because it's true they're called independent contractors but they're not independent ok they're under the control of c b s interactive isn't that then bring akamai into play because it's directional control of an joint infringement theory relying on akamai right correct ok thank you i'm sorry ok so so that's with respect to c b s interactive now everybody agrees including and and as i say this is not a matter of cooperation because again with my painter he doesn't cooperate with me because it defames does but i tell you i'm not sure how much it came up in  the court's opinion below but i notice that you claim to have a staff of providing a user input device other than a personal computer how does your first and then a complaint deal with that who is performing  id there was another point interesting point raised by the district judge which suggests that the specific relationship between the claim and th better requirements according to the latest decisions by the supreme court and what i find interesting is this spite that he was looking for better pages of how this how how they operate and i had and i had separate accounts relating to that to what's being done to who's answer questions know you are i think there's too many open ended issues and that complaint including the first minute complaint and i'll touch on a number of i think a good starting point is this issue of providing a user input device which is present every single claim that's been assert any way controls or directs these individuals that are under his theory providing the user input devices so just on this one basis alone where you've got a complaint like that require a claim construction about when it reference to user input devi that has to be done by the accused infringer the only accusing fringes here c b s entities so it directly requires the c d s entities provide the user of the devices i think additional support from that can be found if you look at other parts of the claim language well so let me ask again that's not any of the named if and it's taking an action is it your position that that would have had it been in the first and then complain as well as something sharing directional control and the latter part yes i think and again this was the first time we heard today that he's confirmed that it's a theory correct he there is a conclusory allegation so that again with so getting back to your original question kind of address these two together here so because there's multiple parties involved there have to be allegations of director of control here we have just  conclusion of control that's it and we know that a simple conclusion that there is control is not sufficient you don't have to even assume that it's being called yes but i mean it it's a little more than that isn't it it's an allegation a third party contractor was hired to do testing i mean when you hire somebody doesn't that implicitly assume you have control over them i don't think so and i think that the simple fact that they're called independent contractors are the antithesis of problems and we were the ones who told them that there's an independent third party that does the testing for us that we're not even responsible for the testing if that's your theory he not only i guess adopted that but embrace that and put it in then he complained but in no way he provide facts or any support for the structure control there's no way i look in that how they were hired what they were hired to do or anything or if they were given specific directions on how to do that that's exactly i mean i see both your sites point to an independent contractor if i hire a painter i'm sure going to tell him kind of specifically what colors and things i like but i might not tell him down to the details cover up these nail holes cover up floor all that or if i hire a housekeeper for instance and if i've been worried about the s tax rules on housekeepers i may treat her as an independent contractor by letting her decide how and the like to do her job within the contours of she cleans my house every two weeks and i'm following you on that point but  allege directional control not only of c b s or this independent contractor that have to be some sort of allegation of directional control over these other users and that it's completely absent that link from within he just talked about the contractors employed well again i don't know there's no allegation in the complaint that it says that all that said i mean it does seem to me that he's not arguing for contributory or induced and cringe but i don't think his complaint creatures the general audience well we don't know that so if  you there's actually a distinction if you look at it in the complaint paragraphs there's the first four counts of them are against c b s the second four counts against c b s interactive the first four summary paragraphs which are eighteen twenty five thirty two and thirty nine for the c b s claims talk about testing and that seems to suggest you're talking about people somehow affiliated with the with the independent contractors but if you compare that to paragraph forty eight fifty five sixty two and sixty nine which are the allegations the summary including allegations for c b s interactive those make no reference to testing so it's again it's just another issue that we have is we don't even know what the theory of infringement is is it testing alone does it reach the independent people who are watching t v from their house and using their own phone to vote we don't know that's one of the problems we have at this complaint if they answered your question then there was the director of control i think you would have to get you have to have some sort because it is a joint french reclaim you have to have that linkage from the name defendants to everybody that's involved in performing the steps which would require that there be some allegation of direction control supported by facts and it's completely absent for both the independent that it requires that the name defendants provide the user input devices but if you look at other language in the claims there's indications of it least the thought of having somebody other than the name defendant perform a step there are several steps that start having somebody do something so if you look through the claims in both of the patterns or steps that start up having a user input information having a user transmit information i think that clearly shows that if the complaint or the draft or the patty was contemplating having somebody else other offended do something they could have specified that and that would have been a way to do it but to juxtapose the two different claim languages in their claims i think it makes crystal clear that you don't you claim interpretation to find that's the name defense that have to provide the user input devices third point i think that i'd like to touch on briefly is this idea of identifying the systems now we agree that in the old form a teen world there was a president that said you don't have to identify the system by name or serial number but you do have to at least provide some information as to the systems and processes that are involved here and we think the district court got it right when she found that the allegations here which are very high level and summary nature that use words like electrical systems and computer processing systems that that level perhaps they describe as best as they can through public knowledge here's a voting system started for this big brother television show they try to identify all the after doesn't that sufficiently describe the system that they think is even in the range of six years that we're talking about here we actually do use multiple independent contractors and why don't we just construe it as everybody that's been using systems for the show we'll get there i think we've got a case law on our side that sa allegations very similar there were two cases that we cited present technologies in the where versus circuit city and there you dealt with allegations that had the same similar high level description of a system that was found not to be sufficient we i think it's system the public can use this system it's available to the public at least some of the steps they can explain you know it's industry it's common in the industry to use certain types of components we tried the system here's what we can discern from the outside they could provide i mean i is the show audience members vote votes are tallied and the like but they could have gone through and said you know we tested the system on such and such a day and here's what our experience we were requested to provide this information we went ahead and did it we that seems all entirely appropriate under and it cost under i just don't know that it's necessary under form eight hundred standard which seems to provide the ability to do a very loose highly paid it and i would i would have still does not apply because of the concession we heard today that it's a joint infringement allegation so you have to at least specify who's doing the infringing of the different parts of the system absolutely interaction writing the system overall as a whole it's not enough exactly who was involved in the realm of multiparty direct infringement claims for me to no longer applies doesn't matter what time were it we could go back twenty years from now when formating was in full effect it does not apply to a multi actor director federal case so regardless of what time we're talking others and they have to give us proper notice of their claim and we talked about several reasons why the allegations do not meet that standard so i will take issue with your question before about that the complaint is sufficient or for me it's it was that my opposition grief before the district court so it's not the first time it's been heard by anybody second of all as we all know the  allegations made in the complaint should be assumed to be correct and then go away to decide as the case proceeds whether or not they they are correct and that makes sense but  don't you at least have to lay out which party in french which part of the patent and which party infringe the other part of the patent well otherwise how would they have noticed what their actual infringing conduct is i thought i did i describe because we don't know that that's something that we would not be privy to but the critical thing is that c b s interactive for example hires an independent contractor to do certain measurements whether the independent contractor says here use my myself own or use your own cellphone we don't know and it doesn't matter because c b s is controlling the actual testing and that's and that's clear from the from the original complaint in the first amended complaint exists supergrass interactive this saying ok you gave us a good price all right oh here's the job that you have to do so they are not to my knowledge participating the work that's been done by the independent contractor the independent contractor hires people or has regular floyd people what how do we know how much control to they have over this testing process well it is going to just be they hire an independent contractor and say here's how we want to run our program you of the nature to establish that it's that it's a reliable system i understand that but he isn't this is the issue if you hire them and say go do testing is that really sufficient direction and i don't  or do you have well yeah i know but you didn't make any of these allegations do you have to hire them and say here are detailed testing protocols we want to find out x y z run test all the do that according to these first patients you're right i don't know what those are a little bit of an engineer they have to test it like the light situation it's like to play because they have to establish that when somebody quotes so it's not as if the