Legal Case Summary

. But for under run events, are ordinary and expected occurrence in an optical disk drive, particularly when a drive is attached to a post computer on which multiple applications are running simultaneously? But it doesn't necessarily. There could be circumstances in which it doesn't happen, but it is ordinary and expected that it should happen, and certainly a jury could conclude that, that it does happen routinely. And also, some of the patents only drive to activities for a recording and rewriting of the meeting. That's correct. Two of the patents are applied both to recordable and rewriting the meeting and two of the patents which is to save the event. Yes, or the rewriting of this time. Or for those consumers that ultimately use the reportable meeting, then that doesn't want. But that method would not be performed. It would be true, but if there were users who chose to use only reportable media and not rewriting the meeting, they would not have occasion to use those two patents. I don't believe that one's what's to speculate. drawings are made. Well, we're going to be reluctant to speculate as to whether that actually is accomplished or not. Well, I don't believe that one's what's to speculate. I think that the evidence in the record is the best evidence of painable of how the drawings function, how they're expected to function. I don't think, for example, one contrasts this with the recent echo decision from this court in which the court said, well, you've gone out and taken surveys or gotten better direct evidence of infringement, the court's stress that it would have been relatively easy to find out whether there was infringement there. I think that the court also emphasized that in that case, unlike here, there was no evidence of intent to cause infringement. All of the circumstantial evidence was pointed against infringement, and under those circumstances the court felt that it would be too speculative to suppose that someone out there somewhere might be infringing here or in a situation where there is evidence of intent to cause infringement. They know about the features advertising is better than others. They designed the drawing of the part of the digital problem

. They didn't advertise until the ultimate consequence, right? But that really doesn't add to that. Well, it does. I think if you look at what now 13, if you refer to in rocks, if it talks about encourage, encourage. There's no, I'm not sure that there's any authority. The idea of the mere sale of the product is a use of that, something that was introduced into the infringement process, without some separate encourage to the purchaser to use that product to the credit. That's contributing to our inference of different questions. We'll get to that. Right. We're talking about a use of it. Right. But in the context of inducement, what the Supreme Court said in Grocster is that there has to be evidence of intent to cause infringement. And here we certainly have evidence of intent to cause infringement because the drawings are correct and encourage. No, but it says, it also says that the Supreme Court also said that it doesn't matter whether the encouragement was received because the point of the encouragement is to show the state of mind of the encouragement. Let's suppose we say that encouraging is necessary. It has to be some encourage to find inducement of infringement by helping consumers. There has to be some encourage. There's no evidence in this record. Well, there is evidence of encouragement in two senses, four end users now. I think that the evidence is remarkably strong with regard to the original equivalent manufacturer customers

. And that alone is reason that it was error to grant some judgment. With regard to the end user infringers, the encouragement comes in the form of a more limited promotion in that the reason is that the drawings are advertised to be, for example, 24x drawings or 48x speed drawings. And those features, the 24x speed, can only be achieved by using, for example, this own CLD. But not advertised by a long storage. Sure, you are. No, on the quantum storage website, and we have copies of the pages in the drawing appendix, it says this is a drive that's 24x drawing or 48x drawing. I know that's correct, but for you, you can see. Well, it's telling the whole world that people who would be buying drawings. Do you think there's evidence that consumers read the website? Well, there's evidence that when consumers can't get the drawings to write as advertised, they email to quantum storage and say, my drive is no evidence that they read the website and understood that they would be encouraged to use it for infringing, well, whatever, whatever, the fact is, infringed to be exciting. Your Honor, I think that what the record shows is that people who buy the drawings are trying to buy drawings that write at particular speeds, and the evidence is that they can't write at particular speeds without using infringing features, and the evidence is also that when they are unable to write at the speeds that they desire, they complain about it. I want to ask another question, would you simply say that if you want storage to be manufactured? My understanding is that the manufacturer is alleged to be infringed because they test the product to see if the product is stored correct. Yes, Your Honor. Okay. What ever insisted that the product is stored and do that, the testing that would be infringed is going on? My Honor, storage helps them to carry out the tests. Your Honor, they have a dedicated sales force for each of the major computer manufacturers whose job it is to ensure that the tests are carried out in such a way that the fee-to-dress performance, the specifications demand. And so they have full-time people for hew-up hacker for Dell, for Gateway whose job it is to be sure that the drives would be qualified for use in those computer companies devices. So they knew about it, they helped develop the test protocols. There is no doubt about the fact that they know what is going on there. And the question is, why is Dell, why are Dell and Gateway doing these tests? It is not because Dell has an awful lot of DVDs that it would like to record that the tests are being carried out

. Rather, the tests are being carried out to ensure that when end users, turn off the computers and record this using the drive, which is what the purpose of the drive is, that they will do so in the fast, reliable, convenient way that is made possible by the pandemic that is here. Okay, so let's turn to the consumer current. Yes, Your Honor. Do you agree with this question, the first question here is to whether the inclusion of this right feature in here can be considered separately from the devices at home? Well, I don't think this is where the dwellings are. And your view is that because there is a portion of the hardware here that is used for quite only, that there is not a substantial non-finished use for that portion of the device, that's correct. And what was the other show that was given to show that there is a separate portion of the hardware available to the right home? Well, the evidence shows that you can buy or read only drive. So you can have all of the hardware for reading, which is sold separately by Quanta. And for more money, you can pay to get the drive that reads and writes. And those writing the software modules and the associated circuitry for which you pay extra than anybody who's writing the circuitry hardware is necessary for the right function. It's undisputed, Your Honor, that there are software modules in the drive that are designed for writing, that have no other hardware. I think the reports talk about software modules and associated circuitry. I do not recall the level of detail, which the hardware was analyzed, but certainly the software modules are distinct and have no separate use. But the methods that are reciting and the claims of these factors are performed. They use not only on the software modules, but on the software, so-skeling hardware that might be, but by things like the motors and the lasers and things that are shared, the read function, the optical drive, in other words, the optical drive that we're talking about that performs both the recampability and the right capability. May have separate functionality and may have separate components, but they're also a lot of shared components. It is not easily separated, but this is not a question of having in one shell a separate reading unit and a separate writing. Well, I think the way to approach that issue, Your Honor, is by reference to the text of the statute, which says that liability for contributory infringement attaches. Whenever a person sells a material apparatus for use in practicing the patent of process, constituting a material part of the invention, knowing the same to be especially made or adapted for use in an infringement of such a patent and not a state of law or both powers, or for substantial amount of infringement used. When one looks at that and says, well, what do I have to, what is it that has to be especially made or adapted for use in an infringement? It is a material or apparatus that constitutes material part of the invention

. I don't think there's any doubt that the software modules that issue here constitute a material part of the invention and are therefore because they, we know that they can be separated, are suitable for analysis under the statute. Now, it may also be the case that you have a product where there are, but suppose one sold subassemblies, it might be able to sell the right ship with other associated hardware that would be put into the product. That might also be a contributory infringement. I don't think the analysis has to happen at just one level of the machine. What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? 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What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What's your theory? What We're establishing a direct infringement by the end user, excuse me, by the original equipment manufacturer, computer makers, and by the Fendon-New, and some of the tests showing that all of the features are used or summarized in, for example, a footnote four of our required number of representations. With respect to the direct equipment for final pursuit, we've not established the D. But you're on it, and this comes back to the point I was beginning to make in response to Judge Lynn's question earlier. There is no good way to establish direct infringement here, and that is a key point distinction between this case, for example, ACHO. And that's for two reasons. Number one, even if you could find the end users who have the quantum drawings, they would not be able to tell you whether they're doing the infringing methods because the methods are invisible for the most part of the time. So, in the end user, the first part of the problem is that the end users, the end users, are not able to tell you whether they're doing the right thing or not. So, if you go to your notebook computer, rip the drive out and look at it, it will not say quantum, it will say, the books are so many or opt-ears, and it will probably have the name of the computer maker on it too. And so, even if you ask people, do you have a quantum drive, they would be able to tell you. So, the only place to go to find out how many of these drives there are and where they ended up is with the original equipment manufacturer, people who we spoke to, and even they don't know which drives end up going into which computers, because you're new to establish direct infringement. You're on our, I believe the mechanics, we have the best evidence that's available to establish direct infringement because of the way that the drives operate by default. And I think I realized that in an echo and in Dynacore, the core state of the principle, which although appropriate in those cases, is not a binding rule decision for all inducement cases. And if applied too broadly, would run a foul across the right and would also lead to the logical result, I think the key features about Dynacore and about Paco, where that you had a situation where there was no evidence that anyone could actually directly inferential patent. There was no evidence of inducement or intense to cause infringement. In fact, just the opposite, all of the instructions in those cases were to use a non-fringing method

. And finally, all of the certain substantial evidence pointed against their being any directing infringement. And in those circumstances, the corpus worked to say, look, do you want to avoid summary judgment? You've either got to show us that somebody really did this or else you've got to show us that there's no way to avoid doing it. But without anything there to go on, we have to grant summary judgment against you. And here, by contrast, we don't have a good way of getting evidence of directing infringement unlike an actor. So it's, and it would be unreasonable to require direct proof that they can't be gotten. Second of all, there's strong circumstantial evidence of directing infringement not only by the people testing, but there's direct evidence of that, but by the end users, because of the way the drive is designed to operate automatically. And finally, there's evidence of encouragement for our rights. That you can refrain from the way the drive is designed to operate automatically, but as we discussed, this was a separate of the patents and several of the features that are also wasted, which the article drive cannot operate without infringement. So, the question is, why would an impreasible one could disable the features of the drive? One could, one could, technically, certificate the use of the food. But even in those circumstances, you would have infringement to the patents and so on. And then you got situations where they aren't really the, the, the offer on the run, and you may have other situations, so it's not automatic. Well, if automatic means that it, excuse me, if, I think it would be an on-roll, if, if, if we're necessary to show in order to, to, to survive a liability question on summary judgment. I mean, maybe that could be arguments made, because it's interesting question whether arguments would be made about the extent of damages as a result of their possibly being some circumstance, which is not a print. But in order to avoid summary judgment of liability, given the high likelihood that this happens and the evidence that people complain when it doesn't happen, given the direct infringement. Why didn't you, you know, you had this question, right? What was the story of course, so, you had the ability to survey consumers, you had to say, what, but I think the outcome that you didn't get any evidence of direct evidence of direct infringement. What, you, in the position of having a lot of these influences? Well, that was the point that I was trying to make a response to a blinse question earlier, is that there is no reliable way to identify who has these drives, and even if you could find them, they couldn't tell by looking at the drives that they had a quantum drive. And even if they could tell that they had a quantum drive, they wouldn't know except in the rarest of circumstances whether the drive was carrying out or not. But, you run it again, I think in circumstances where there is, where there is strong circumstantial evidence that it happens, where there is evidence that it was intended to happen, and that the drive was designed specifically to facilitate this behavior, it seems odd to require that if anything less than a single step, then a 100% infringement results from the use of the product that their cantin liability for a juiceman. I think in Groster, again, it was assumed that there was some non-copyright awards that were being copied, and at the Supreme Court was willing to say that there was enough evidence there, there was a misattention

. There was some significant sense of vulnerability. Well, we have extensive evidence here of direct infringement in the form of people complaining when they couldn't write in a way that was promised. But your infringement case is not limited to the only those people and only those tests that have come to your allegation, which was respect to direct infringement across the board based on ball-sales of the obliquid grounds. Yes, but even quant as undamages expert Dr. Reed did his calculation based on all of the infringement sales. He equipled about how many drives actually made it to the United States, but he didn't try to reduce the amount of damages based on the thought that some people might not be carrying out infringement. So I think the assumption quant his own case is that the drives are used in infringement. I appreciate it. Thank you very much. If there is no dispute here that if a driver's reading is not infringing, an under the contributory infringement statute, if a device and apparatus has a substantial non-trimbing use, there's no contributory infringement. The statute focuses on the thing that was sold having a license of a driver's reading. I would say in that case you look at whether the allegedly infringing use is a substantial non-trimbing use. And I think here there's no dispute that reading is a substantial non-trimbing use. I'm saying that you look at the substantiality of the non-trimbing use. I'm suggesting that pounding the nail into the board is not a substantial non-trimbing use of that hammer in that situation. I think if your hypothetical, if the patent is directed to removing nails, then I don't think that pounding the nail into the board would be a substantial non-trimbing use. Here, the thing that was, I think that it's a non-substantial use of that hammer in that instance. I'm suggesting here that.

.. I don't care, I think it would be the truth because in that, I think most people, I think most people, I think, would say that the sale of that hammer has a contributory infringement of the method for removing nails. But I'm trying to distinguish between that and this situation, other situations. I was saying, it's very difficult and important problem. I'm asking where would you draw the line? Well, if you look at the Hode Ash case, which was not cited in the brief, it's at 833-F21570-Budder. I'm not sure that this deal would be bad, I can say, I'm not sure exactly what that case means. Well, let's draw the line in this case. I don't think that this drive is as easily divisible as the plane that they suggested. Even the recos on the expert, Dr. Slesinger stated that each drive has a single laser used for both reading and writing. That's at 8272. It's clear that each disk has one pickup head, one motor and it's been the disk. That pickup head is used for both reading and writing. So does a dual function take you up to the contrary? Or is it because the music bottle might be a bunch or which way you do it? Well, I think it's a method that would be described by the aircraft. I think it shows your honor that there is a substantial non-infringent use of the drive and that you can't divide reading from writing as the plane of his suggested. If I use it 50% of the time, the reading 50% of the time, the right position would be sufficient. Well, there's no evidence of end users and how often or how frequently they use the drive. Well, I would think that there would be 100% of the time a substantial non-infringent use because in this case, you can't divide reading from writing. So there is a substantial non-infringent use for the thing sold and the statute focuses on the thing being sold

. Not a subcomponent of what's being sold, but actually what was sold. You look at what was sold. Is there a substantial non-infringent use for the thing being sold? You know, the statute used to work with components. A component of an apparatus, but the component is the thing being sold. Here, the drive itself is the component, the thing being sold. Well, I mean, this is for a trod, because you're saying any time, no matter how elaborate the device is in being designed to properly bridging the method that as long as it is, some other use, even though that use doesn't require all features of the slides that it could come from. I'm not saying in every instance, I'm saying you look as worse than one. Well, I can draw the line in this case, and I think maybe you take that up on a case by case. In this case, there is clearly a substantial amount of use for the thing sold, and you cannot divide the reading from the writing function. When it's an entry, I thought that the word was sold for modules, and perhaps hardware, or all such, which was only used for the write function. That software may be used only for the write function, but that is only one of the steps of the claim. There are other steps of the claim for which you have to spin the disk. Yes, but I'll discuss this data of a particular element that meets the terms of the standard. But we're not selling that component. We're selling an apparatus, which is a part of the apparatus. It provides the white capability that has no substantial amount of information here. I would say that there is software that may be used to do some of the four features, but that make up what happens. But it's not clear that those four features are actually infringing when used. There are lots of ways to record, and therefore use some of that code that wouldn't be infringing

. You could use the drive at a low speed. You wouldn't use ZonCLV. You could record without interrupting, without doing other things. You wouldn't use buffer underrun. There are lots of things you can do with that code that would be not infringing. No, I don't think by just selling that code, you are selling something that does not have a substantial amount of infringing use. You're saying the software modules that are in the devices that you're selling are not specially in the active control field. The function set of four features claims that these patterns are. That's correct. As the court noted, not all reporting, they're designed to record that module, that software module, is designed to record. It's not necessarily designed to record using those particular functions. I don't think you can divide the slide. It's like in your drive that provides that capability. You can use sound drives that provide the capability that are set for these clients to be enough. I would comment with that saying, no, we don't, because we have a non infringement position. But we do provide drives that perform the four features that we go with letters, claim infringement patterns. And what is it that gives you the capability to perform the function case to software modules? But it's the entire apparatus that we sell. The pickup head is the motor, it is some software. There is a number of different components of the entire apparatus. There are software modules and some associated hardware in our portal. Yes, but that software module that is a part of it, some of it may deal with recording, but not all recording is an infringement. You can record even at high speeds for some of the drives and not implicate the ZCLV mode of which we go with that just in print as well. So you say even the software modules, the components that provide the capability to have additional functionality that you would argue is a substantial amount of the function now. Certainly the entire software component has other functionality. That's right. Where do you draw the line about dividing? Do we have to go to the line? That's what I'm trying to suggest is that you should look at the thing being sold and does it have a substantial amount of infringement. The idea here is not to rewrite the law of contributory infringement. You still don't answer the question of the inducement. If the product has a substantial amount of infringement, it would go into a proposal subordition. But they're related. They're both related to an indirect infringement. The ZCLV is a great evidence by experts, calendars, what portions of the hardware and software are going to provide them. Are we going to have that? No, I'm not. Do you have that? Is it part of the summary? There is some testimony in the record about what part of some piece of software is dedicated to a certain function, yes. But if you look at the entirety of the software, there's no dispute that that software is used for both reading and writing. And that's why I'm suggesting that the answer to this question is not to rewrite the law of contributory infringement, where you focus on the thing being sold. And under the statute, if the thing being sold has a substantial amount of infringement, there's no contributory infringement. That doesn't match what it is to dance

. There are software modules and some associated hardware in our portal. Yes, but that software module that is a part of it, some of it may deal with recording, but not all recording is an infringement. You can record even at high speeds for some of the drives and not implicate the ZCLV mode of which we go with that just in print as well. So you say even the software modules, the components that provide the capability to have additional functionality that you would argue is a substantial amount of the function now. Certainly the entire software component has other functionality. That's right. Where do you draw the line about dividing? Do we have to go to the line? That's what I'm trying to suggest is that you should look at the thing being sold and does it have a substantial amount of infringement. The idea here is not to rewrite the law of contributory infringement. You still don't answer the question of the inducement. If the product has a substantial amount of infringement, it would go into a proposal subordition. But they're related. They're both related to an indirect infringement. The ZCLV is a great evidence by experts, calendars, what portions of the hardware and software are going to provide them. Are we going to have that? No, I'm not. Do you have that? Is it part of the summary? There is some testimony in the record about what part of some piece of software is dedicated to a certain function, yes. But if you look at the entirety of the software, there's no dispute that that software is used for both reading and writing. And that's why I'm suggesting that the answer to this question is not to rewrite the law of contributory infringement, where you focus on the thing being sold. And under the statute, if the thing being sold has a substantial amount of infringement, there's no contributory infringement. That doesn't match what it is to dance. No matter how much hardware it is, no matter how much software it is, which can only be used to be framed. I'm not saying that perhaps I would have to look at each item being sold on a case by case basis to determine whether it would be possible in some circumstances to divide it up. What I'm saying here, at least here, if we look at the product being sold, it's not easily divisible. Their own expert has said that. Their own expert says that there are pieces of this apparatus being sold that are used for both reading and writing. What do you understand? Are we going to slow the product under original question to sustain it? I suppose it would depend on the particular case before you. And whether you thought that that was a trivial use or not, or non-substantial use. What I'm suggesting here is reading is clearly a substantial amount of infringement. It's a discous useless that you can't revert it. So reading, that's not a question presented to you here in this case. Reading is clearly a substantial amount of infringement. If you cannot revert that drug, it's useless. You don't want to drive it that you can just record, but you need a drive that you can read with. So here this, substantiality is not a question. So let's look at the facts of this case. Extantiality is clearly not a question. You can't divide the product as they suggest. Their own expert suggests you can't divide the product. So TGL is a question

. No matter how much hardware it is, no matter how much software it is, which can only be used to be framed. I'm not saying that perhaps I would have to look at each item being sold on a case by case basis to determine whether it would be possible in some circumstances to divide it up. What I'm saying here, at least here, if we look at the product being sold, it's not easily divisible. Their own expert has said that. Their own expert says that there are pieces of this apparatus being sold that are used for both reading and writing. What do you understand? Are we going to slow the product under original question to sustain it? I suppose it would depend on the particular case before you. And whether you thought that that was a trivial use or not, or non-substantial use. What I'm suggesting here is reading is clearly a substantial amount of infringement. It's a discous useless that you can't revert it. So reading, that's not a question presented to you here in this case. Reading is clearly a substantial amount of infringement. If you cannot revert that drug, it's useless. You don't want to drive it that you can just record, but you need a drive that you can read with. So here this, substantiality is not a question. So let's look at the facts of this case. Extantiality is clearly not a question. You can't divide the product as they suggest. Their own expert suggests you can't divide the product. So TGL is a question. The question is, is it a substantial amount of infringement used to one part of the product and the form of infringement? Or is there the only use of another part of the product is to infringe? I don't think they've established that there's just software that by itself, loan and French. That's not the limitations of the claim. The limitations of the claim require that you use a laser and the lasers use for both reading and writing. So let's look at the entirety of what is being claimed here and determine whether that has a substantial amount of infringement used. The entirety of what is being claimed here is also, you need the laser on it to form some of the steps of the method. You need to spin the dead in order to perform some of the steps of the method. So if you look at the thing being sold, you can't divide it along the lines that are suggesting. It's not as easy as your camera argument, your honor. It's not as good as it is. The thing that was sold in this case was a dual deck unit. One deck reads and one deck writes in the air and completely separate and separately electrically connected. But they're in the same housing and that's what's being sold instead of contributing to our infringement. I would like to know more facts, but I think you're getting perhaps closer to a situation where perhaps someone just hacked on a drive that could read to a box that was primarily designed to record. In that case, if that were the fact presented, then in that situation perhaps. So it's not a question of just looking at the device that's sold because it's not hypothetical. The device that's sold is a dual deck unit. But at least for this case, I would like to focus on the device being sold and the patent claims. And what is it they're claiming? They're claiming methods for those methods you need to laser. For those methods you need to spin that disk

. The question is, is it a substantial amount of infringement used to one part of the product and the form of infringement? Or is there the only use of another part of the product is to infringe? I don't think they've established that there's just software that by itself, loan and French. That's not the limitations of the claim. The limitations of the claim require that you use a laser and the lasers use for both reading and writing. So let's look at the entirety of what is being claimed here and determine whether that has a substantial amount of infringement used. The entirety of what is being claimed here is also, you need the laser on it to form some of the steps of the method. You need to spin the dead in order to perform some of the steps of the method. So if you look at the thing being sold, you can't divide it along the lines that are suggesting. It's not as easy as your camera argument, your honor. It's not as good as it is. The thing that was sold in this case was a dual deck unit. One deck reads and one deck writes in the air and completely separate and separately electrically connected. But they're in the same housing and that's what's being sold instead of contributing to our infringement. I would like to know more facts, but I think you're getting perhaps closer to a situation where perhaps someone just hacked on a drive that could read to a box that was primarily designed to record. In that case, if that were the fact presented, then in that situation perhaps. So it's not a question of just looking at the device that's sold because it's not hypothetical. The device that's sold is a dual deck unit. But at least for this case, I would like to focus on the device being sold and the patent claims. And what is it they're claiming? They're claiming methods for those methods you need to laser. For those methods you need to spin that disk. Not motor that spins that disk. That laser is used for both reading and writing. So if you look at the thing being sold and the thing being claimed, there is no... There is a substantial amount of Virginia's here and that's reading. And it's not as easily divisible as they suggest their own expert has sent that. They're all excellent. So if it's back dependent on this case, then maybe we have to have a trial to determine whether the case falls on the side of the one, the other side of the one. Because apparently there's not a very clear evidence right now. It's to what aspects of the hardware are sought to be uploaded on to be introduced. But I think it is undisputed. If you look at their recose-owned expertise, they say that each drive has a single laser used for both reading and writing. That's at 8.27.2. It is quite clear that you cannot divide that laser between a reading and writing function. That's not really what it is. I think that should be enough

. Not motor that spins that disk. That laser is used for both reading and writing. So if you look at the thing being sold and the thing being claimed, there is no... There is a substantial amount of Virginia's here and that's reading. And it's not as easily divisible as they suggest their own expert has sent that. They're all excellent. So if it's back dependent on this case, then maybe we have to have a trial to determine whether the case falls on the side of the one, the other side of the one. Because apparently there's not a very clear evidence right now. It's to what aspects of the hardware are sought to be uploaded on to be introduced. But I think it is undisputed. If you look at their recose-owned expertise, they say that each drive has a single laser used for both reading and writing. That's at 8.27.2. It is quite clear that you cannot divide that laser between a reading and writing function. That's not really what it is. I think that should be enough. I mean, you're looking at the thing being sold out. My suggestion is not to rewrite the book and then again to say that the fact that some aspect of invention could be used in an auto-fragile manner is sufficient to make the whole thing non-fragile. That seems to be a screen decision. And you can have a different audience for it to walk around. I think you draw the line while looking at what's being sold and what is being claimed. And if what is being claimed is, and what is being sold here, has a substantial amount of ginger use as in this case on the undisputed facts. There is a substantial amount of ginger use. I think the statute itself focuses on the component being sold. The thing being sold. I don't think the answer is to rewrite the statute. I think that would be the wrong way to approach the problem. If you're bothered by your hammer-hipotentical, the thing to do is to look at inducement and whether there has been inducement and other indirect liability theories of infringement. It's not to rewrite the statute. I think the statute is quite clear that if the apparatus, the thing, the component being sold, has a substantial amount of ginger use in this case. There is no liability for contributory infringement. That does not answer the question on inducement. I think that's the right way to look at this. I don't think it's possible to draw the line as you're suggesting. In any event, in this case, it's clear that you cannot divide that apparatus as the finance would suggest even their own expert disagrees with that

. I mean, you're looking at the thing being sold out. My suggestion is not to rewrite the book and then again to say that the fact that some aspect of invention could be used in an auto-fragile manner is sufficient to make the whole thing non-fragile. That seems to be a screen decision. And you can have a different audience for it to walk around. I think you draw the line while looking at what's being sold and what is being claimed. And if what is being claimed is, and what is being sold here, has a substantial amount of ginger use as in this case on the undisputed facts. There is a substantial amount of ginger use. I think the statute itself focuses on the component being sold. The thing being sold. I don't think the answer is to rewrite the statute. I think that would be the wrong way to approach the problem. If you're bothered by your hammer-hipotentical, the thing to do is to look at inducement and whether there has been inducement and other indirect liability theories of infringement. It's not to rewrite the statute. I think the statute is quite clear that if the apparatus, the thing, the component being sold, has a substantial amount of ginger use in this case. There is no liability for contributory infringement. That does not answer the question on inducement. I think that's the right way to look at this. I don't think it's possible to draw the line as you're suggesting. In any event, in this case, it's clear that you cannot divide that apparatus as the finance would suggest even their own expert disagrees with that. Well, the theory really question the fact that it has to be the problem of the issue of the condition. I think the court was correct when we were somebody driving to places on the issue of the condition. I think the court was correct in noting that the only evidence relevant to the inducement question was all directed to the branded computer companies. So, any evidence that all of inducement would be directed to the branded computer companies. Those branded computer companies test a few sample drives every year. I think it's important to point that out. On the inducement question, they point to technical specifications. First of all, they point to a technical presentation made by a jointly by a quantum storage and Phillips to doubt. In the first instance, I don't think that's relevant evidence because Phillips, there's no dispute that drives our license. And the witness, Mr. Chen, testified that you need to look at, on a case by case basis, to determine what was in each presentation of each branded computer company. So, I don't think you can extrapolate from that one presentation and say they're all saying that's the point that he's trying to do here. What is quantum oversell in products that include these products? Quantum computer sells computers to branded computer companies, but quantum storage does not. Quantum storage sells some drives to the one computer sells to the entire computer. Yes, your honor. The grand company in the event would respect the those items as a communication between quantum and ultimate consumer of the product. There's no evidence of any communication between quantum computer and the ultimate consumer of the product. In fact, the only communications that we have here are emails and I think, the plaintiff's counsel misphote, those emails are not directed to quantum storage. They're directed to Hugh Apacr, who then passes them to quantum storage and quantum storage simply replaces the drive

. Well, the theory really question the fact that it has to be the problem of the issue of the condition. I think the court was correct when we were somebody driving to places on the issue of the condition. I think the court was correct in noting that the only evidence relevant to the inducement question was all directed to the branded computer companies. So, any evidence that all of inducement would be directed to the branded computer companies. Those branded computer companies test a few sample drives every year. I think it's important to point that out. On the inducement question, they point to technical specifications. First of all, they point to a technical presentation made by a jointly by a quantum storage and Phillips to doubt. In the first instance, I don't think that's relevant evidence because Phillips, there's no dispute that drives our license. And the witness, Mr. Chen, testified that you need to look at, on a case by case basis, to determine what was in each presentation of each branded computer company. So, I don't think you can extrapolate from that one presentation and say they're all saying that's the point that he's trying to do here. What is quantum oversell in products that include these products? Quantum computer sells computers to branded computer companies, but quantum storage does not. Quantum storage sells some drives to the one computer sells to the entire computer. Yes, your honor. The grand company in the event would respect the those items as a communication between quantum and ultimate consumer of the product. There's no evidence of any communication between quantum computer and the ultimate consumer of the product. In fact, the only communications that we have here are emails and I think, the plaintiff's counsel misphote, those emails are not directed to quantum storage. They're directed to Hugh Apacr, who then passes them to quantum storage and quantum storage simply replaces the drive. It wouldn't have been possible to do marketing studies to find out how many users recorded and did other things while they were recording, which might have given rise to a buffer underrun, or recorded using what media and what speeds. All of those things could have been done, but were not done. And you could just pull the Dell's customers in general and get that information, even if you didn't know that a particular computer had what particular driving it, at least you would have an idea how end users use these drives. And in fact, if you use the sales data that was produced by Dell, you could have figured out what computers were sold with what particular driving done that kind of study that wasn't done here. With Dell, the contributory of the computer that had a described that only performed the right capabilities that we would discuss in here, because arguably the computer has a substantial amount of information used for other purposes. Would Dell not have contributed to any of the printures because they are for all the computer that do the whole stuff of other things totally unrelated to the... I think that comes back to the same question we were debating before on the Virginia Touring Finch, and is there, is what Dell selling does it have a substantial amount of information used? My hypothetical is that the right drive that is connected only performs the functions set forth in the method points. So there's no... The question about is it a real right? It's only a right capable drive that performs these specific functions that are put in these method points. If it's only capable of performing the specific functions set forth in the method, I think that it could be a contributory. But, yet, they're selling the product that they're selling is a computer that breaks the right. Oh, a computer has a substantial amount of printing used in these examples of things having nothing to do with the drive. And that's true. I understood you to suggest that they were selling only a drop. No, a computer with the drive that only performs the right capability specified in these methods

. It wouldn't have been possible to do marketing studies to find out how many users recorded and did other things while they were recording, which might have given rise to a buffer underrun, or recorded using what media and what speeds. All of those things could have been done, but were not done. And you could just pull the Dell's customers in general and get that information, even if you didn't know that a particular computer had what particular driving it, at least you would have an idea how end users use these drives. And in fact, if you use the sales data that was produced by Dell, you could have figured out what computers were sold with what particular driving done that kind of study that wasn't done here. With Dell, the contributory of the computer that had a described that only performed the right capabilities that we would discuss in here, because arguably the computer has a substantial amount of information used for other purposes. Would Dell not have contributed to any of the printures because they are for all the computer that do the whole stuff of other things totally unrelated to the... I think that comes back to the same question we were debating before on the Virginia Touring Finch, and is there, is what Dell selling does it have a substantial amount of information used? My hypothetical is that the right drive that is connected only performs the functions set forth in the method points. So there's no... The question about is it a real right? It's only a right capable drive that performs these specific functions that are put in these method points. If it's only capable of performing the specific functions set forth in the method, I think that it could be a contributory. But, yet, they're selling the product that they're selling is a computer that breaks the right. Oh, a computer has a substantial amount of printing used in these examples of things having nothing to do with the drive. And that's true. I understood you to suggest that they were selling only a drop. No, a computer with the drive that only performs the right capability specified in these methods. But they also have a contributory in the printer. I think, under the statute, you would look at what was being sold. And if it has substantial non-infringing use, then they wouldn't be a contributory printer, but they certainly may be guilty of inducing. I think that's the proper analysis. But you're still reading, or I have to show some communication. Yes, there would have to be some communication with the direct infringer. There would have to be some encouragement of those end users to record with the drive. That's all you would need in judgment hypothetical because the recording automatically performed those features. But I don't know if that's not our case. Did you say that they're not necessarily off the bus? They may be subject to the inducement plan. That's correct. They still may be subject to an inducement plan. There are apparatus claims in these paths as well. And they could have sued on those apparatus claims. And they all could be in your hypothetical code, be sued on the apparatus claims. And then you don't need to look at this issue. They chose not to sue on the apparatus claims they could have done that. That's another way to look at the particular issue. That's a choice they may

. But they also have a contributory in the printer. I think, under the statute, you would look at what was being sold. And if it has substantial non-infringing use, then they wouldn't be a contributory printer, but they certainly may be guilty of inducing. I think that's the proper analysis. But you're still reading, or I have to show some communication. Yes, there would have to be some communication with the direct infringer. There would have to be some encouragement of those end users to record with the drive. That's all you would need in judgment hypothetical because the recording automatically performed those features. But I don't know if that's not our case. Did you say that they're not necessarily off the bus? They may be subject to the inducement plan. That's correct. They still may be subject to an inducement plan. There are apparatus claims in these paths as well. And they could have sued on those apparatus claims. And they all could be in your hypothetical code, be sued on the apparatus claims. And then you don't need to look at this issue. They chose not to sue on the apparatus claims they could have done that. That's another way to look at the particular issue. That's a choice they may. But the statute is clear, if the thing being sold has substantial non-infringing use, you're not liable to contribute to our infringement. Although admittedly, that does not answer the abusing question. That is a separate issue that we should take out. Quickly, the website, Ed, were in an enforcement. Four seconds, sorry. I think I'll conceive my four seconds. Thank you. I'll try to cover just a couple of points briefly, then, in response. On the inducement issue, there is, in addition to the advertising that we spoke of earlier, there's also evidence of repair, service, and replacement of the drives for end users carried out by quanta, including software updates, specifically for, for example, the right strategy, which are directed to the infringement features of the drives. And that does indicate an intent on the part of quanta to perpetuate the infringement use on the part of end users. On the question of whether design can suffice to show inducement, whether there is evidence of intent to cause infringement, I would direct the court's attention to page 22 of our brief. The Water Technologies case, the Crystal Semitins, Dr. Case, and I have a case that's out there, I think strongly stamped the proposition that design can give rise to an infringement and inducement liability. And finally, the additional piece of the inducement evidence is, again, when the drives don't perform as promised, and the end users complain about it, that is evidence that the drives have been used in the intended fashion. With regard to contributory infringement, respectfully, I think Mr. Garnett was thanking the question by saying, well, you look at the things sold, you look at the things sold. The question that the court kept asking was, where do you draw the line, how do you decide what to look at? And we would answer that by saying that one looks to the specific language of the statute, and any time one sells a separable component constituted in the material part of the invention, one has crossed into 271 to just a one C liability. And that may have been a part of the injection being a pre-problem problem. I think a material part of the invention in this context would need something that is used to meet at least one claim limitation

. I think that would be a sensible starting point for that. And here we do have a software that's used to meet a number of claim limitations in terms of the way controls the drive. And ultimately, to be sent to the one word except Mr. Garnett's indication to decide all of this on a case-by-case basis, then this would surely be a case that would be sent back for a derivative aside, whether there was substantial line infringing uses of the various components addition. Thank you