please the court saying construction except for the claim construction that this court mandated in communique one was not completed in this case until the jury charging conference after the evidence was  however once the trial judge had established that the charging conference that all words other than location the syllabi in the claim would be given their ordinary meaning judgement as a matter of law should have been granted should not have gone to the jury because the defenses that were offered by like me and in this case turned on interpretations of claim language that were either contrary to what this court the point that's made in the bridge brief that when they moved for summary judgment we responded that there were facts in dispute and that that was one of the reasons that your children should not grant summary judgment against us it's important to remember the timing of reports and at a time when lott meehan had just informed us that they had in fact changed their system we didn't even know precisely what the change was we thought we had a good idea but that's why we said at the time that  minimum there were facts in dispute because there hadn't even been discovery on the on the act on the existing law we in system given the fact that the matter had been up on appeal once before a lot of time and gone by and apparently a change had been made however once we got the expert reports after the motion for summary judgment was denied and we found out exactly what the change was it became apparent that in fact there were no facts in dispute but by that time we were weeks away from trial and that's why we proceeded to go to trial what i'd like to do your honors is to review the three arguments that are made by a lot me and supports the jury verdict and show you why in each case they turn not on your shoes of fact or a dispute a battle of the experts in law means words but they turn instead on through your and nonstandard meanings that were given true i mean that's the ultimate patients really however i think that we win on all three and let me explain why the three arguments were number one the servers don't create the communication channels and sessions that the servers are not linked to the internet and having a static ip address and that the servers don't perform all four functions of the location facility now that's actually it collapses to two arguments because the third of those arguments  that the location facility that that they operate doesn't perform all four functions is really just the created argument phrased in a different way their expert admitted that two of the four functions were done by the lobby and servers and he simply made the argument that third argument by saying well but the create communication channels and sessions argument is not done so in reality we have only two arguments to deal with the create argument and the static ip argument so if i may turn to the static ip argument for the question is does are the  location facility linked to the internet and having a static ip address well if you turn the page thirty two of the red brief you'll see a picture that supports our point it's it's a drawing of a log me and system and it actually shows you the static ip addresses of two of the three servers and it shows them in the cloud so there's no question and this is consistent with what their expert testified to so no question t of three servers are in fact linked to the internet they're in the cloud and they have static ip addresses as shown and that picture also shows you that the third server the database server is linked to the other two static ip address through which all of the computers in their system have a direct connection to the internet now numbers to handle that is not a limitation of this claim and that's actually contrary to the opinion of the panel in the first case and communicate one that said that in this case as in virtually every patent case a means one or more we showed that there were several static i addresses and those addresses were used to link to the internet the idea that the linkage has to be that the linkage has to be through one to all of the different computers just is not in the client so what about the second argument the second argument being the create argument what happened here is that there was no disagreement about what create means as a as a plain an ordinary meeting to create dr bad a charge you suggested well create means bring into existence we didn't have a problem there that's about the charge he said he was using that definition when he was doing his analysis but in fact what he was doing was adding to it when you get down with dr bell charges real definition for create is bringing into existence without using any information from any outside source because that's really what his argument is here he says that it missed the or apparently he didn't he didn't argue with dr grimshaw's testimony an explanation that the communication channel between the host and the remote is in fact a data structure that is written by the locator server by the location facility and it resides on the locator sure we didn't argue with that he didn't even off about the actual functioning of the source code in this particular instance he said that instead he didn't think that that was creating the data communication channel because the location facility was using information about the location of the host that it got from the host and location about the remote that it got from the remote and that simply is not consistent with a plane in the ordinary meaning of create the analogy that we suggest in the blue brief is thinking that the grocery store that sells sugar is somehow creating the cupcake that the chef is making by using that sugar no the chef is a painting the sugar from somewhere else but there's no doubt that it's the chef that is making the cupcake now not only does that violate the plain sense of the matter but it also violates what this court said in its first opinion about the use of dr gangers statements during the greek salmon nation because when dr bad to charge he was asked well if you consider all of the servers working together is it fair to say that they created communication channel session he said no and when asked why he said well i turn back to something that dr daniel who was there once expert during the resume a nation process what dr ganger said dr gainer said that the location facility itself had to create the communication channel in session and so that's why i say that there is none here well this court instructed the pardons that itself was a misleading and that's had to even put no four from the original opinion itself was named this leading phrase to use first of all dr ganger was found not to have created any prosecution histories stoppel in his statement and that was the specific statement that was the issue in the first appeal was not prosecution history stoffel was being brought back  case just by having the experts say that that's what he relied on inappropriate for him to do that and so your honour's there really was no skew the facts in this dispute was simply a matter of how the facts were going to be applied to the claim using definitions of the playing terms that were inappropriate now there's one other point that i want to make about the way  charges refuted or attempted to refute infringement in this case and that is it doesn't appear much in the breach but it was significant actually during the trial doctor by the charge he actually attempted to make the argument that  the location facility was that the allotted me in a situation that was not a location facility because there were a number of different programs that were functioning together a lot of time was spent with this jury  talking about how many different servers there were and where they were and how many different languages the computer program source code was written and you don't hear as much about that in the  prominently at trial and i wanted to say that to the court only because again that was an issue that was supposedly put to rest when i didn't work it was written in respect to programs i understood the initial opinion to be dealing with different computers not question not answering not addressing the question of whether these are different programs even though a single program could be spread over multiple computers although your honor i think that the court directly addressed that when it said that has to be treated as a single program and for purposes of analysis of the locative facility that issues does not seem to have been addressed by the court i think it was respectfully your honor and i think that that's in fact how software works in the world in other words and there was testimony from both of our experts about this when they were addressing how common it is for programs to be subdivided in distributed when they were when we were dealing with the question of whether there was in fact support for the claim in the specification that made it clear that the way any commercial program works really is that it is broken up into a lot of different programs  and those programs run separately but they just make calls to each other their lengths but the one program will call another when it needs that other program to do something and i and i believe that that result was say that he read location facility to mean a program when this court had said no location facility is software that does so much of software is a plural noun software is is the definition of it is it is a program or a group of programs and so when dr about a charge you redefined location facility not just software but as a program was again going against what this court h existence i don't see where he limited it beyond bring into existence and that's precisely what you argued to the p t and want to be the meaning of create that is the proper meaning doctor by the church he said one thing and then he did another he said that that's what you thought create meant but then he went on to require something more than just bring into existence because there's no question that the communication channel in session they are just a data structure that is clearly written by the location end it's written in the memory the location facility and there was no contrary testimony on that so when dr about the charge he started saying well you see there just a data structure but the claim turn isn't it to create a communication channel or communication session yes so why is it wrong or why isn't there substantial evidence given his testimony that the remote host computers create the connections to the servers why isn't that  because they don't your honor if you can think of it as pipes if the host has has created a one type going in for joe occasion facility and he were most created another pipe going in the location facility you can't go in there and into you create the third the plain language says create the communication session and channel between the remote and the host and that between part is not created until the claim construction argument although what is before this court is the question has mr shaw put it of whether the clean's as their claim as construed reads on a log means accused products and this court is held time and again most recently in first also in cases like to sarah and those are kept around that that is an issue of fact decided by the jury and reviewed by the sport for substantial evidence and there most certainly were disputed issues of fact as to the four claim limitations two of which are related which we claim there is substantial evidence to support an infringement verdict and your honor is correct we only need one of them to be supported in order to affirm the jury verdict i would start with the creating limitations because i think fundamentally there is no dispute as to what they require they require that the communication channel and sessions be created not by the host and remote computers but by the gateway in this case the qs gateway server the location facility  specific and as for that matter that was a pure battle of the experts our expert talked about the charging testified referring to the source code which was put into evidence during his examination that the host computer creates a communication channel to the gateway the remote creates a communication channels of the gateway and then what the gateway does is it forwards the data back and forth so that you can communicate it's has to be that way because the host computer is behind a firewall it would be impossible for the gateway to send an incoming communication to the home because the firewall that inhibited instead what happens in this is why you need the solution is that the host sends an outbound t c p connection to the gateway and expert agreed with this on page twelve ninety six five of the appendix he agrees and he says in his words that the connection between the host and a gateway server is quote initiated by the host computer as an outgoing t c p connection now what does zero one rely on on the other side it relies on really only a paragraph in dr grimshaw's direct testimony and i think it's worth looking at what dr ben try actually says on this it's on page twelve eight  appendix and there's basically only a page where he talks about why he thinks that in the log me and system it's the gateway to server rather than rather than the host and remote computers that create the communication channel and the court testimony is on twelve eight zero nine beginning at line not and he says the communications channel is the high level abstraction that moves the bytes back and forth could be wrong but it seems like you're trying to climb a mountain you don't have to climb right now you just have to show there substantial evidence for your position quite right i mean i feel like you're spending a lot of your time refuting lies and their position is wrong all i was trying to do just what i certainly take the point and all i was trying to do was show why the jury was fully entitled to reject dr grimshaw's testimony as unreliable unsupported and incredible and accept dr about the charges testimony instead and i just want to direct the court to exactly how sparse and undeveloped dr graeme souness testimony is because mr shank would have you believe that he gave detailed testimony that a jury was required to accept such that i couldn't it couldn't possibly have ruled our way that's all i meant to do the passage begins at nine and he says the reality is it's just some data structures and  plus plus program somewhere that hooks all these things to i gather and it's exactly the same excuse me with all other sort of primitive sick people think of as being a thing so that's what's going on here that's all he sets the jury was fully justified in rejecting that he doesn't he doesn't refer to any product documentation he doesn't explain what the data structures are mr shuck makes much of the fact that our expert didn't specifically say in hyperbole dr grimshaw talks about data structures and that's wrong there was a reason that he didn't say that because it wasn't clear what data structures doctor in charge even relied on so the jury was perfectly entitled to decide when faced with this battle of the experts that are experts testimony on this i need to create limitations were sufficient i'd say a word about the ganger declaration because that i think is a established a connection with the gateway and the remote has established a connection but there is no communication channel until the gateway performs its function so that is the way that the gateway creates the this morning is far more detailed than dr grimshaw ever gave the jury and even as articulated in that way that is their position that is a factual issue that the jury could decide what our expert says was you have half the pipe being built on one information and sends it along back and forth and back is not creating that is that most facilitating the communication or allowing the host and remote computers to use the  facts is a cynic qua non of communication and communication will not work without the gateway performing its part the gateway needs to be there for the system to work but the question is not is the gateway somehow involved in the communication of course it's somehow involved but the limitation is the channel has to be created by the gateway and this was again i don't think this is disputed that it's not enough for zero one to show that the gateway is used or that it it facilitates the communication it has to create the communication channel it is not enough that the communication that that happens over the channel is facilitated by the gateway the channel is initially community created by the computers on either side and then the communications itself even if they are facilitated i mean they need to be because that's why this solution is essential just be clear that your record evidence actually suggests that the gateway isn't involved at all in creating the communication channel or is it that it doesn't create it because the host and remote computers participate i guess i'm i'm trying to figure out are you viewing it as an all or nothing sort of thing twenty people or building a bridge ten guys start on one side ten guys start on the other side there's only one guy that puts the final piece in the middle that makes the bridge now passable is he the only one that created it i'm trying to figure out what your understanding exactly create is in terms of the record evidence i mean our understanding is that this is a it's a plain language term it went to the jury on its plain language meaning bring into existence and our expert i want to it into existence all twenty people or only the guy that put the last piece i think in in eight states where that was the claim term and those were the facts that is the factual issue that the jury is entitled to decide our experts said in that situation in this situation the nine people on one side the ten people on the other but don't include the one guy who put the last piece in the middle that brought it together he certainly didn't suggest that the fit gateway was the gateway a involved in creating the channel or not gig was certainly involved in the communication and even if the gateway is somehow involved in the sense that that's where the two pipes meet whether that needs the limitation of the claim is a factual issue for the the if it enables the communication or it is used by the two computers in making the communication it would not be would not be creating the channel but again that is a battle of the experts so we're discussing this now on a cold record the jury heard both experts argue about this both experts were cross examined and zero one left this not to a claim construction issue but to the affirmative evidence of dr grimshaw which was extremely limited i read it to the court and of and trying to cross examine talked about the charge on this point who relied on the source code and put it into evidence and we would submit that that is plenty in order to affirm the jury's right to pick one expert over the other in determining whether these limitations  happy to address the the other limitations of the court which is that i think quite honestly that one is sufficient to affirm the jury verdict there were some points that were made with respect to the new trial arguments in particular with respect to the ganger declaration which i want to make sure to address which is mr shank is contending somehow that again your declaration is off limits entirely on green and and that it was not something that you know talked about a charge or counsel was entitled to refer to the certainly nothing in the court's prior opinion that suggests that and it's zero one actually thought that were the to create the communication channel in order for there to be infringement of the host in the remote computers do it then there is no way do you agree with mr shunk and i had one of the careful not to put words in his mouth and i may not succeed but do you agree with him  his response to my line of questioning about the original decision and no one communique that it not only covered the issue of multiple computers but also covered the question of multiple for any reference to this issue that you're on a raises about programs that is something that was again open on reason that if mr shank truly thought that an argument that our expert was making was contrary to this court's opinion then that would have been an appropriate opportunity for a daubert motion or at the very least an objection neither was made this evidence and testimony went into the jury it was presented to the jury and zero one relied didn't try to exclude it didn't try to  to it instead it cross examined based on this and this response closing included a mention of this this was an issue again as in her saga it went to the jury for decision as a matter of fact do you think it's artificial to try to  a set of programs that are working together as separate programs as opposed to sub parts of a single program i don't think that's artificial at all and at the very least the jury was entitled to rule that based on the evidence in this case how would you how would you draw the line between those two categories i mean the evidence that we put it was that when you have different programs some of you know two of them are off the microsoft programs are in different languages one is proprietary software developed by log me and they don't talk to each other they can run independently even at one running and not the other two and by contrast what you have in the patent is a claims of location facility that performs all for functions now you can have a single program distributed over multiple computers windows n t or a banking program that's distributed over multiple a t m s that's not what happens here we don't have one program distributed in many areas you have three programs operating independently and the fact that he thinks he can add them all up and get all four functions although he can't because it's very very clear that even if you combine all of the software on the three servers in question there's a point in the the end of the trial in which objections requests for instructions are made and objections are made there's a request for instruction on the the  i recognize you prove not i acquiesced so i didn't find your argument to that in that respect to be convincing where you say well he accepted the the court's decision but you make the further argument that there was no actual objection to the failure to include that that instruction was there was there any point at which judge bolton says that the failure to object would be forgiven if there was a request for instruction which was turned down many judges do that of course in order to avoid the somewhat silly exercise that some would say silly exercise of going through the fifty one c objections that it can go on and on did that happen here that did not your honor in fact on the contrary judge hilton made a specific rule fifty one instruction on fourteen three eighty eight after the charge was given he says now other than what we've already dealt with is there any objection to the instructions i gave or the manner in which i gave that and that mr shank then says your honor i have to one which has already been raised he leaves serves his objection regarding the damages instruction and then he  and and he says our proposed instruction number sixteen said exactly that right i saw that and what troubles me was the other than what we've already dealt with which seemed to suggest that he was accepting that such objections  the jury charge as a whole was not rendered iranians simply because instead of saying generically a means one or more judge hilton decided to provide the jury what's with this court's plain construction of location facility verbatim and then said as your own one requested that all of the terms should be given their plain ordinary meaning there was no objection made to that charge in general and that is correct nothing prevented zero one from arguing to the jury that a means one or more in fact they did make that argument in some circumstances without any objection from us so even if the court believes that it was preserved we have no problem with that because ultimately there was no abuse of discretion in i judge chilton charged the jury i haven't had a chance to talk about our  by the panel on in several different questions to mr fleming were about his peculiar and nonstandard definition of the word compelling program the question now you would agree that the definition of software that you're using in this case is narrower than its ordinary meaning and keep in mind that the first panel said location facility is software so soft what you mean by software is important in this case he was asked question so it is now or are the new ordinary meaning right answer correct dr bad the charge himself admitted that when he was talking about computer programs he was not using the standard understanding of a person of ordinary skill in the art he was using his own narrowed construction which he based on a prosecution history of stoppel argument that this court said should not be relied on as prosecution history stopped secondly there was mention made good on to attempt to suggest that dr grimshaw gave shallow or sketchy testimony in actually talks about the specific mechanism that is created in other words rather than talking about analogies pipes and so forth he talked about the specific activity in the source code and he made it clear that the specific activity of creating a communication channel is the writing of a data structure and he should explain that that is done only by the location facility in the l that was the only testimony in this case about the real nuts and bolts of the log me insisting dr bad to charge he did not respond he was flying on it and if councils explanation now as well he didn't think it was important enough to respond to i i i think that's a bit and disingenuous finally as to the question of the fact that well we were able in closing argument to argue that a means one or more if this if doc if judge hilton had actually given that charge to the jury it would have had the force of law behind the argument we shouldn't have been put t we shouldn't have been required to argue a means one or more to the jury just as one lawyer saying well that's what i think it means your children should have told the jury what this court told him was the case that a does mean don't see a of a fifty one c objection once you proposed the the language that you wanted the judge said i'm not going to give in and there wasn't any objection after that that i c reload the judge said see the judge that he was he wasn't going to give that and this was at the jury charge conference after the evidence was in and then as your honor pointed out he said well other than what we've talked about before is there