by the fact have utilized the argument goes may have utilized a claim system to deliver results i think under the sports president if it met the other factors one of to be you could end up in a situation where that's a  though we didn't give the public and didn't give the customer that software point is that's not our argument but it is not a public sale in the sense that we didn't sell the software system we had the seller the methodist and this may not make any difference but i think it still would agree with your honor that you could view the system use of the system claims and then the sale of the end product as that situation about the client a little murkier i think in the end of the day we would concede and which we strongly disagree that you get there but that if you carried out all of the steps if it had all of the elements that we view it as a as a use in the sense that we used it but we sold the product and whether you wanted to do one or scale attack and say that was a public  sale that was a on sale bar i think you get to the same place i wanted to make it clear that in our appeal we're not intending that there is a difference in the sense that because we kept it to ourselves that it couldn't generate a want to be that is not our  there there i agree with you on claims thirty and forty hopefully we've made that aspect clear which is those both rely on something called the ben to tech feature where there was an automatic detection of bends and there's one thing that's very clear from the record that we emphasize is if subpoena that you would have to find that it was actually used in the performance of service right we don't believe that they've proven by clear and convincing evidence that there was capability in the actual code that was used to generate more code but in addition to that your honor is correct if they didn't use that feature in terms of generating it then we don't think in that circumstance it would generate if engine type of an issue think for example making widgets in a factory or on or just because you have the capability in the factory of doing something else it doesn't put it on sale with that machine here if they didn't utilize the function which again we disagree it was even available that it was even the executable code that was used could have done it but clear it's very clear it's very clear it didn't do it to hold us to an on sale bar for some capability that i guess theoretically could have been on our computers capable on our computers and never used i think that would push walk further than either fin jan or fantasy sports fantasy sports would allow it would be on just the fact that we have some capability in our computer that wasn't news you know but maybe there's a difference between a feature that's commented out and could used and featuring which is in the program which could be used but just didn't happen to be used as part of somehow apply to something we didn't use and go in carrying out the the product i would submit that it would be wrong to hold us responsible for not using some aspect of feature even if it did have the capability in our computers of doing it but i don't think you also need to get there disclose it wasn't commented out but it was the feature was in the program and the program was use isn't that sufficient even if because of the thankful circumstances one feature of the program was in use i would disagree in the circumstance and here's why it's not like we sold the product to a customer then could use or not use the feature as an fin jan as in fantasy sports the mere idea that in our computer system like we could have done something that we didn't do even if true that would create some kind of a bar i would look at for example the electric battery case from the supreme court which talked about the actual use when manufacturing something putting that into a want to be kind of a important question and i actually respectfully disagree with your own respectfully which is here's what i get the idea of you having put a program lots i sell to judge toronto that has a capability in it to do something that i've commercialized and put that on explanations as to why mistakes were made the first time around all of which were incorrect and inconsistent with the record and the court below went straight through that every single aspect of it while example the court did go through realize that i was not looking at the earlier version of this that could have been in new york harbor in fact i looked a few pages earlier i was seeing that this was a two thousand and four program which of course i could not use for let me give you the different ways he said that the only automated system that was in effect was mr von duran six algorithm averaging system that's a composite data marker calling it the automatic system he volunteered and referred to it that way himself without any bleeding from me on eight different occasions and the reason that it doesn't show x is because when it popped up there were false positives he testifies and he went  manually marked each and every one of them that's why they have black tick marks instead of axis the way that that testimony that supposedly exonerating testimony was given was this composite data marker couldn't exist until and i'm certainly not a computer science guy so this code you don't have to be you honestly don't have to be the when there are experts say that this particular code was used it's no complaining about and say was commented out it is the earlier versions in response to our argument that they anticipated playing number forty which required the you get a sense of your experts testimony and know it's the automatic been to a new character identified ever in the record was the composite data marker so he didn't testify to it once he testified to it eight times and he described how it didn't work how he had to override it how it made the processing quicker it is impossible for it to be an accident when he repeated it eight different times the argument that x marks the spot and there was no way a mistake people make the state and i effort to take back some without a good reason and you're insulting on the land explaining how you made the mistake and why you made the mistake and it may not be credible if you were in front of a jury it may not be credible but it but it doesn't seem to me that a court can just say oh well forget about it i don't believe it's as the district court said it's not credible that's not what the district court is supposed to be doing actually it is up to the third circuit principle if you court takes a look at the delbert person or a case the third circuit lot page three ninety two so the question about whether or not you have created an explanation of confusion or if you have confirming information is reviewed on an abuse of discretion standard and so the question of whether or not that information is satisfactory that's the word used in the third circuit is a determination made under the abuse of discretion is nancy but it's not  another word of using the word plausible or satisfactory that are also used in the sham declaration doctrines that the court has to be that just like in a down challenge that has to be the determiner of whether or not evidence that contradicts sworn testimony is admissible and in this case it's an if this ability determination under the law just like delbert just like whether or not state of mind is relevant or any other admissibility determination and the trial court has to have discretion in that connection and it is entitled the substantial difference if the court has any question whatsoever about whether or not the information in the exonerating claims was correct i would ask for take a look at the supplemental declaration mr shafer and mr raul in the record nineteen one ninety six one eighty four through nineteen one ninety five and i do not know what about whether or not the district court charged its discretion properly then i think that that resolves it because it's not a question of opinion we're looking at the physical documents and what they do it is not a question of whether or not the expert interpretation is or is not in a particular manner it's straight up to document what you have is your saying the documents contradict the testimony of the corrective testimony that expert shows testimony that that's not what this you know that's what a trial well i would also say that the courts i will respectfully disagree but also say that the court would have been justified in excluding going to thirty or rule sixteen because it constitutes expert testimony as to whether or not a composite data marker was a part of the software both were violated rule thirty six was violated where a thirty six witnesses was to testimony was contradicted by other understanding i know your response had something to do with the idea that the program at that stage created false positives yes and therefore you wouldn't expect to see  thought in his corrected testimony he said i can tell this wasn't used because it didn't produce x is in the norco charts right yes an additional contradiction to his original test something but as an explanation there as  why his original testimony about the use of these things was inaccurate and he may be wrong he may not be believable but i just don't see how you can say that that testimony has to be dismissed as a thousand and four that's on the face of of the software i don't have to reconcile that when he's saying i used the automatic version and it was the six party process he says  eight times i don't have to reconcile that out and when the x disappears it apparently disappears because he's manually marking each then if he had just left the automatic system on apparently it would have produced an  does testify and it reconciles away the conflict that he manually marked each then and now with my time remaining i think you should turn to the display limitation let me let me explain that as as simply as i can partitioning has been conceded throughout this case that the data was partitioned what that means is that the data is reconciled to some physical object in the furnace imagine that it is because you can tell where they're going through and yes what happens is an ultra sound system you need the system to be perpendicular for with a wave to return with enough power to get a reading when you go into the curve what happens is the wa different images in our arguments about the different images is that the two dimensional strip chart is not merely time based once you've partition it you cut it up into known slices say a fifty foot two and now you have reconciled down the error term look at figure four for example in the north over four and it shows in the upper right hand corner positional location within two tenths of a foot and it's very clear in the record that that's what is being given the only thing that happens in the difference of the making of a two dimensional structure and the other figures for five and six is that those tinker toys were all placed with one color and the let me see if i can find the fin sites very quickly  the norco report it appears in about half a dozen places and i just need to find it for you tool it says the position module below that includes actual pitch and roll sensors that continuously monitor the libertarian orientation of the tool during an inspection this information is essential to properly identify the positioning of the collected data same data well i may be but i'm just looking for a site that tells me that so it is maybe i'm completely misunderstanding this and it's very likely that my sense is that the strict  point and so it doesn't show it doesn't shouldn't use exec graphical representation and the segment links may not even be the same for each to one of the chart in terms of time you may have one the to an actual you know it either has to stretch it out or shrink it to make them all the same as it will with that's correct when you move from point a if i understand the question when you move from figure three to figure five you just stretch the data to a common length you flip bar two over number one flip are three over number two put bar four over number three and so on that's the only difference that's the only processing in a wall that comes straight out of a three and figure far is what i've described taking the data attaching it to a certain standard length and flipping it back and forth can give limit let me see if i think what my understanding is so if i'm looking at three or four  or in the other one or more like a black line exact that is the information that identifies the band's career from among other things the tilting of the censoring to correct right so so even though the horizontal access is something in the spec so that we have confused slightly different things right we have a question a new color which is not a clean construction matter and we have a claim construction matter is so just focusing on that claim construction is there something  tick or a white stripe right the bottom ten yes i believe that's on the bottom of the ten roughly in line fifty in that range but will be happy to provide that specific reference to you the other part that is that it appears  when you transfers over to column eleven and they're discussing the efficacy of the norco type report they say you can determine problem areas with a single glance which is the same language that is used to describe figures five six and nine after the data is stretched and flipped and so in so far as its capability to tell an operator or sin of ordinary skill what's going wrong with the furnace the same that if there are explanations or crossbreeding evidence you should ignore the affidavits but one thing answers that i haven't heard any response to which is there are two expert reports that were submitted explaining why there was no anticipation those can be found in the record your honor at eight one eight six nine one three seven two six and a one eight seven three one three six seven and so those weren't thrown out so you know the very least have material factual issues the record also makes clear that there would be x is not might be x s but would read the axes even the matlab m or ben direct am program that my friend referred judge drano to on page eighty one six nine eight eight indicates that there would be in the code x s place if that those routines have been run so irrespective of what you find your honour's irrespective of what you find with respect to the display limitation at least claims thirty and forty there are disputed factual issues even and respectfully in my friend's exchange with your honor's you saw the factual issues where in the code is this what code was used the record below is far from clear this is not an issue that should have been resolved with respect to claims thirty and forty on summary judgment so at the very least there should be remained of those irrespective of where you end up on the display limitation with respect to the display limitation i think it boils down respectfully to my friends to this which is the claims that i pointed you to the square earlier your honour's were amended type of strip chart an example one there's no dispute i have a number of citations to tell you about the accuracy of strip charts of which norco is a type i can't tell your honor standing here today from the record specific citations on norco this way of displaying this way of processing and displaying information has problems and norco is one example of awesome is this there is issues could be coming from two different things they could be coming from the fact that the prior systems detection sensors are not good enough and you're getting problems because the data is bad and your data sensors in your programs or whatever you do better at getting accurate data and where t are or what you've done is take that data somehow and transform it in a way in the nonstructural parts that make it a better representation and i think in fairness you're i think relying on the second argument not the first because if the data is the same in both instances in norco and invention and that it either has the same problems or it doesn't say i think you're on it respectfully your honor i think it comes down to this and i third one is easy to use and i think we keep stumbling about the second one here and i'm not seeing any and that is that the norco charts don't give you the same level of accuracy as the short displayed graphic let me read something into the record and then can answer your question in connection with it and i'll give you the following citations your honour's a one four two three zero three three t and that would be the primary one we would rely on that is by one of the inventors a one eight seven five six two five eight that's by the experts a one hundred seven four five by the experts one nine zero seven five through eighty by a to like there's two answers to your question just like respectfully and this is the best i can do the first one is norco is just the use of the strip charts that these citations say were inaccurate and unreliable and hard to use so do they say norco in those citations i'm told that one of them does when any event when you say these systems are no good in norco is just running that system then i think you end up in the same place but here is where the rubber hits the road on the whole thing the claims before they were were required displaying partition data so that the claims before they were amended said show us which to the defect as in they already said that and then they were amended afterwards to add an additional requirement that they were arranged to display the physical geometry of the stack tube segments that was a change that mask the bottom of keep column eleven which makes clear that whatever they are strip charts are not arranged to represent the physical geometry of the furnace no matter