Legal Case Summary

In which we'll hear our argument this morning is number 05-1531 Amado versus Microsoft Corporation. Oh See Mr. McCollough Am I Pronouncing it correctly? Perfectly. Okay, thank you. Sometimes that doesn't happen. Most of the time it is. Let's see you've reserved four minutes for a bottle correct? That's right. Okay before you begin I'll just note there are a number of issues here I would just you obviously handled the argument whichever way you want but Focus on the ones that From your client standpoint you think of the most important And I will just start whenever you're ready. Thank you very much, Ryan. Good morning. We are here today because the district court Aroniously interpreted the in execution claim language Based on that interpretation Enjoying the sale of Microsoft office because of functionality in office that no one has ever used. It then compounded that year by entering an escrow order Two dollars a unit even though the jury and the district court itself Had found that that was not the proper valuation of the invention. Well, I'm confused about the two dollar a unit point as I understand it is just an escrow account He hasn't said that What the disposition of that escrow account it's going to be that is I understand the order that specifically reserved to the future. Now as far as any prejudice about having to deposit the money in the escrow account, you know that's pretty much over and done with. But what are you complaining about the ultimate disposition that has credit down and if so how can we address that when we don't know what the district court is going to do about that? Well, first of all, it's not over and done with the jury. The jury verity was for $6 million. The escrow account presently stands at about $66 million And every month about eight or nine million extra dollars is required to be put into that account. So it is quite a burden quite a large amount of money to put in there. But the escrow account is firm that stops right? I mean then the injunction comes into play and then there's no more there's no more escrow account right? That's true, but the escrow account itself and the way the court did it suggested that the court was going to award two dollars a unit to a motto for the post-verted units that were sold during the stay. Well, we don't know that for a fact. It's simply an ass call. I mean once this appeal is decided then the district judge will make some determination as to the disposition of those funds. There's no doubt about that, Your Honor. But that doesn't mean that any amount in escrow would be within the district court's discretion. As Chief Justice Roberts wrote in the recently decided eBay case discretion is not win

. It's not anything. And indeed as a Supreme Court has noted the court in these kinds of situations has to bring equity to bear. Yeah, but if you look at page 57, I mean the order says the ultimate failure the money paid into this account will depend on subsequent developments in this case, etc. etc. So we don't have a decision about what's going to happen to the month, right? No, no, and that's absolutely correct, Your Honor. But you do have a decision of the court ordering Microsoft to put two dollars a unit in during the course of the stay. And that can be reviewed for abuse of discretion. And there was clearly an abuse of discretion here. He said the district court just he was not bound by the jury verdict in determining the escrow. He ignored it. That's got to be an abuse of discretion, particularly after the eBay case. He can't just ignore an enormous fact on the landscape such as that. And he had more over he applied an automatic rule. He said whatever Mr. Amato wants Mr. Amato gets again in view of what the Supreme Court did in terms of the escrow, not necessarily in terms of any subsequent reward. Again, that's true. But that can't mean that that any number is within his discretion. The patentee in such a situation could ask for anything and effectively take the power of a stay away away from the court. You mentioned the eBay case now. Microsoft did not challenge the grant of the instruction, correct? Well, at that time the eBay case decided you're on it. What is your view on the impact of the eBay decision on this case? Well, I think let me answer it this way. If eBay had been decided before that decision, Microsoft would have definitely argued that no injunction should issue for products that were already out there. Now, products that were going to be released in the near future, that's a different situation though

. I'll note that Microsoft has removed the accused functionality from its most recently released product. But we would have definitely argued under eBay, no injunction should issue for products that are already out there because as a district court found in his stay decision, that such an injunction will create an enormous amount of harm. Not only to Microsoft. But you're not arguing that now. Well, eBay was decided after this appeal was started. I understand. But you're not challenging the injunction on that grant now. I'm not challenging that right now, Your Honor. But I may challenge it if it goes back because eBay has new law and really is a law on its head. And what effect do you think eBay decision has on this $2 per unit escrow? Well, I think the eBay decision says that a district court cannot, for that matter, a court appeals. In this kind of context cannot apply any kind of automatic rule. Equity has to be brought to bear an analysis of the facts and the balancing of the equities. That did not occur here. The court said, I'm ignoring the jury verdict and I'm giving a motto whatever he wants. That's an automatic rule. But that goes to the injunction. I mean, it seems to me once the injunction is issued, the question of what an appropriate escrow amount is not really affected by the eBay. Well, the eBay case was not about escrow. That's true. But the eBay case was very clear that automatic rules in the equitable context are not the way to go. The court has to balance the equities. And I might point out as a district court found there's no reason for an escrow here at all. This was a $6 million judgment. Microsoft is not going anywhere

. It can satisfy that judgment. I guess you could have said, well, forget about it. Stay. We'll just take the injunction. So we don't have to make the escrow deposit, right? He could have. But you could have. You could have said, forget about it. We don't want to stay under those circumstances. We'll just take the injunction. We're only at the enormous harm to Microsoft's business and the business of Microsoft's customers that the district court found. There would be enormous harm for us to for Microsoft to ignore that. That's why it's going. It's actually taking this the accused functionality out of its products. I'd like to treat the in execution language if I may. No, I was going to ask you to do that. Mr. Calloff, because you got some questions on the on the escrow amount. So yeah, look, why don't you get back to your claim construction? Yeah, I hope. Go ahead and do that now, but I want to have a couple of questions on the other claim construction aspects. So don't use up all your time on the in execution. Of course, of course. The special master originally interpreted the in execution claim language to require directing a computer to perform the claim functions. Nobody ever objected to that. The district court adopted it and no one's ever appealed it

. And there was support in the record as identified by the special master. That's an appropriate claim interpretation. And that's the proper one out of the blue. The district judge indicated that he was thinking about changing that and eventually instructed the jury. That well, you don't have to find that anybody ever directed a computer to perform the claim functions in order to find infringement. He never cited any any evidence from the intrinsic record. Didn't have any evidence before extrinsic evidence and never cited any. It's clearly unsupported. That's an error of law. Well, of course, the software really performs no function when it's just sitting in a computer. So isn't this statement in the claim simply and we say perhaps slightly awkward way of expressing the functionality of the software not necessarily expressing a condition of operation? Not at all. First of all, that interpretation of the claim simply reads the language out. And that would make it as the same as first means for performing the function would be the same as first means in execution for performing the function. And I think the precedent of this court requires a presumption that every word has meaning. And there is meaning here. I would note that the portion of the specification that supports this is cited by the special master specifically says that the power of the invention, the point of the invention is in its operation. At the bottom of column 23 of the specification. And that's what they claimed. Now, there may have been other reasons at that time. Of course, I think you can make that statement about almost any invention. That's true. But the patent he gets to claim his invention the way he wants to. Mr. Amato could have claimed this as first means for performing function exit spreadsheet program for doing that

. But he didn't. He put those words in there. The public sees those in the public record. He should be stuck with that. He should be the one who takes the risk of putting extra words. But the question is what does it mean? That's right. And the special master interpreted that through the Markman process. And the court adopted it and no one ever objected or appealed to this very day. So that is what it means. It should be what it means for purposes of this case directing a computer to perform the claims functions. And there was no evidence that anybody ever did that. So that that alteration. Well, how was the jury instructed on this point? The jury was told that it did not need to find that the claimed functions were actually performed in order to find infringement. So which is directly inconsistent with the claim. The claim construction. After the claim chart was given to the jury, the jury that said you must find that the functions were performed. The jury heard the evidence. Then the court said you don't have to find that anymore. That was clearly an indication to the jury that the judge had made up his mind about that fact. That's the only way it could have been interpreted. The point of May 6th of 2005, the judge told you that was his interpretation. The judge says it was a tentative interpretation. And in fact, I would like to address that one. There's no doubt that a motto thought that was tentative

. I would direct your attention to the briefs, the bench briefs filed on this point. A motto filed his bench brief on this point first. If it was a final decision that he won, why was he filing a brief? But the point is you had some notice that this was common. That's right. And then a couple days later, the judge gave us the proper interpretations. The original interpretations. We had no reason to object to that claim chart. Those were our interpretations that said directing the computer to perform the claims function. We only had reason to object to the instruction that came later. And we did. We told the judge when he announced his tentative decision. We told him in the bench brief and we told him in the argument before he issued that final instruction. Let me move you on to a couple of these other claim construction issues. One of the ones, as I understand it, you look at this database file, stored and said memory. One quotation here and you say that requires that it'd be stored in the memory in a particular hierarchy. That is the record field's data hierarchy. And did you ever ask for that particular claim construction? We didn't need it. It's the plain language of the claim. Okay. So under Hewlett-Packard, unless we find that the plain language of the claim requires that you lose, right? I think you have to find the plain language requires that. But it does. It says a database file stored in memory and containing records and fields in the field's containing data. It doesn't on the face of it, say how it's stored in the memory. It says database file stored in memory and containing records and fields

. I understand your contention. Let me move on to the third one. In writing these briefs, it really helps to give some context. I think both sides could have done more of that here. There's the in place of limitation. If I understand that correctly, what we have is the situation in the patented device and the patented software. What you have is a situation in which the data entry is changed and is replaced by basically a spreadsheet entry. Am I understanding that correctly? Close. The first means corresponding structure requires programming that causes the display of spreadsheet information in place of database information. That's the course of on his device there. It all comes in the spreadsheet together. No, in the spreadsheet, in the accused device, it all comes from the spreadsheet. It's only spreadsheet information. That's it. There's one source of data in the accused device, the spreadsheet file, in the disclosed system. There's two sources. There's a database file in memory and there's a spreadsheet file, spreadsheet storage. So the point is that in the accused device, the display information comes from the spreadsheet memory rather than from the database memory. The point is that because in the accused device, it comes from one source. It cannot be said to display data from one source in place of data from a second source. I want to be sure that I understand this correctly. You're saying that in the patented device, the spreadsheet data replaces the database information, the record information. In the display. That's right

. But in the Microsoft device, that you can have both of them at the same time. No. In the Microsoft device, it's only spreadsheet information. It's always spreadsheet information. Always. Okay. I understand. That's it. And, and, and your honor, I'm into my rebuttal time. Well, will, you've used up your all almost all of your rebuttal, Mr. Call, but you've had a number of questions from the panel. So we will, we'll restore your full four minutes of rebuttal. Thank you very much. And we'll hear from a motto now. Mr. Baluska. So, Baluska. See, I got that one wrong. And if you, you know, if necessary, we'll give you the same amount of time that Mr. McCullough will have. Okay. Thank you. Thank you. Thank you

. Let's start with the in execution. In execution here is a term used in connection with an apparatus claim. This is clearly an apparatus claim. It says an apparatus for and the spec backs that up. Both in terms of the background of the invention talks about being software software. Well, how does one define software? The only way to find it is in terms of identifying the functions that are performed when it is in execution. That's the only way to do it. Isn't, isn't Mr. McCullough right when he says that the district courts construction reads out of the claim the words in execution? No. Because the claim reads the same. The functional statement is still there associated with the program. What's? Yes, you're on. Let me explain that. When we're talking about these functions of software, they are necessarily being described when they're in execution. What do the court really do in terms of construction? You're saying that what it means is this is the way it would function when it's executed. That's correct. And if you think about it, every software claim is like that. Every claim that software that's defining those functions, you implicitly read in execution. It does these things. What it does is that lead to the conclusion that the words in execution in the claim have to add something, have to mean something more than what is implicit in any recitation of a functional statement. No, because this is actually, as you pointed out, it may be somewhat cumbersome in the length, but it's really describing more accurately exactly how these are always being looked at. These functions are meaningless except when it's in execution. And because this is an apparatus claim, we are looking for the structure. And the structure here is defined in terms of, of course, these functional recitations

. But that structure exists, as you pointed out, whether it's running or not, it's there. These programs, that software is there. So you're arguing that basically the intrinsic record makes it perfectly clear that when the claim talks about in execution, it's simply reciting the functional attributes of the software consistent with the entire written description. And there's nothing particularly special, unique, inventive about what happens when it's operating compared with what happens when it's sitting in the computer ready to pop up. That's correct, your honor. And if you think about it, like I say, the structure is the same. Whether it's in operation or not, it's there. It doesn't have to be modified. There's no code that needs to be modified, fulfilling fantasy sports requirement, and whether it's active or not, it's all there. And I want to step back, though, to respond to that somehow there was some prejudice here. Because I don't think there was. There was. The only person that thought that there could ever have been any difference in this construction is Microsoft. When you step back and look at what they wanted to interpret, they asked for about 100 terms to be interpreted in this pattern. And we had a special master for that purpose. They never asked for in execution standing alone. As a matter of fact, they asked for in execution only two times that had appeared. And both of those were in the means elements. For example, there's the spreadsheet program. There's in execution there. No request for interpretation there whatsoever. What they were doing is looking at the means, wanting to interpret that functional language. And if you will look at what they really put in there in terms of their definitions, they were determined again looking at what that would do when it was in execution and dragging in. And in effect, they're hoping to drag in a bunch of code, very specific code that they wanted in the structure of those means. So this is all part of their effort to interpret those means plus function elements. Now, they never raised this machine in execution argument until their contensions of fact and law. Long after the claim construction. And they never raised it in kind of context of like the spreadsheet program until we were dang you're a trial. Now, of course, we brought this up. The court was supposed to. And the best record in terms of the court's disposal is to think, what did the judge say very specifically about this inconsistency argument? The judge pointed out he didn't change anything. It was consistent with what he always intended. What we always thought that this was nothing more than discussion of the function and means plus function. So it's clear that these aren't structural limitations. They want to apply some new rule to an apparatus claim. But this court's pointed out that an apparatus is what it is, not what it does. And here in execution is nothing more than the recognition that to understand the function of these software programs that they must be considered when they're in execution. Let me move you on to another question. And that's a disposition of the escrow account. You agree that the district court has not yet decided what the disposition of the escrow account. You know, that's an interesting question because I don't know that I agree with that. But I would step back and say this whether it has or not, it did not abuse its discretion. But that makes a big difference. I understand. If we're reviewing an order that says you're going to be paid $2 a unit, it's a different order than we'll put $2 a unit into an escrow account and decide what to do about it later. Okay. Well, let me step back and say why if it is $2 a unit and that's what we're to get, it's not an abuse discretion. And that's where this needs to be considered

. So this is all part of their effort to interpret those means plus function elements. Now, they never raised this machine in execution argument until their contensions of fact and law. Long after the claim construction. And they never raised it in kind of context of like the spreadsheet program until we were dang you're a trial. Now, of course, we brought this up. The court was supposed to. And the best record in terms of the court's disposal is to think, what did the judge say very specifically about this inconsistency argument? The judge pointed out he didn't change anything. It was consistent with what he always intended. What we always thought that this was nothing more than discussion of the function and means plus function. So it's clear that these aren't structural limitations. They want to apply some new rule to an apparatus claim. But this court's pointed out that an apparatus is what it is, not what it does. And here in execution is nothing more than the recognition that to understand the function of these software programs that they must be considered when they're in execution. Let me move you on to another question. And that's a disposition of the escrow account. You agree that the district court has not yet decided what the disposition of the escrow account. You know, that's an interesting question because I don't know that I agree with that. But I would step back and say this whether it has or not, it did not abuse its discretion. But that makes a big difference. I understand. If we're reviewing an order that says you're going to be paid $2 a unit, it's a different order than we'll put $2 a unit into an escrow account and decide what to do about it later. Okay. Well, let me step back and say why if it is $2 a unit and that's what we're to get, it's not an abuse discretion. And that's where this needs to be considered. Which is it? I think that it's that you're honored. Where does he say that? Well, that language I read from the order says that this position will wait later developments. Well, I think that's more a reference to his also his comment. Maybe this case is going to be settled. Maybe it's going to go away. But I certainly understood that he was giving $2 for a unit, for units that they're going to use. So let me step back. It isn't the normal, the normal disposition of an escrow is that it's, it's subject to later events and then those funds are in effect reserved for disposition as appropriate depending on the circumstances. I believe that is correct. And I think the circumstances that would make that appropriate may be the determination that liability indeed exists here. Well, I would agree with you, but I think that that's a separate question then from whether the district court made a determination that that is going to be the sort of post judgment royalty that will be applied no matter what. Well, we've viewed it as that, but I certainly can understand why you want to do that. I'm not sure that's your case. But I'm just pointing out that in terms of the abusive discretion, and I think it is it should be considered that issue your honor, that nevertheless the court was well within its discretion and why. Well, because we aren't talking about a damage issue here. That ended the day the jury voted king. Damages are for the past and injunctions for the future. And to get to your question about eBay, we moved on the four factor test that the Supreme Court in Murk Exchange said was the appropriate test. The court's order went through those four factors. So in terms of determining an injunction, it went about it right. But the court applied the presumption on the irreparable harm that the Supreme Court has said is no longer an appropriate test. Well, but again, I think they went through the test correctly and moreover, that issue is an on appeal. But what I'm getting to is we got to the stay then and we had four factors there. The court went through them

. Which is it? I think that it's that you're honored. Where does he say that? Well, that language I read from the order says that this position will wait later developments. Well, I think that's more a reference to his also his comment. Maybe this case is going to be settled. Maybe it's going to go away. But I certainly understood that he was giving $2 for a unit, for units that they're going to use. So let me step back. It isn't the normal, the normal disposition of an escrow is that it's, it's subject to later events and then those funds are in effect reserved for disposition as appropriate depending on the circumstances. I believe that is correct. And I think the circumstances that would make that appropriate may be the determination that liability indeed exists here. Well, I would agree with you, but I think that that's a separate question then from whether the district court made a determination that that is going to be the sort of post judgment royalty that will be applied no matter what. Well, we've viewed it as that, but I certainly can understand why you want to do that. I'm not sure that's your case. But I'm just pointing out that in terms of the abusive discretion, and I think it is it should be considered that issue your honor, that nevertheless the court was well within its discretion and why. Well, because we aren't talking about a damage issue here. That ended the day the jury voted king. Damages are for the past and injunctions for the future. And to get to your question about eBay, we moved on the four factor test that the Supreme Court in Murk Exchange said was the appropriate test. The court's order went through those four factors. So in terms of determining an injunction, it went about it right. But the court applied the presumption on the irreparable harm that the Supreme Court has said is no longer an appropriate test. Well, but again, I think they went through the test correctly and moreover, that issue is an on appeal. But what I'm getting to is we got to the stay then and we had four factors there. The court went through them. And first and foremost, it determined that there wasn't a strong showing likely to be success on appeal, which is, I think in jurisprudence, the most important of the factors to look at. But it did find in weighing the other three. But the court would have been well within its discretion to simply deny any state here. So how can a denial, well within your discretion to deny a stay somehow be okay, but something less, ramping the state at Microsoft, but asking to put aside money at a certain amount, be somehow an abusive discretion, particularly where as here, they said they had a designer. They said that throughout the trial, they said they didn't need it. So they always keep asking questions about whether he's determined that you're going to get the money or whether he's just put it into an escrow. I mean, it could be an abusive discretion if he said the post-judgment rate should be $2. I don't think it is because I don't think that it's tied to the damage period. And it should be tied to the damage period because it's not an assessment of a willing license or willing licensee, not so ever. It's now within the discretion of the court for giving terms and conditions for a stay. And we aren't dealing with a hypothetical negotiation, occurring a few years ago. We're now dealing with a whole new animal that occurs as of that time. Mr. Polosko, how do you address Mr. McCalliff's argument with respect to the in-place-of language? Well, your honor first off, there's testimony in the record about this from Dr. Taylor. So I would say... Is your primary contention here that this can be justified under the doctrine of equivalence as opposed to literal infringement? No, it's under literal too because I don't think... And why is it literal? I think it's the same question that Judge Lynn was asking. Right

. And first and foremost, it determined that there wasn't a strong showing likely to be success on appeal, which is, I think in jurisprudence, the most important of the factors to look at. But it did find in weighing the other three. But the court would have been well within its discretion to simply deny any state here. So how can a denial, well within your discretion to deny a stay somehow be okay, but something less, ramping the state at Microsoft, but asking to put aside money at a certain amount, be somehow an abusive discretion, particularly where as here, they said they had a designer. They said that throughout the trial, they said they didn't need it. So they always keep asking questions about whether he's determined that you're going to get the money or whether he's just put it into an escrow. I mean, it could be an abusive discretion if he said the post-judgment rate should be $2. I don't think it is because I don't think that it's tied to the damage period. And it should be tied to the damage period because it's not an assessment of a willing license or willing licensee, not so ever. It's now within the discretion of the court for giving terms and conditions for a stay. And we aren't dealing with a hypothetical negotiation, occurring a few years ago. We're now dealing with a whole new animal that occurs as of that time. Mr. Polosko, how do you address Mr. McCalliff's argument with respect to the in-place-of language? Well, your honor first off, there's testimony in the record about this from Dr. Taylor. So I would say... Is your primary contention here that this can be justified under the doctrine of equivalence as opposed to literal infringement? No, it's under literal too because I don't think... And why is it literal? I think it's the same question that Judge Lynn was asking. Right. I don't think we have to get to that level. They're adding a reading to the claim construction that isn't there. But we have our data structures, your honor. And what we have for the link table, the database, it's going to be something that is a data structure that's... And as you've already pointed out, there's nothing in the claim that says it has to be in memory location here. No, but I think you're addressing a different question than the one that Judge Lynn and I were asking about. If you look at the claim construction that was given to the jury on page 76 of the appendix, it talks about causes of display of the call, broad range, in place of the active record. Right. So I think what we're asking you is, how was that satisfied literally based on the description that the opposing counsel has given us? What happens in the accused device? Your honor, it is done in the active record. It is done very specifically in the manner that Dr. Taylor suggested. And you're going from one data structure, which is on the access side, and you're getting something from the other data structure, the spreadsheet side. And there is a replacement being made in that active record from one data structure. Well, what is call prong range? Is that the spreadsheet information? Yes. And we're substituting something from the database for that. So, but what they're suggesting is that this instruction requires that the spreadsheet data replace the database information in the display. And as I understand the accused device, that doesn't happen in the accused device. Well, actually, it does, and even their expert conceded that. I may address you to appendix page 129805. Okay, what volume? 129805. And that is going to be volume 5, I believe. Volume 5

. I don't think we have to get to that level. They're adding a reading to the claim construction that isn't there. But we have our data structures, your honor. And what we have for the link table, the database, it's going to be something that is a data structure that's... And as you've already pointed out, there's nothing in the claim that says it has to be in memory location here. No, but I think you're addressing a different question than the one that Judge Lynn and I were asking about. If you look at the claim construction that was given to the jury on page 76 of the appendix, it talks about causes of display of the call, broad range, in place of the active record. Right. So I think what we're asking you is, how was that satisfied literally based on the description that the opposing counsel has given us? What happens in the accused device? Your honor, it is done in the active record. It is done very specifically in the manner that Dr. Taylor suggested. And you're going from one data structure, which is on the access side, and you're getting something from the other data structure, the spreadsheet side. And there is a replacement being made in that active record from one data structure. Well, what is call prong range? Is that the spreadsheet information? Yes. And we're substituting something from the database for that. So, but what they're suggesting is that this instruction requires that the spreadsheet data replace the database information in the display. And as I understand the accused device, that doesn't happen in the accused device. Well, actually, it does, and even their expert conceded that. I may address you to appendix page 129805. Okay, what volume? 129805. And that is going to be volume 5, I believe. Volume 5. Okay, and if you go to lines 5 through 23 there, that's where their expert recognized that it was replaced, conceded it. And also a note. Well, I don't see, I mean, the problem here, and we've mentioned this in several things, you get the sort of very confusing bits of testimony by experts, which really don't address directly the claim line, which I'm just skimming this quickly. But where does he say, where is he addressing the claim interpretation that the district court gave on this point, and saying that it satisfies that, and then explaining how it satisfies that? Well, he's pointing out that it's going to the access link table. Now, the result of that recalculation, they're part of the same record, the results are going to appear in the access link tables, that correct. Eventually, yes. So the results from the recalculation and Excel have been loaded into the access link table, that's correct. Yes. I'm not supposed to understand that. Well, you're honored. Let me then give you the, I gave you the more basic question, if you refer to the same volume, 12, 7, 9, 6. 22 through 12, 7, 9, 7, 3. I asked the basic question. Now, assuming that the function of displaying the callprog range in place of the active record was required by the claims, would this change your conclusion to the access and Excel would infringe literally under the document and equivalent to? No, that wouldn't change by analysis, but that was required. It would infringe both literally and under the document and equivalent. So I directly dealt with that with Dr. Taylor. So there's certainly evidence in record to support what the jury determined here consistent with the construction and the jury instruction that you referenced here. And the last thing, do I get a few more minutes? I'm not sure. Well, I'm going to give you your additional five minutes, so you have about three and a half more minutes. Thank you, Mr. Kusk. That should make it equal with what Mr. McCall has

. Okay, and if you go to lines 5 through 23 there, that's where their expert recognized that it was replaced, conceded it. And also a note. Well, I don't see, I mean, the problem here, and we've mentioned this in several things, you get the sort of very confusing bits of testimony by experts, which really don't address directly the claim line, which I'm just skimming this quickly. But where does he say, where is he addressing the claim interpretation that the district court gave on this point, and saying that it satisfies that, and then explaining how it satisfies that? Well, he's pointing out that it's going to the access link table. Now, the result of that recalculation, they're part of the same record, the results are going to appear in the access link tables, that correct. Eventually, yes. So the results from the recalculation and Excel have been loaded into the access link table, that's correct. Yes. I'm not supposed to understand that. Well, you're honored. Let me then give you the, I gave you the more basic question, if you refer to the same volume, 12, 7, 9, 6. 22 through 12, 7, 9, 7, 3. I asked the basic question. Now, assuming that the function of displaying the callprog range in place of the active record was required by the claims, would this change your conclusion to the access and Excel would infringe literally under the document and equivalent to? No, that wouldn't change by analysis, but that was required. It would infringe both literally and under the document and equivalent. So I directly dealt with that with Dr. Taylor. So there's certainly evidence in record to support what the jury determined here consistent with the construction and the jury instruction that you referenced here. And the last thing, do I get a few more minutes? I'm not sure. Well, I'm going to give you your additional five minutes, so you have about three and a half more minutes. Thank you, Mr. Kusk. That should make it equal with what Mr. McCall has. That way you'll both end up with 20 minutes. Okay. Lump sum here. This idea that they could argue a lump sum as a damage issues inappropriate. What case says they can't argue lump sum? Well, your honor, there's no case that says that you can. There's no case that deals with the issue head on in this context. It is an issue of first impression. And therefore, it's reviewed, I think, as an issue of law. And why we say that's inappropriate is for a couple of reasons. First off, of course, the election of remedies is something for the plaintiff to choose. You can choose to go only for an injunction. You can choose past damages, future injunction. A lump sum by its very nature starts to crowd out the injunction because lump sums typically run for the life of the patent. So there you have a defendant already crowding into the injunction period. And that's inappropriate. That's not election of remedy a defendant gets to make. Here, they try to contort that and said, oh, okay, you can go ahead. And we're just going to do a lump sum for the period of damages in front of the jury. So somehow we're to believe that we have a hypothetical for a certain time period, which you can't possibly know at the time of the hypothetical. It's not like for the life of the patent. Now it's for some arbitrary amount of time till the damages are decided by the jury. It didn't even go into the accounting period. And that lump sum was divorced in any way from looking at the use made of the invention by the infringer. Now, at a minimum, at a minimum, it should have required that it be based on projected sales

. That way you'll both end up with 20 minutes. Okay. Lump sum here. This idea that they could argue a lump sum as a damage issues inappropriate. What case says they can't argue lump sum? Well, your honor, there's no case that says that you can. There's no case that deals with the issue head on in this context. It is an issue of first impression. And therefore, it's reviewed, I think, as an issue of law. And why we say that's inappropriate is for a couple of reasons. First off, of course, the election of remedies is something for the plaintiff to choose. You can choose to go only for an injunction. You can choose past damages, future injunction. A lump sum by its very nature starts to crowd out the injunction because lump sums typically run for the life of the patent. So there you have a defendant already crowding into the injunction period. And that's inappropriate. That's not election of remedy a defendant gets to make. Here, they try to contort that and said, oh, okay, you can go ahead. And we're just going to do a lump sum for the period of damages in front of the jury. So somehow we're to believe that we have a hypothetical for a certain time period, which you can't possibly know at the time of the hypothetical. It's not like for the life of the patent. Now it's for some arbitrary amount of time till the damages are decided by the jury. It didn't even go into the accounting period. And that lump sum was divorced in any way from looking at the use made of the invention by the infringer. Now, at a minimum, at a minimum, it should have required that it be based on projected sales. But it was. And in this court's recent case of applied medical, of course, the court looked at the issue of, you've got to look at this in the context of the infringement being redressed. Here, it was just a number thrown out. Oh, that's what they would have done for some arbitrary period of time. Is it not true that in the real world people sometimes bargain for lump sum royalties? In the real world, it's true that they bargain for them. In the real world, it's usually true that they also look at the expected sales over a time period in order to get there. In the real world, you don't have section 284, which says that you can't have no less than a reasonable royalty for the use made of, for the infringement of the, or the use made of the invention by the infringer. Do the jury instructions, did the jury instructions obligate the jury to find a lump sum amount? They were not obligated. This was permitted to be argued, and then you combine that with this equity valuation that had nothing to do with the patent, that was long passed the hypothetical date, that a compounding prejudicial effect on benchmarking a lump sum here. And that influences accounting for the same reason. We've got a number. How can a court without any instructions or any special neurogatories go out and say, oh, it must have been this number when I've got one lawyer arguing it's a lump sum. Another lawyer arguing it's running royalty. And now, magically, the trial judge can divine it. Well, they discern a reasonable royalty of this amount, because I'm figuring it out on this basis. Can't do that. At a minimum, that accounting has to go back. Thank you, Mr. Basel. Mr. McCallough? Thank you. If I may, I would like to start again on the first means. The jury found that the first means was met only by equivalents, 112, 6 equivalents and doctrines of equivalents, both, but only by equivalents. I thought they found both literal and doctrines of equivalents

. But it was. And in this court's recent case of applied medical, of course, the court looked at the issue of, you've got to look at this in the context of the infringement being redressed. Here, it was just a number thrown out. Oh, that's what they would have done for some arbitrary period of time. Is it not true that in the real world people sometimes bargain for lump sum royalties? In the real world, it's true that they bargain for them. In the real world, it's usually true that they also look at the expected sales over a time period in order to get there. In the real world, you don't have section 284, which says that you can't have no less than a reasonable royalty for the use made of, for the infringement of the, or the use made of the invention by the infringer. Do the jury instructions, did the jury instructions obligate the jury to find a lump sum amount? They were not obligated. This was permitted to be argued, and then you combine that with this equity valuation that had nothing to do with the patent, that was long passed the hypothetical date, that a compounding prejudicial effect on benchmarking a lump sum here. And that influences accounting for the same reason. We've got a number. How can a court without any instructions or any special neurogatories go out and say, oh, it must have been this number when I've got one lawyer arguing it's a lump sum. Another lawyer arguing it's running royalty. And now, magically, the trial judge can divine it. Well, they discern a reasonable royalty of this amount, because I'm figuring it out on this basis. Can't do that. At a minimum, that accounting has to go back. Thank you, Mr. Basel. Mr. McCallough? Thank you. If I may, I would like to start again on the first means. The jury found that the first means was met only by equivalents, 112, 6 equivalents and doctrines of equivalents, both, but only by equivalents. I thought they found both literal and doctrines of equivalents. Literal in that the structure was there on the basis of the judgment. Now, Mr. Blusco just spoke. He indicated that there was evidence to find two data structures. That is incorrect. In fact, his expert agreed that all the data came from a single data structure, the spreadsheet file, and his expert insisted on calling it the shared data structure. In the accused device, all the data in the linked table comes from a spreadsheet data structure. That is why there cannot be this display of spreadsheet information in place of database information. The part of the transcript he just cited you to was simply a description of how the spreadsheet information gets updated. That is, new spreadsheet information displayed in place of old spreadsheet information. This coordinated display, this in place of display in the patent specification, was what the inventor said over and over again, distinguished his invention from every prior art reference. In fact, he didn't only say it. He went through every reference he knew about from the prior art and explained how it distinguished his invention. In a footnote in our opening brief, we cited a much instance of it with a blurb, with a quote. I wanted to put that footnote in our reply brief, but the court's word limitations on their briefing wouldn't let me. That is how much verbage he used it. So, there is clearly a specification disclaimer here. The district judge was wrong, committed an abusive discretion, not instructing the jury on it. The abusive discretion was based on an error of law. It is very clear that he bought the argument that specification disclaimer doesn't have anything to do with equivalence. That is an absurd argument. It is wrong as a matter of law. He should have instructed the jury on specification disclaimer. If he had given the evidence that eventually went in, there is no doubt that this verdict would have been non-friendsmaned down the line

. Literal in that the structure was there on the basis of the judgment. Now, Mr. Blusco just spoke. He indicated that there was evidence to find two data structures. That is incorrect. In fact, his expert agreed that all the data came from a single data structure, the spreadsheet file, and his expert insisted on calling it the shared data structure. In the accused device, all the data in the linked table comes from a spreadsheet data structure. That is why there cannot be this display of spreadsheet information in place of database information. The part of the transcript he just cited you to was simply a description of how the spreadsheet information gets updated. That is, new spreadsheet information displayed in place of old spreadsheet information. This coordinated display, this in place of display in the patent specification, was what the inventor said over and over again, distinguished his invention from every prior art reference. In fact, he didn't only say it. He went through every reference he knew about from the prior art and explained how it distinguished his invention. In a footnote in our opening brief, we cited a much instance of it with a blurb, with a quote. I wanted to put that footnote in our reply brief, but the court's word limitations on their briefing wouldn't let me. That is how much verbage he used it. So, there is clearly a specification disclaimer here. The district judge was wrong, committed an abusive discretion, not instructing the jury on it. The abusive discretion was based on an error of law. It is very clear that he bought the argument that specification disclaimer doesn't have anything to do with equivalence. That is an absurd argument. It is wrong as a matter of law. He should have instructed the jury on specification disclaimer. If he had given the evidence that eventually went in, there is no doubt that this verdict would have been non-friendsmaned down the line. Now, if I can move to the second means, because I think it is an important issue, the second means claim element claims a two command approach. Entry of a select command to select a database record. Entry of a recalculation command to shoot the database record over to the spreadsheet and cause a recalculation. The only embodiment described in the patent specification requires only a one command approach whereby any record pointed to by the cursor at the time the recalculation command is shot over into the spreadsheet for the recalculation. There is therefore no structure whatsoever described in the patent specification for performing the function as claimed. Under default proof credit cards in Raidonelsen and Raidossel, the Atmell case, a number of others, that requires a finding of invalidity for indefinite under Section 112 paragraph 2. If I may just jump back to the database file element, you are on it. I would like to point out that what they have accused is a picture on the computer screen to meet that. To meet a claim language that says database file stored in memory and containing records and fields. It is clearly a substantially different. It is clearly different first of all. But it is also substantially different. Moreover, the finding of equivalence on that point, the distinction between the claims between the data structures and the database file and the claims between those two as we described in our brief. Thank you Mr. McCall. Thank you very much. The case is submitted.

In which we'll hear our argument this morning is number 05-1531 Amado versus Microsoft Corporation. Oh See Mr. McCollough Am I Pronouncing it correctly? Perfectly. Okay, thank you. Sometimes that doesn't happen. Most of the time it is. Let's see you've reserved four minutes for a bottle correct? That's right. Okay before you begin I'll just note there are a number of issues here I would just you obviously handled the argument whichever way you want but Focus on the ones that From your client standpoint you think of the most important And I will just start whenever you're ready. Thank you very much, Ryan. Good morning. We are here today because the district court Aroniously interpreted the in execution claim language Based on that interpretation Enjoying the sale of Microsoft office because of functionality in office that no one has ever used. It then compounded that year by entering an escrow order Two dollars a unit even though the jury and the district court itself Had found that that was not the proper valuation of the invention. Well, I'm confused about the two dollar a unit point as I understand it is just an escrow account He hasn't said that What the disposition of that escrow account it's going to be that is I understand the order that specifically reserved to the future. Now as far as any prejudice about having to deposit the money in the escrow account, you know that's pretty much over and done with. But what are you complaining about the ultimate disposition that has credit down and if so how can we address that when we don't know what the district court is going to do about that? Well, first of all, it's not over and done with the jury. The jury verity was for $6 million. The escrow account presently stands at about $66 million And every month about eight or nine million extra dollars is required to be put into that account. So it is quite a burden quite a large amount of money to put in there. But the escrow account is firm that stops right? I mean then the injunction comes into play and then there's no more there's no more escrow account right? That's true, but the escrow account itself and the way the court did it suggested that the court was going to award two dollars a unit to a motto for the post-verted units that were sold during the stay. Well, we don't know that for a fact. It's simply an ass call. I mean once this appeal is decided then the district judge will make some determination as to the disposition of those funds. There's no doubt about that, Your Honor. But that doesn't mean that any amount in escrow would be within the district court's discretion. As Chief Justice Roberts wrote in the recently decided eBay case discretion is not win. It's not anything. And indeed as a Supreme Court has noted the court in these kinds of situations has to bring equity to bear. Yeah, but if you look at page 57, I mean the order says the ultimate failure the money paid into this account will depend on subsequent developments in this case, etc. etc. So we don't have a decision about what's going to happen to the month, right? No, no, and that's absolutely correct, Your Honor. But you do have a decision of the court ordering Microsoft to put two dollars a unit in during the course of the stay. And that can be reviewed for abuse of discretion. And there was clearly an abuse of discretion here. He said the district court just he was not bound by the jury verdict in determining the escrow. He ignored it. That's got to be an abuse of discretion, particularly after the eBay case. He can't just ignore an enormous fact on the landscape such as that. And he had more over he applied an automatic rule. He said whatever Mr. Amato wants Mr. Amato gets again in view of what the Supreme Court did in terms of the escrow, not necessarily in terms of any subsequent reward. Again, that's true. But that can't mean that that any number is within his discretion. The patentee in such a situation could ask for anything and effectively take the power of a stay away away from the court. You mentioned the eBay case now. Microsoft did not challenge the grant of the instruction, correct? Well, at that time the eBay case decided you're on it. What is your view on the impact of the eBay decision on this case? Well, I think let me answer it this way. If eBay had been decided before that decision, Microsoft would have definitely argued that no injunction should issue for products that were already out there. Now, products that were going to be released in the near future, that's a different situation though. I'll note that Microsoft has removed the accused functionality from its most recently released product. But we would have definitely argued under eBay, no injunction should issue for products that are already out there because as a district court found in his stay decision, that such an injunction will create an enormous amount of harm. Not only to Microsoft. But you're not arguing that now. Well, eBay was decided after this appeal was started. I understand. But you're not challenging the injunction on that grant now. I'm not challenging that right now, Your Honor. But I may challenge it if it goes back because eBay has new law and really is a law on its head. And what effect do you think eBay decision has on this $2 per unit escrow? Well, I think the eBay decision says that a district court cannot, for that matter, a court appeals. In this kind of context cannot apply any kind of automatic rule. Equity has to be brought to bear an analysis of the facts and the balancing of the equities. That did not occur here. The court said, I'm ignoring the jury verdict and I'm giving a motto whatever he wants. That's an automatic rule. But that goes to the injunction. I mean, it seems to me once the injunction is issued, the question of what an appropriate escrow amount is not really affected by the eBay. Well, the eBay case was not about escrow. That's true. But the eBay case was very clear that automatic rules in the equitable context are not the way to go. The court has to balance the equities. And I might point out as a district court found there's no reason for an escrow here at all. This was a $6 million judgment. Microsoft is not going anywhere. It can satisfy that judgment. I guess you could have said, well, forget about it. Stay. We'll just take the injunction. So we don't have to make the escrow deposit, right? He could have. But you could have. You could have said, forget about it. We don't want to stay under those circumstances. We'll just take the injunction. We're only at the enormous harm to Microsoft's business and the business of Microsoft's customers that the district court found. There would be enormous harm for us to for Microsoft to ignore that. That's why it's going. It's actually taking this the accused functionality out of its products. I'd like to treat the in execution language if I may. No, I was going to ask you to do that. Mr. Calloff, because you got some questions on the on the escrow amount. So yeah, look, why don't you get back to your claim construction? Yeah, I hope. Go ahead and do that now, but I want to have a couple of questions on the other claim construction aspects. So don't use up all your time on the in execution. Of course, of course. The special master originally interpreted the in execution claim language to require directing a computer to perform the claim functions. Nobody ever objected to that. The district court adopted it and no one's ever appealed it. And there was support in the record as identified by the special master. That's an appropriate claim interpretation. And that's the proper one out of the blue. The district judge indicated that he was thinking about changing that and eventually instructed the jury. That well, you don't have to find that anybody ever directed a computer to perform the claim functions in order to find infringement. He never cited any any evidence from the intrinsic record. Didn't have any evidence before extrinsic evidence and never cited any. It's clearly unsupported. That's an error of law. Well, of course, the software really performs no function when it's just sitting in a computer. So isn't this statement in the claim simply and we say perhaps slightly awkward way of expressing the functionality of the software not necessarily expressing a condition of operation? Not at all. First of all, that interpretation of the claim simply reads the language out. And that would make it as the same as first means for performing the function would be the same as first means in execution for performing the function. And I think the precedent of this court requires a presumption that every word has meaning. And there is meaning here. I would note that the portion of the specification that supports this is cited by the special master specifically says that the power of the invention, the point of the invention is in its operation. At the bottom of column 23 of the specification. And that's what they claimed. Now, there may have been other reasons at that time. Of course, I think you can make that statement about almost any invention. That's true. But the patent he gets to claim his invention the way he wants to. Mr. Amato could have claimed this as first means for performing function exit spreadsheet program for doing that. But he didn't. He put those words in there. The public sees those in the public record. He should be stuck with that. He should be the one who takes the risk of putting extra words. But the question is what does it mean? That's right. And the special master interpreted that through the Markman process. And the court adopted it and no one ever objected or appealed to this very day. So that is what it means. It should be what it means for purposes of this case directing a computer to perform the claims functions. And there was no evidence that anybody ever did that. So that that alteration. Well, how was the jury instructed on this point? The jury was told that it did not need to find that the claimed functions were actually performed in order to find infringement. So which is directly inconsistent with the claim. The claim construction. After the claim chart was given to the jury, the jury that said you must find that the functions were performed. The jury heard the evidence. Then the court said you don't have to find that anymore. That was clearly an indication to the jury that the judge had made up his mind about that fact. That's the only way it could have been interpreted. The point of May 6th of 2005, the judge told you that was his interpretation. The judge says it was a tentative interpretation. And in fact, I would like to address that one. There's no doubt that a motto thought that was tentative. I would direct your attention to the briefs, the bench briefs filed on this point. A motto filed his bench brief on this point first. If it was a final decision that he won, why was he filing a brief? But the point is you had some notice that this was common. That's right. And then a couple days later, the judge gave us the proper interpretations. The original interpretations. We had no reason to object to that claim chart. Those were our interpretations that said directing the computer to perform the claims function. We only had reason to object to the instruction that came later. And we did. We told the judge when he announced his tentative decision. We told him in the bench brief and we told him in the argument before he issued that final instruction. Let me move you on to a couple of these other claim construction issues. One of the ones, as I understand it, you look at this database file, stored and said memory. One quotation here and you say that requires that it'd be stored in the memory in a particular hierarchy. That is the record field's data hierarchy. And did you ever ask for that particular claim construction? We didn't need it. It's the plain language of the claim. Okay. So under Hewlett-Packard, unless we find that the plain language of the claim requires that you lose, right? I think you have to find the plain language requires that. But it does. It says a database file stored in memory and containing records and fields in the field's containing data. It doesn't on the face of it, say how it's stored in the memory. It says database file stored in memory and containing records and fields. I understand your contention. Let me move on to the third one. In writing these briefs, it really helps to give some context. I think both sides could have done more of that here. There's the in place of limitation. If I understand that correctly, what we have is the situation in the patented device and the patented software. What you have is a situation in which the data entry is changed and is replaced by basically a spreadsheet entry. Am I understanding that correctly? Close. The first means corresponding structure requires programming that causes the display of spreadsheet information in place of database information. That's the course of on his device there. It all comes in the spreadsheet together. No, in the spreadsheet, in the accused device, it all comes from the spreadsheet. It's only spreadsheet information. That's it. There's one source of data in the accused device, the spreadsheet file, in the disclosed system. There's two sources. There's a database file in memory and there's a spreadsheet file, spreadsheet storage. So the point is that in the accused device, the display information comes from the spreadsheet memory rather than from the database memory. The point is that because in the accused device, it comes from one source. It cannot be said to display data from one source in place of data from a second source. I want to be sure that I understand this correctly. You're saying that in the patented device, the spreadsheet data replaces the database information, the record information. In the display. That's right. But in the Microsoft device, that you can have both of them at the same time. No. In the Microsoft device, it's only spreadsheet information. It's always spreadsheet information. Always. Okay. I understand. That's it. And, and, and your honor, I'm into my rebuttal time. Well, will, you've used up your all almost all of your rebuttal, Mr. Call, but you've had a number of questions from the panel. So we will, we'll restore your full four minutes of rebuttal. Thank you very much. And we'll hear from a motto now. Mr. Baluska. So, Baluska. See, I got that one wrong. And if you, you know, if necessary, we'll give you the same amount of time that Mr. McCullough will have. Okay. Thank you. Thank you. Thank you. Let's start with the in execution. In execution here is a term used in connection with an apparatus claim. This is clearly an apparatus claim. It says an apparatus for and the spec backs that up. Both in terms of the background of the invention talks about being software software. Well, how does one define software? The only way to find it is in terms of identifying the functions that are performed when it is in execution. That's the only way to do it. Isn't, isn't Mr. McCullough right when he says that the district courts construction reads out of the claim the words in execution? No. Because the claim reads the same. The functional statement is still there associated with the program. What's? Yes, you're on. Let me explain that. When we're talking about these functions of software, they are necessarily being described when they're in execution. What do the court really do in terms of construction? You're saying that what it means is this is the way it would function when it's executed. That's correct. And if you think about it, every software claim is like that. Every claim that software that's defining those functions, you implicitly read in execution. It does these things. What it does is that lead to the conclusion that the words in execution in the claim have to add something, have to mean something more than what is implicit in any recitation of a functional statement. No, because this is actually, as you pointed out, it may be somewhat cumbersome in the length, but it's really describing more accurately exactly how these are always being looked at. These functions are meaningless except when it's in execution. And because this is an apparatus claim, we are looking for the structure. And the structure here is defined in terms of, of course, these functional recitations. But that structure exists, as you pointed out, whether it's running or not, it's there. These programs, that software is there. So you're arguing that basically the intrinsic record makes it perfectly clear that when the claim talks about in execution, it's simply reciting the functional attributes of the software consistent with the entire written description. And there's nothing particularly special, unique, inventive about what happens when it's operating compared with what happens when it's sitting in the computer ready to pop up. That's correct, your honor. And if you think about it, like I say, the structure is the same. Whether it's in operation or not, it's there. It doesn't have to be modified. There's no code that needs to be modified, fulfilling fantasy sports requirement, and whether it's active or not, it's all there. And I want to step back, though, to respond to that somehow there was some prejudice here. Because I don't think there was. There was. The only person that thought that there could ever have been any difference in this construction is Microsoft. When you step back and look at what they wanted to interpret, they asked for about 100 terms to be interpreted in this pattern. And we had a special master for that purpose. They never asked for in execution standing alone. As a matter of fact, they asked for in execution only two times that had appeared. And both of those were in the means elements. For example, there's the spreadsheet program. There's in execution there. No request for interpretation there whatsoever. What they were doing is looking at the means, wanting to interpret that functional language. And if you will look at what they really put in there in terms of their definitions, they were determined again looking at what that would do when it was in execution and dragging in. And in effect, they're hoping to drag in a bunch of code, very specific code that they wanted in the structure of those means. So this is all part of their effort to interpret those means plus function elements. Now, they never raised this machine in execution argument until their contensions of fact and law. Long after the claim construction. And they never raised it in kind of context of like the spreadsheet program until we were dang you're a trial. Now, of course, we brought this up. The court was supposed to. And the best record in terms of the court's disposal is to think, what did the judge say very specifically about this inconsistency argument? The judge pointed out he didn't change anything. It was consistent with what he always intended. What we always thought that this was nothing more than discussion of the function and means plus function. So it's clear that these aren't structural limitations. They want to apply some new rule to an apparatus claim. But this court's pointed out that an apparatus is what it is, not what it does. And here in execution is nothing more than the recognition that to understand the function of these software programs that they must be considered when they're in execution. Let me move you on to another question. And that's a disposition of the escrow account. You agree that the district court has not yet decided what the disposition of the escrow account. You know, that's an interesting question because I don't know that I agree with that. But I would step back and say this whether it has or not, it did not abuse its discretion. But that makes a big difference. I understand. If we're reviewing an order that says you're going to be paid $2 a unit, it's a different order than we'll put $2 a unit into an escrow account and decide what to do about it later. Okay. Well, let me step back and say why if it is $2 a unit and that's what we're to get, it's not an abuse discretion. And that's where this needs to be considered. Which is it? I think that it's that you're honored. Where does he say that? Well, that language I read from the order says that this position will wait later developments. Well, I think that's more a reference to his also his comment. Maybe this case is going to be settled. Maybe it's going to go away. But I certainly understood that he was giving $2 for a unit, for units that they're going to use. So let me step back. It isn't the normal, the normal disposition of an escrow is that it's, it's subject to later events and then those funds are in effect reserved for disposition as appropriate depending on the circumstances. I believe that is correct. And I think the circumstances that would make that appropriate may be the determination that liability indeed exists here. Well, I would agree with you, but I think that that's a separate question then from whether the district court made a determination that that is going to be the sort of post judgment royalty that will be applied no matter what. Well, we've viewed it as that, but I certainly can understand why you want to do that. I'm not sure that's your case. But I'm just pointing out that in terms of the abusive discretion, and I think it is it should be considered that issue your honor, that nevertheless the court was well within its discretion and why. Well, because we aren't talking about a damage issue here. That ended the day the jury voted king. Damages are for the past and injunctions for the future. And to get to your question about eBay, we moved on the four factor test that the Supreme Court in Murk Exchange said was the appropriate test. The court's order went through those four factors. So in terms of determining an injunction, it went about it right. But the court applied the presumption on the irreparable harm that the Supreme Court has said is no longer an appropriate test. Well, but again, I think they went through the test correctly and moreover, that issue is an on appeal. But what I'm getting to is we got to the stay then and we had four factors there. The court went through them. And first and foremost, it determined that there wasn't a strong showing likely to be success on appeal, which is, I think in jurisprudence, the most important of the factors to look at. But it did find in weighing the other three. But the court would have been well within its discretion to simply deny any state here. So how can a denial, well within your discretion to deny a stay somehow be okay, but something less, ramping the state at Microsoft, but asking to put aside money at a certain amount, be somehow an abusive discretion, particularly where as here, they said they had a designer. They said that throughout the trial, they said they didn't need it. So they always keep asking questions about whether he's determined that you're going to get the money or whether he's just put it into an escrow. I mean, it could be an abusive discretion if he said the post-judgment rate should be $2. I don't think it is because I don't think that it's tied to the damage period. And it should be tied to the damage period because it's not an assessment of a willing license or willing licensee, not so ever. It's now within the discretion of the court for giving terms and conditions for a stay. And we aren't dealing with a hypothetical negotiation, occurring a few years ago. We're now dealing with a whole new animal that occurs as of that time. Mr. Polosko, how do you address Mr. McCalliff's argument with respect to the in-place-of language? Well, your honor first off, there's testimony in the record about this from Dr. Taylor. So I would say... Is your primary contention here that this can be justified under the doctrine of equivalence as opposed to literal infringement? No, it's under literal too because I don't think... And why is it literal? I think it's the same question that Judge Lynn was asking. Right. I don't think we have to get to that level. They're adding a reading to the claim construction that isn't there. But we have our data structures, your honor. And what we have for the link table, the database, it's going to be something that is a data structure that's... And as you've already pointed out, there's nothing in the claim that says it has to be in memory location here. No, but I think you're addressing a different question than the one that Judge Lynn and I were asking about. If you look at the claim construction that was given to the jury on page 76 of the appendix, it talks about causes of display of the call, broad range, in place of the active record. Right. So I think what we're asking you is, how was that satisfied literally based on the description that the opposing counsel has given us? What happens in the accused device? Your honor, it is done in the active record. It is done very specifically in the manner that Dr. Taylor suggested. And you're going from one data structure, which is on the access side, and you're getting something from the other data structure, the spreadsheet side. And there is a replacement being made in that active record from one data structure. Well, what is call prong range? Is that the spreadsheet information? Yes. And we're substituting something from the database for that. So, but what they're suggesting is that this instruction requires that the spreadsheet data replace the database information in the display. And as I understand the accused device, that doesn't happen in the accused device. Well, actually, it does, and even their expert conceded that. I may address you to appendix page 129805. Okay, what volume? 129805. And that is going to be volume 5, I believe. Volume 5. Okay, and if you go to lines 5 through 23 there, that's where their expert recognized that it was replaced, conceded it. And also a note. Well, I don't see, I mean, the problem here, and we've mentioned this in several things, you get the sort of very confusing bits of testimony by experts, which really don't address directly the claim line, which I'm just skimming this quickly. But where does he say, where is he addressing the claim interpretation that the district court gave on this point, and saying that it satisfies that, and then explaining how it satisfies that? Well, he's pointing out that it's going to the access link table. Now, the result of that recalculation, they're part of the same record, the results are going to appear in the access link tables, that correct. Eventually, yes. So the results from the recalculation and Excel have been loaded into the access link table, that's correct. Yes. I'm not supposed to understand that. Well, you're honored. Let me then give you the, I gave you the more basic question, if you refer to the same volume, 12, 7, 9, 6. 22 through 12, 7, 9, 7, 3. I asked the basic question. Now, assuming that the function of displaying the callprog range in place of the active record was required by the claims, would this change your conclusion to the access and Excel would infringe literally under the document and equivalent to? No, that wouldn't change by analysis, but that was required. It would infringe both literally and under the document and equivalent. So I directly dealt with that with Dr. Taylor. So there's certainly evidence in record to support what the jury determined here consistent with the construction and the jury instruction that you referenced here. And the last thing, do I get a few more minutes? I'm not sure. Well, I'm going to give you your additional five minutes, so you have about three and a half more minutes. Thank you, Mr. Kusk. That should make it equal with what Mr. McCall has. That way you'll both end up with 20 minutes. Okay. Lump sum here. This idea that they could argue a lump sum as a damage issues inappropriate. What case says they can't argue lump sum? Well, your honor, there's no case that says that you can. There's no case that deals with the issue head on in this context. It is an issue of first impression. And therefore, it's reviewed, I think, as an issue of law. And why we say that's inappropriate is for a couple of reasons. First off, of course, the election of remedies is something for the plaintiff to choose. You can choose to go only for an injunction. You can choose past damages, future injunction. A lump sum by its very nature starts to crowd out the injunction because lump sums typically run for the life of the patent. So there you have a defendant already crowding into the injunction period. And that's inappropriate. That's not election of remedy a defendant gets to make. Here, they try to contort that and said, oh, okay, you can go ahead. And we're just going to do a lump sum for the period of damages in front of the jury. So somehow we're to believe that we have a hypothetical for a certain time period, which you can't possibly know at the time of the hypothetical. It's not like for the life of the patent. Now it's for some arbitrary amount of time till the damages are decided by the jury. It didn't even go into the accounting period. And that lump sum was divorced in any way from looking at the use made of the invention by the infringer. Now, at a minimum, at a minimum, it should have required that it be based on projected sales. But it was. And in this court's recent case of applied medical, of course, the court looked at the issue of, you've got to look at this in the context of the infringement being redressed. Here, it was just a number thrown out. Oh, that's what they would have done for some arbitrary period of time. Is it not true that in the real world people sometimes bargain for lump sum royalties? In the real world, it's true that they bargain for them. In the real world, it's usually true that they also look at the expected sales over a time period in order to get there. In the real world, you don't have section 284, which says that you can't have no less than a reasonable royalty for the use made of, for the infringement of the, or the use made of the invention by the infringer. Do the jury instructions, did the jury instructions obligate the jury to find a lump sum amount? They were not obligated. This was permitted to be argued, and then you combine that with this equity valuation that had nothing to do with the patent, that was long passed the hypothetical date, that a compounding prejudicial effect on benchmarking a lump sum here. And that influences accounting for the same reason. We've got a number. How can a court without any instructions or any special neurogatories go out and say, oh, it must have been this number when I've got one lawyer arguing it's a lump sum. Another lawyer arguing it's running royalty. And now, magically, the trial judge can divine it. Well, they discern a reasonable royalty of this amount, because I'm figuring it out on this basis. Can't do that. At a minimum, that accounting has to go back. Thank you, Mr. Basel. Mr. McCallough? Thank you. If I may, I would like to start again on the first means. The jury found that the first means was met only by equivalents, 112, 6 equivalents and doctrines of equivalents, both, but only by equivalents. I thought they found both literal and doctrines of equivalents. Literal in that the structure was there on the basis of the judgment. Now, Mr. Blusco just spoke. He indicated that there was evidence to find two data structures. That is incorrect. In fact, his expert agreed that all the data came from a single data structure, the spreadsheet file, and his expert insisted on calling it the shared data structure. In the accused device, all the data in the linked table comes from a spreadsheet data structure. That is why there cannot be this display of spreadsheet information in place of database information. The part of the transcript he just cited you to was simply a description of how the spreadsheet information gets updated. That is, new spreadsheet information displayed in place of old spreadsheet information. This coordinated display, this in place of display in the patent specification, was what the inventor said over and over again, distinguished his invention from every prior art reference. In fact, he didn't only say it. He went through every reference he knew about from the prior art and explained how it distinguished his invention. In a footnote in our opening brief, we cited a much instance of it with a blurb, with a quote. I wanted to put that footnote in our reply brief, but the court's word limitations on their briefing wouldn't let me. That is how much verbage he used it. So, there is clearly a specification disclaimer here. The district judge was wrong, committed an abusive discretion, not instructing the jury on it. The abusive discretion was based on an error of law. It is very clear that he bought the argument that specification disclaimer doesn't have anything to do with equivalence. That is an absurd argument. It is wrong as a matter of law. He should have instructed the jury on specification disclaimer. If he had given the evidence that eventually went in, there is no doubt that this verdict would have been non-friendsmaned down the line. Now, if I can move to the second means, because I think it is an important issue, the second means claim element claims a two command approach. Entry of a select command to select a database record. Entry of a recalculation command to shoot the database record over to the spreadsheet and cause a recalculation. The only embodiment described in the patent specification requires only a one command approach whereby any record pointed to by the cursor at the time the recalculation command is shot over into the spreadsheet for the recalculation. There is therefore no structure whatsoever described in the patent specification for performing the function as claimed. Under default proof credit cards in Raidonelsen and Raidossel, the Atmell case, a number of others, that requires a finding of invalidity for indefinite under Section 112 paragraph 2. If I may just jump back to the database file element, you are on it. I would like to point out that what they have accused is a picture on the computer screen to meet that. To meet a claim language that says database file stored in memory and containing records and fields. It is clearly a substantially different. It is clearly different first of all. But it is also substantially different. Moreover, the finding of equivalence on that point, the distinction between the claims between the data structures and the database file and the claims between those two as we described in our brief. Thank you Mr. McCall. Thank you very much. The case is submitted