hearing next in appeal fourteen thirty four from two thousand and eight every penny counts versus american express and we also called the council in the related but separate appeal of every penny counts versus first that all appeals fourteen thirty eight from two thousand and eight and the panel has determined to proceed in the following get and i represent the appellant every penny counts i asked to reserve five minutes for a bottle that we just discussed and i request this court to reverse the judgments of the trial court and remand said release and set forth in a breeze today i'll address the key points it support of opposition or rely on a priest for the other arguments the issues presented in these appeals are straightforward and not complex simply stated the claim terms at issue are not construed under governing case authority does we believe that the judgments should be reversed for the following reason the disputed claim terms that were decided by the district court were similar in each of the patents and sue specifically the claim terms were as follows and us patent five six two one six four zero the term was an excess cash payment and u s patent six zero eight six eight two the term was amount of excess cash in claim one and in excess from amounts in the transaction in claim thirty in u six eight seven six nine seven six one seven one the term was any excess in claim one and in excess from amounts in the transaction and claim twenty in us patent seven one seven one three seven zero the term was amount of claim terms as it relates to what the amount of excess or additional mount is being compared with to understand what was the excess in other words what is the baseline for the comparison so that one can determine the excess based on a proper reading of the specification the patents and suit the baseline is clearly price however the defendants misled the district court into construing the word price as used in the specification notably the work price was not a claim term any of the patents and sue the word christ was not used in the specification in any unique way that required further construction there was no file history where the word price was limited in some fashion since it was never part of any of the claims that issue the word christ has a plain meaning that one skill the op would use a dictionary that probably the scope of the word christ was not in dispute thus we respectfully disagree with the district court's decision to construe the word price as used in the specification the most relevant case the present appeals as all parties that present action asserted is zero two micro international limited vs beyond innovation technology we believe that zero two microbe requires a district as i stated the scope of the terms amount of excess cash and additional amount is decided by providing a baseline to which a comparison can be made in the patterns and suit the baseline is clearly the price as provided by the specification the defendants asserted that the word price allegedly needed further construction due to the way in which the accused device operates however there is no authority that supports the position that the way in which accused device operates needs to be construed  off me you seem to be arguing that the methodology commanded by luke you might quote was not borrowed here i don't see how it was not quality where was what was at issue was what was the because you've determined the excess was in relation to price that was disco what is the excess in relation to well how does that violate the holding a book you might know about was fine and then he took the action that i thought your argument was he violated the command  control the wear price because the defendants said the work price was that skip this scope of the work price need it for the construction and that's what he violated will truly it's seems kind of struck me the same you seem to require to rely on had to do with the application of the construction to the human's product or profit but i thought here that with the stipulation as to infringement and therefore we don't need to worry about the application of the construction to the human we only have to worry about the correctness of the construction of i don't understand the relevance of the second case in which you rely either we stipulated to a french or because of the construction that was made by the district court because he had read the arc in the right words wrong and that we need to decide but i don't see how there is any problem of methodology we felt the construction went too far you over was violated by the what you're calling herb or construction i will dispute here well because the defendants were trying to would they kept pushing the district court judge on how their system there to system operates and so the judge then in relying on that construe that the word price when it there was no instruction necessary over construed because he was dealing with the accused device and i was relying on the holding that says you don't have to you should  that i don't agree with that you're on the fact this wilson and several other cases that you're supposed to take the cues device so you can get a general understanding what the dispute is but you're not supposed to then really as the defendants were worried about how we were going to apply against their system the work price of how their system operates so that because of the way the system operates they wanted a construction  word price as a meeting every day is to the courts that the merchandise there was no will be to then say what is the total at the at the point of sale that has nothing to do with the claims and the specification they were construing aware that's not even used in the operates to the to the jury so i can't guarantee you we would just if you go along with us and i say you see if i understand what you or your contention is with respect to this issue price versus access  think i understand would check that the conventional card spent in its try and less conventional card first of all let's try suppose i go to the grocery store and sure enough there's if they're offering the cards for spring break which they don't offer but let's suppose t they in the that they decide the card no charge but you have to put it at least one hundred dollars in fact you have to put exactly hundred dollars one hundred dollars card which they have and they will try jimmy at the register one hundred dollars exactly what's the price of that car this goes back to what we were doing at the district court judge sometimes as it was in your view what would would you think would be the right construction the term price as applied  example the price of the call it would be free and the consumer is the big one hundred dollars onto the cost for future use so the price would be zero and one hundred dollars would be loaded also its  hundred dollars of excess on top no dollars of price because of the way to qualify let me give you different examples are changing a little bit concepts of you go into a store and have a shopping spree for some period of time as much as you can throw into your basket suppose that kids are us has an offer in which you pay a fee that say five hundred dollars and for a shopping spree as much as you can pile into your past what's the price of the card that gives you a right to that five hundred dollars shopping spree i mean really i p five hundred dollars for the car and i get put through as much stuff into my basket presumably i can get more than five hundred dollars into my basket if i really work fast in a half hour period or an hour let's what's the price of the sell it that way they say that caught is five hundred dollars but these cards come the way these cards operate in the defendant's world is you what's the price of the card at when i walk up to the range your hand implied hundred dollars what's the price of the car in your hypothetical if they're caught already has u p c code that says this is five hundred dollars and it's pretty loaded y and ready the account already has five hundred and they're just giving them five hundred you know then under your hypothetical the price would be five hundred even though i can get seven hundred dollars worth of merchandise for the car because of the way they're running their their operation may please the court as to the first issue did the district court somehow over construe the matter in dispute i think the discussion here today proves that the district court did not there was a question presented to the district court with respect to access cash payment and that simple question was in excess of what what's the base long and the district court for question and answer with both counsel tried to understand the different in their proposed constructions and that difference was  police offer was the total amount owed or do at the point of sale judge price and just as in your hypothetical what does it actually take you to pay at the cash register to be able to walk away from that transaction with the quarter how much do you have to pay and we said it's the total amount due at the point of sale and we cited the claim language to support that from all the seven asserted claims the specification and the prosecution history disclaimers what the appellant provided was this instruction this concept of sale price that it doesn't matter what the consumer pays at the point of sale it doesn't matter what the consumer thinks they have to pay to walk away from the transaction it matters from an accounting perspective what an accountant might credit in the back office of that merchant as being the sale price for nothing so we ended up with a discussion of the sale price but that's an interjected term from the appellants proposed construction as a obligation to set a baseline otherwise the jury would then be deciding the baseline and that would be impermissible letting the jury to decide claim scope so we believe the amount of construction was required by the micro and now if we look at the merits of the construction as you say chief judgment shall be either construction is correct we say yes they're correct and we can see that for a variety of places including for example the different claims that ever search for the excess cash payment occurs in the six for zero patent but there are other places in the sixty to patent claim thirty another sort of claim that the appellate can see chip construed in the same way it talks about access from amounts in the transaction that similar language is used in the nine seven one patent claim twenty excess from amounts in the transaction so here we have under philips looking at all the claims the language in the claims themselves we see that we're talking about more money than you need to complete the transaction more money than the total amount of money or were due at the point of sale that's fully supported by the claim language it's fully supported by the exact amount of money then the transactions over and they can walk away they have to make a discretionary choice to pay more for there to be any excess and given that it's a discretionary choice the baseline for determining excess can never be less than the total amount owed or deal with the point of sale the last thing i would mention it is there was a remark that well the defendants in what's called the closed the feed typically five ninety five for one hundred dollars part from the face value of a quarter to one hundred and they were trying to say that product and price is five ninety five and one hundred is the access rights in the addition to other players the specification the prosecution history it also talks about the total amount in the chain's action the flaw is the parties agreed to the construction of what a product is  the price of the product but we have an agreement regarding what the product is and it's nurturing dyce services rentals or other valuables what could be more valuable than money so even under their construction even if they want out the face value of the core from the fee well the fee is a service so bad would be a product but the money on the card is valuable certainly so that's another part of it so it's still even if they try to parse that a little bit it's still the total amount owed or do at the point of sale and the reason i pursued this with this trick were as i knew what would happen if we had a tolerance construction amount greater than the sale price of the product we'd end up with an argument in front of the jury where one side would be saying well sales price means this and another side of the same sales place means something different it's a different baseline to calculate access and to mine morning that contradicts zero to micro because then the jury is deciding what the claims mean what the baseline to determine excess is and i think that's you know appropriate what i would mention in terms of the biotech versus  and the argument there was well gee a calculated the percentage of water from the whole mixture where you parse out certain parts of the mixture and exclude additives when you're calculating the total water mixture and this court found as a matter of clean construction and affirmed the district court's claim construction that you calculate the total water based on the whole mixture so as a matter of claim construction the district court construed the baseline they you calculate water as a percentage of the total mixture and this quarter for what we have here is similar is it a matter of claim construction to construe the baseline for determining excess amount i respectfully submit that it is i respectfully submit that the district court properly addressed the issue to a briefing to details or argument took enough question answered to get the proper what was relieved an hour of the party's dispute and then issued a construction supported by the please the court my name is alan fish and i have the distinct pleasure and honor of representing the collection of gift card companies known as the closed gift card defendants i'd like first to die dead if i quickly if i may the other lead counsel for those companies that are here today questions with respect to the one hundred and five hundred dollars gift card situation in the closed gift card model that we're talking about the answer to your honest question is one hundred dollars is the price that's correct your honor and with respect to the shopping spree  this open issue that has now been closed by the appropriate construction the construction that has been talked about here has been amply and then adequately addressed by the debt gentleman from the open gift card defendant so with that your honour's is addressing his stop alicia that was actually submitted by just one of the close gift card defendants i am not that individual i would be happy to defer to that individual let him speak to your honor on that issue would you  nine one patent contemplated at the record the positive the point of sale into the accounts thus the price could have been zero for the items purchased it was the additional deposit that you just put in you can go up to the point of sale and said want to put one hundred dollars into think the price could run one hundred dollars or where we are again the way the defendant systems operate you go into the store the cards are not active if you went in and actually stole a clothes gift caught off the shelf you would have no value you can walk out and educate back in and said you know i have one hundred dollars face value close give call and give me one hundred dollars worth of merchandise to still would say this quote has no value we haven't loaded it we haven't put money into it and loaded at the point of sale to have it be acted so would have no value only in the hypothetical if it already was preloaded it pretty designated like hypothetically had earlier then it would have a value but all the cards on the shelf as the close cards distribute them if you went to starbucks and saw that holes then just picked up and ran out with it they'd be upset because you're running out with their merchandise quote the cards but they have no value terms here we don't think that's a proper claim construction and to the extent the court believes that o to micro choir's aware from the specification to be construed due to the application of claim to the accused device we asked the court to overrule to micro to state that only the scope of