and it has a paragraph about the signal characteristics and then it goes on to say after that portion of the study it describes the paris free therapy that was provided an entire study population of patien therapy so it's a system for doing that that's our position is that that's right at the system claims a system the system claims that a signal generator that produces this parasitic free therapy and as long as it does so then it is an infringing system and that's where the district court went awry because it's thought that if at times a system perhaps would not provide the pair's the free therapy then it wouldn't it wouldn't be infringing but that's know in advance both when they're practicing the method and when they're designing the systems exactly what they need to do and what kind of system it is and the extrinsic record confirms that never did an f d a monitored study in which one hundred percent of the parent more doctrinal level before getting into the specifics what in your view is the relationship between the difficulty of the scientist between two possible clean constructions and the indefinite so the supreme court rejected the view that as long as there were two reasonable meetings the claim was indefinite and said instead the question is whether or not a person as you know present still me are right but this is to some extent the reverse as i read the district court opinion or not so let's assume everything it's the court opinion to say i find basically that this claim construction question is so perfectly evenly balanced that on the exact same and deafness question there's nothing like that here just around here in fact the district court's discussion of the term that issued which is signal generator configured generator to labor when he was discussing that term he recognize the record pointed only in one direction and that was in the direction that it is designed and that is the ordinary meaning as this court has recognized of configured so that it where the judge concluded there was compelling for the district court found thought went away for our from our construction he was looking at different terms in different kinds of claims like method claims and not looking at the turn that's an issue signal generator configured to generate or deliver and  especially in a word like configured or configured to which takes its meaning it's a connector word takes its meaning from the words surrounding it the when the context is key and so i guess given following up on george tr question i guess you agree then or your understanding of the law is if there are two equally strong understanding of a claim term two competing understanding that are were conflicting prosecution history answers there were three possible measurements everybody agreed the range depended on which measurement was chosen the claim scope would turn on which measurement was chosen the prosecution history did something like this there were two indefinite rejections the same indefinite rejection and at one point the patent data can't answered melech there m w and at one point in p t so that that that was conflicting that's a direct conflicting irreconcilable answers and a person is going there needed to know what that claim turn meant to measure the range quantities that's nothing like this case here every time the patent uses the word signal generator configured to deliver it's talking about the kinds of parameters means designing to and i am still wondering what does that mean exactly what is it that the inventors here have done just to be clear this court has said that he has equated configured two with design to in the least three cases aspects man mission interface and generally writing to me is actually a different problem for you but let's get to my question that the inventors here from never did to configure the signal generator and that's why i soon we're just talking about a pretty standard signal generator and now the claim says let's configure that signal generator to generate the parents these are free therapy signal so what vast action that the inventors undertaken to accomplish the configuration they've created a signal generator that allows the user to select the parameters of signals described in the claims and so on when you say they created the created what is it specifically will be created they implemented the ability to choose a signal on a signal generator and if the evidence shows it to be as the months and months take their signal generator and change it into the signal generator that would produce the claimed to the claimed device and that that's what configured to means in this context i guess the other side of saying that your understanding of signal generator configured to really bottom is nothing more than a prior art signal generator and then a prior art signal generator and ultimately he is programmed the parameters are selected amplitude toss with all of that but that programming stuff of course is not what you think configured to mean and so i'm just trying to understand to what degree is the other side correct that at bottom your understanding of signal generator is a ready made prior art signal generator that can then be program later on so i think there's a spectrum right and at times they want for private purposes to say that what we're claiming is just a signal generator that could use hardware software and from or could potentially be changed completely to to make it into the claimed invention and on the other end they want to say and the users already selected the signal parameters for the signal but what we're saying is no it's a device that allows the user to select to make the selection at the end of the device as finished where user can't modify the hardware software or firmware but it's provided to the user in such a way that they can practice the claimed the claimed parameters is it would it be a fair summary to say that a signal generator configured to generate the desired signals if we've merely a selection by user among presented to choices will do so when powered on well it could so it builds in the idea of that is a precursor to the program and whether it's an external program or position program or mission program or is there some other precursor or stuff that's just patent disclose that might be understood as something where the inventors are configuring the signal generator yes the because they're making the config configured too so it's a past tense and we are taking account the past  that we're the only added limitation is programming the signal generator and that makes it clear that they're not the  it is seems to me is not necessarily already incorporated in and claim eighteen so that i'm not sure you need this argument it seems to me you may have overstated  representative in the in the operating room is the one completing the device why as a practical real world matter should that make a difference to us either way assuming instructions wrote do it so th way we think the correct construction is ours but we will have an infringement case either way because if in their theory company representative is completing sort of a tailor made device at that  e i was just wondering along those same lines is it possibly too late for you to make those inducement related claims well we've made inducement claims for if if we if we were to deviate there please that format will from boston scientific judge trying to find me again maybe again with your question about parity shift free i recognize a lot of the discussion was about configure too but i don't want to lose the heart of the paras these are free argument accept your question your honor as a as a possible construction of paris the asia but never wrote specifically rejected that construction capability the possibility of a paris these are free treatment they specifically pushed back against that understanding at the patent office to get the patent in the st place so for example we have mr factor who was an employee of boston scientific and then  argument in my understanding was that the whole point of this is that high frequency alone doesn't necessarily get you in paris future free it's also the answer to that three was that sometimes it did and sometimes it did and this was presented as a ground for rejecting the claims and never said no because it sometimes does and sometimes doesn't it doesn't anticipat but they then didn't complete the sentence they didn't and then didn't say and here's the secret sauce here's the magic formula here's the combination of parameters that will always almost always typically pick whatever adjective you want create seizure so that's why i don't want to give up on this paris feature free arguing your honor it's that this was critical to patentability the notion of the prior art devices that had precisely the same technical capabilities that because they didn't always create charts and tables and diagrams those are all about whether the device create alleviates pain the statistics the numbers are all about whether or not it alleviates the pain the paris leisure point here is one paragraph at the end of that chain that says and lots of people felt their sins are free they didn't tell us at what number what kill hurts and what amplitude at what number you're likely to trigger the threshold we have  and of course the typical range of a pattern is one and a half and above so they're telling the patent office doing a bit of a soft shoe and just because the prior art devices can provide just these parameters unless you show that they actually did analysis uses the phrase under experimentation if you wish we can figure out what the parameters are what the claim scope is without undue experimentation will let you keep the claim but here we have never oh telling the patent office for a very important reason time and time again we can't tell you what that is before the fact or after the fact this isn't a situation where we're coming in here and we say well you have to perform this procedure on five patients to figure out what the proper dose enos what the proper signal parameters are what they said over and over again to the patent office and what judge chabra found it again a subject of their review was you can get as much information as you want patient to patient a patient it doesn't tell you as to the nothing feeling let me understand the technology you can have tangling and pins and needles or you can have nothing and you think the weird one is the nothing there of pate there are patients that if you've lived your whole life with back then and then this there are essentially comes to mind the signal generator in such a way for a given patient produces the pairs these are free therapy signal out and then if that's the case then you know you're planes as if i am doing an iterative process with the patient that st signal that i give them if it is paris he's afraid by blind luck i've now in french their past even though they haven't told me they've written their claims is just it's a crapshoot it's a roll of the duds well go ahead and explain why configure to manage program to go well in fact we have and this is  programming then they go on a sentence later and use the phrase actually configured we see claim language like claim one of the one hundred and twenty five dollars patent one hundred and forty eight dollars where it says a step for configuring the signal generator including program so the notion that programming is part of configuring is replete and the position that they're taking today and let me because i take one step back and this isn't directly your question we're very concerned about this design to construction because it's meant to entirely different things the gloss they put on design to and and pages thirty five to thirty seven ever opening brief we have a long colloquy about this design to below meant some kind of subjective  is that programming has to be part of configuring in order to be configured in the you have to be programmed and and we obviously didn't do that we didn't program  ambiguously said to the patent office that actually configured is what this means that at least one instance of actually programming that's the packing off his own words it wasn't rejected they i think this court is felt i mean it's not without exception but certainly it's fair for us to read that saying it's about this is the passage in which examiners said i don't like what you have here's my suggestion they said no we don't like that suggestion we have an alternative how do we make and then it was rejected again by the examiner and then they didn't push back on that you're right there were two steps your honor but the nd time examiner said no no i need actual programming to allow this claim unambiguous that programming is a subset of configuring and therefore if your configured your program that's also the language of the precedent we cited intelligence cited edwards and format and others that that just makes sense that either either we're sending it to the customer as program or we're not and if we're not you know they have other as well so in this is perhaps a little bit indirect and i'm not sure the part is cited the core wireless case it's also configured to operate in here too and it's configured to operate in pure three and i think the opinion says explicitly if the claim is configured to operate in gear one it doesn't matter that it can also be operated in the other way and it's configured that way even before the driver pushes it into the correct place why is this you know i think i recognize that your honor and this is somewhat an exercise in line drawing right because out and finishing kind of hovers over all of this and it's and it's when we sell a device that that a commercial user can't take and put that in the claimed rank and they say and they infringement they they argue that kind of device until a month before the summary judgment hearing when they realize they were on the edge between so one correctness of one of two an infringement they were arguing that was in frenching under their definition of design to where literally we were going to put a screen that blocked out the commercial users from going into nd year or rd year th year so that's why we're we're kind of angels on the head of a pin your honor and i apologize but there's a back story to what was accused for the past you this study that never did and it gives the the three dollars to ten dollars killer hurts in particular cases it tells me where to place the leads it gives you the killer it to parents the use of free outcome yes your honor so if you go to column nine the patent makes clear that the the patients all preferred every one of the tested patients preferred to presently disclose the standards so they that implicitly suggest they receive paris for paris these are free therapy and we know they did because from the extrinsic evidence because this is the study that was that the f t c monitored and makes clear that this was about the program or were in the program or is configured to transmit and effectively to signal the examiner agreed that a programmer was so configured even if the user didn't select both signals so if your car hypothetical is like it allows st and nd gear and it would still be configured to do that even though only nd here is chosen that's complete consistent is if it's a