construction should still be reversed is it a question of fact whether the magyars clock generator could be considered an oscillator you know your honor because it's contained entirely within the intrinsic record there's no extrinsic evidence that's considered the prosecution history is limited to the comments of the applicant and the and the materials that are before the court and so we're just looking at the intrinsic record in this court it's held that looking only at it together that's it's just a matter of  instead of the clock generally or sell us also later comprised off chip and on chip components through the to him is that an accurate reflection of  prosecution history if you look actually we came back and we sort of it's a double clarified this at age twenty one to one we made sure that we were clear and we said applicants prior comments did not make oscillator and that's the issue there is no entire oscillator on chip case so let me just tell you what i think about this case and what i think your problem is and you can tell me why you can somehow get around this problem when i think about this this is going to be a long w questions just get comfy so what i think about this question about this case is what your client involved invented was variability a variable signal frequency signal going into the u and that variability was by virtue of putting the oscillator on the chip such that it varied with temperature or conditions that affected the substrate generally that's what he invented that's what he sought to invent that's what he invented and showed in his pictures and that's why he isn't like meg marr the problem is then you have this infringing device in the infringing device comes along and it has a crystal generated frequency off chip just want to make sure that i understand so there's an off chip frequency generator and so did your picture in your brief which demonstrates how the accused device works let's see what it is pretty straightforward  twenty one of your brief a simple diagram that shows the arrangement of the accused right isn't this isn't this what you think these cute devices from page twenty when you're on your break that picture that's right that's right point even out of the control circuitry it was still a fixed frequency signal and now all suddenly because it goes through the ring oscillator it has morphed the signal into a variable signal and so if you have a variable frequency signal now going into the c signal comes in from the from the courts crystal it feeds into that control circuit and coming out of that is not some sort of two hundred megahertz signal or two bigger hertz signal what's coming out of that is some control signal which then allows the main oscillator but it's still  so what you say is the ring oscillator which is on chip creates a variable frequency which is then going to be fed into the c p u and you think that's the crux of what your claimed invented correct and that would be different from mag are clearly ok but the problem is and this is the problem for you as far as i'm concerned is that your prosecution history you clearly and unequivocally over disclaim you didn't need to disclaim as much as you did but you didn't  infringing configuration you were looking only at mag r and then you were looking at your device and the sort of death knell for me of the prosecution history is a single sentence on page twenty one zero three beggar teaching is well known in the art as a conventional crystal controlled oscillator it is specifically distinguished from the instant case in that it is both fixed frequency being crystal based that's the variability versus fixed frequency argument that you make throughout and requires external crystal or external frequency generator well whatever your disclaimer is precisely it seems to read directly at least on the infringing device in this case which while is nothing three quincy is nonetheless using an ex varying limitation that's within the clay i know and they have very ability so you're not that's that's not a problem for you and then for impressions and then it requires an extra crystal so it requires something that's that does not allow the magara system judge moore's question or thrust of a question that looks like we can read this prosecution history pretty plainly and saying we're looking at an on board oscillator whose frequency is not fixed and does not rely on an external crystal or external frequency generator period so what's wrong with that reading of of the sentence i think that's actually a different reading than what the y again this key sentence on j twenty one zero three you know why isn't the logical reading that york on board oscillator has a frequency that's not fixed and does not rely on an external crystal or external frequency generator so i think the question is what does it mean that it's that it's not fixed and so that we don't actually think that i don't personally think that's a question i don't have a problem with you on that my problem is that you went further you didn't stop and put a period there you decided to wear there and a separate requirement and a separate requirement of our system is it doesn't sort of defeats the apparent and ambiguity and not ambiguity of this sentence on j twenty one three i think on j twenty one i want my statement are supplied generator relies on an external crystal to it than just the fact that it can't have an external crystal or an extreme frequency generator there's a purpose restriction that's that i say guess you're saying from magara is relying on an external crystal or external frequen generator and then you're saying that well your claim is different because it doesn't rely on any kind of external crystal or external frequency generator i guess on i'm not seeing the ambiguity we're saying that it sense that i am not aware of any cases your honor where there has been such complete disclaimer and multiple amendments and multiple times well this is amendments wait wait wait wait wait there are some guest or course and disagree with you audience completeness with respect to the federal circuit with restrictive federal circuit law so in this case we have a situation where the applicants disclaimed over multiple amendments sometimes within the same amendment several times choosing to use somewhat different words each time but the substance is the same and as the district court here found that the old using the district courts works the ultimate prime of claim construction in this kind of circumstances to accurately capture what actually happened in the patent office and so in this case unlike maybe one other case where your honors might be faced with a single sound what happened when it was clearly a disclaimer as opposed to ambiguities i don't well your honor our case what's common about all of them all of them found disclaimer all of them found this simply were of the use of an external crystal and all of them found disclaimer of the control signal the only difference is that in this case the those down a little dimmer and looked at the exact words that were used and found that the disclaimer issued a disclaimer construction that was closely mapping to what was actually i disclaimed which in the case of i guess what we have here are are different wording so just to pick up on just why it's a question you would think if it's such a clear and unmistakable disclaimer that all these different tribunals would articulated the exact same disclaimer and yet they didn't there's some friday in the language they use and what i'm trying to figure out is this does the variety of the language suggest maybe there's some lack of clarity around the edges of what the scope of the disclaimer is but then there's a core disclaimer right in the middle that's very very clear and unmistakable and so can you if that's the case and i think that's probably what your argument out of me to the extent that there's undoubtedly varying language being used by all these tribunals can you identify what's the consistent there is no disclaimer at all at least initially from wells and then they rapidly backpedal for the title argument but that the disclaimer i mean what ultimately governs here with all due respect of the other decisions of the district court is not what those constructions were none of those constructions came up to this court for review and so what we're looking at is what was the actual language used by the applicants and with respect to mag or i will repeat the quote from two one of the three we already heard that were specifically distinguished this being over the fixed captures both aspects of that that was lacking in some but not all of the other decision that's assuming that your infringing device operates to some extent the way it is drawn on page twenty one of the blue brief and since there's a stipulation  infringement i don't really know how your device operates so i'm not so concerned with it but assuming it does i guess why i have and why did they argue that why do they stipulate to they stipulated to infringement or in this construction like what is it about this disclaimer that you think renders your because because i mean if your entire case it's a control signal will move to that but i thought that there was some stipulation of infringement that under the first part of the alternative seemed can't have this or this or that they seem to have stipulated to not infringement and i can't quite understand why you're not are again i can't clear into their minds but what i can tell you is before this case the district court case the same parties were involved in the international trade commission resulted in a decision of no infringement and as you may recall in that instance i happened is the initial claims for and was somewhat similar to what issued in the administrative law judge quickly came to the deterministic initial determination that in fact those are part and parcel that you can't generate a clock signal without fixing the frequency it's like a metronome one is going to happen without the other the commission up tell them found that there was a disclaimer along the same lines as what the district court did your so that there's no substantive difference and that was the basis of the non infringement finding because in that case on that record without evidence there was a finding that in fact that external crystal fixed the frequency of the onboard clock and that there were control signals as well so they in on that record in that case they lost some of the facts haven't changed that the record is not before you and terms of the accused evidence i suspect again that they that they stipulated because they realize they respect to megara or the one with respect to sheets then this is and affirm that we believe so so your honor and in the face of it i guess that's what i'm trying to figure out toward they'd stipulated because of disclaimer one or disclaimer number two were they disc they stipulated because both together ultimately renders you know the accused products not infringed they never said in the district court they've never said in their reefs what i know is they challenge both problems and i think there's a good reason for that is like in that international treaty action under either prong they lose and they haven't articulated to this court any reason why they would be able to summary judgment on two independent grounds that if we affirm one of those two great the case is over and we don't have to reach the other one but i don't know what to do with this in the form of a stipulation so one is when you tell me what you think will be very very frequency control information in the phrase clock control signals to describe the same thing and as your honor correctly pointed out at this point they're talking about sending something externally but what happened is there was a rejection nevertheless and there was a disagreement between examiner and the applicants as to whether in sheets the c p u on the clock run the same circuit so in response to that what they said in the next amendment which is the january one thousand nine hundred seven amendment to one to seven of there's no command input is necessary to change the clock frequency that's a very narrow little disclaimer that's not real controls like no controls can be signals sure and so i would say two things one is frequency control information clock control i believe so your honor if you look at pictures ten and eleven of the appendix he used them to matter is these are the your devices again we have a stipulation here i don't have all the information i have to be able to understand how your device operates to figure out whether whether this linguistic clearly i believe there is a disclaimer here the question is i personally think right while disclaimer is broader than is otherwise appropriate i think it should be limited to a command signal to change clock speed that's what they can't have command signal or change class b so the question is does that affect anything i don't believe so your honor i believe that there should be an affirmative that i know that they stand up and says say it does because there's a stipulation you realize i got to send you back whether you're right or you're wrong because i don't have all that and how you up or let me just point you to one thing your hon do you think they're referring to the ring oscillator yes your honor and that's that's that's one of the reasons why the last in front of the international trade commission is that there were signals that were controlling this and just to step back to where the panel began with third discussion with appellants invention is a variable clock that varies according to operational characteristics or process characteristics that's not what's happening with these devices these things are being controlled by control signal signal to change clock speed and say that's all you disclaimed are you saying then you the stipulation is no longer binding because i mean don't be technical and say you know just because if i change a single word of a term even if everybody agrees on how the device operates tell me there's if you're going to tell me i have to re man tell me there's a reason that that that change materially is different because of the way the accused device operates so that the the the issue isn't whether you say it's required to change that that we agree with that that with that your honor it's it is we were very specific what we said to spec to command signals and i think other courts recognize that similarly i think that other courts when they were talking about nick are each one of the prior constructions talked external crystal was used to generate and this is this particular instance where it's a little bit different and this goes back to back to judge moore's question you know you said well what's wrong with the current construction why that why did they say that you know there's an issue when you're when you're fixed by an external crystal that's the difference here now we're talking about having our our processors frequency being fixed by and it's an external crystal which means that it can't be adjusted or regulated by an external crystal and that's it that's an issue for us because there is some adjustment or regulation that goes on as a result of the actual crystal in the fire constructions that we were facing each time there was a discussion of an  disclaimer that you said is undoubtedly is broader than the disclaimer than you needed to say and that but nonetheless our law is really clear it's what you tell and ordinarily skilled ours is not what i think you need it it's not like oh well let me only have them give up what i think they needed to give us i agree with you did not need to give up what has been interpreted you you haven't given up but i'm not sure i can if you didn't nonetheless give it up right so like it's still that twenty one of the three twenty one zero three doesn't say requires an extra first built to fix the signal going into the clock or going into the c p or whatever for if you make a much broader statement you say we're not fix frequency and we don't require an extra no crystal full stop you say two things we're not because frequency and we don't require an extra crystal you need to you definitely didn't need to you're right about everything you say about how you operate they realize that i don't get what they're saying i say ok let me be clear your honor let me sum it all up for you that's what we did here so how do i say ok well i'm not going to hold you to the summit all upset and i'm going to dig through the confusing stuff from before here and i think every so often when you make those summary statements your honor you're going to abstract a few things necessarily because i can't get into the detail of what i say the prosecution disclaimer that any any court fight has to be true to what the applicant said and many points they're going to be very detailed as to what they say but at the end they're going to they're going to make some kind of summary statement which caps well hopefully this is a lesson to future prosecutors isn't it because whether you win or lose you know you got raked over the coals in your client paid a lot of money because of really broad unbounded statements and prosecution history that were made by some attorney along the way that wasn't you thank goodness right i'm glad it wasn't me careful inspection of the district courts construction will show that what the district court found is is much broader than what was actually said by the advocate we did not say that the frequency was not explain actual crystals and we did not disclaim all con and just to confirm if somehow there was an adjustment in the disclaimer that indicate that proclaims the at least part of the disclaimer is  questions thank you for helping me understand the technology