first case a scepter noone is united access versus earth link mr bragg alone the court would like to suggest to both parties that we'd prefer to deal with the cross appeal in the main body of the argument so try to keep in mind that we'd like to have a standard format of eleven fifteen and four and if  if that doesn't if you just absolutely need to say something in rebuttal at some point we would give you a minute if it's absolutely necessary but let's try to make it unnecessary for me mr brag construction issues and i understand how the telephone device jury i cannot see how the other three claim construction issues affect the jury perjury that is the the telephone exchange telephone wiring network in signal interface how did how does the outcome of those three claim construction issues have any bearing on what the jury did certainly wrong or the simple answer to that is that the jury didn't have an opportunity to fear the infringement case there related to the central office implementation of the invention because the court granted summary judgment and excluded that entire am i correct that those three claim construction issues did not affect the jury burke who you are i don't think that's correct because we don't know how the jury would have reacted to the correct claim construction the presentation  evidence was absolutely effected what was there was their argument that there was not an infringement because these three limitations were not satisfied your honor essentially there was very little non infringement argument by the defendant was the at all there wasn't any argument on infringement based on those claim constructions that there was a general argument you want to enclosing the defendants referred to a list of elements that the pla argued that they had shown and they said you can check them the opposite way that we haven't shown these elements so there was or you might relate to that there was no evidence presented related to that could you didn't make any argument that  any of these three elements that are the subject of the three claim construction issues would have made a difference in the outcome were we were not satisfied begin you are we and the fact that you couldn't argue as to some systems before the jury because of partial summing judgement it's correct that these three claim constructions were not the basis for the jury's not infringement on the court did not deny course the j and the well based upon any of the claim construction issues there is one other area where it did affect it when the court later construed telephone wiring network and construed it we had to argue that that a more limited construction of telephone wire network because of the court's prior construction of signal interface so we were boxed in doing more limited construction of the telephone wiring network when looking at the term signal interface it doesn't have according to the experts in this trial and elsewhere any common meaning so you kind of have to go to the spec and pull out the specificities of its definition from that source don't you i disagree or are because for example there were really was no dispute among the parties as to what the signal interface was the real dispute was where is it located but  wiring network the court adopted the construction you post on that was after all the graft of summary judgment your honor that was after the initial claim construction then in the subsequent claim construction we proposed a more limited definition at that point in the fact we do with tack that on appeal today we ask or the original construction we did so that now in fact the claim construction issues did alter the presentation of evidence and the but if i may finish my answer to your chief judge raters question claim one of the five it five patent expressly states quote that the signal interface is located on the telephone wiring that work between the telephone exchange and each of the residences so when the claim language itself the patent he took the trouble to actually state exactly the range where the signal interface w even addressing that claim language but then the specification goes on to say in some detail that you can't have the interface on the public side or you'll have the high frequencies interfering with the and that's against federal regulations and the federal regulations actually prevent or prohibit transmitting the high frequencies onto the telephone exchange they do not prevent transmitting hi frequencies on to the public truck that was the error in the confusion of the district court the district court to limit the signal interplays to be only on the local side of the public truck so treated the public trunk which isn't even mentioned in the claims as if it were the telephone exchange with is clearly not the the problem i have is if i'm reading this as one of skill in the art i'm going not because you would start of course as we do with the claim language and the claim language gives you the range where you can put that then you look at the specification and the first thing you have to note is that the high frequency signals do not travel onto the telephone exchange but the error of the district court is the district court added this public limitation and said it is a signal gets on the public trunk isn't there a risk it's going to go to the telephone cha no you are that's the purpose of the patent if the signal to interface is on the opposite side of the public then it performs its job and it filters the high frequency signals and prevents them from going into the telephone exchange multiple local networks meet the public interface isn't that pretty clear language in your honor that is one recommended solution the patentee actually broadly claimed  and then provided numerous solutions in fact he refers to it as one recommended solution oddly the district court never focused on the fact that it was a recommended solution the one that is used with a copper wire example i'm reading math up just a line or two from that to line sixty two and it starts not by saying this is a recommended solution it says the president invention provides et but know that as described as the president mentioned not an embodiment well the present invention does prevent the signals from going onto the public exchange but it doesn't it doesn't say anything about whether it can be on this side or the public side of the public trunk the public trunk is really irrelevant in terms of where the signal interface is located that was the error that the district court made as it seemed to equate public trunk with the telephone exchange in in addition to the the error also that was made was that the district court construed s that is actually discussed in the specification until the only limitation that was ever discussed was that it be a telephone exchange not that it be the public telephone exchange it could be a private branch exchange such as the p b s is it your position even if the specification discloses a suggested location for the signal interface that that doesn't necessarily reflect what was set forth in the claims that that perhaps you just didn't claim that as a feature of the claimed invention  i would answer your question first to say yes i believe your position is that the claim is broader than the record solution the first recommended solution there are two other solution how is that consistent with the prosecution history yes absolutely the prosecution history distinguishes some of the prior are based on the fact that it did not prevent it either didn't use the telephone exchange element at all or it didn't prevent high frequency signals from going on to the telephone exchange nothing was said about the public trial that was just something that the district court at similarly there's  district court had a requirement that there be a point of convergence and there was an example in the specification of fiber optics and the patent he actually says another implementation would be the fiber optic land well the volunteer reps with tell me what the valente reference for example doesn't disclose any sort of distribution of the filters only shows a filter there that may in fact  agreed that it disclosed all the elements of the system but that's not the question of questions whether your expert agree that the combination disclosed this political system i don't believe so you are not in the sense that it the question was the diagram reflects at least one instance where the telephone wiring is split and there is a low pass in front of the telephone and he says the diagram does depict that but you are right don't believe what appears to be a filter there but it could also be a splitter there is no statement that it's a filter versus a splitter so there's a lot of assumptions that have to go into that before you could fall in a case of mr good day an extra three minutes if you need to use thank you in may please the court met go day here on behalf of earth link i want to begin with the line of questioning th judge i just posed because there is an additional citation on the record that while i believe the one that you referenced judge certainly does provide an admission from mr beckman who dr backman who is the plaintiff's expert there is another one that's even clear that is at a one seven one two nine specifically beginning on page twenty nine line five and going to page thirty at line two and the question was put  volunteer references when read together disclose every element of claim sixty one of the five hundred six patent and he said i believe they mention every element now for to a jury saying they mention would be enough but it even got better because he was then impeached with his deposition testimony which is the next part of that citation the last line of which says that would disclose every element now the only difference four for sex and the five eight five patterns have an additional telephoto and so the question was if you got the whole system down but lo and behold instead of having one telephone in the home there is a second telephone what does of one of ordinary skill is it disclosed to put a filter there as well and the record on that respectfully was overwhelming it was disclosed specifically in the belt for reference and that was testimony from a third party witness name mr williams who had done a voice over data prior art system that had this same split was configuration namely data comes into the home  voice in a frequency above the voice band it's been distributed throughout the telephone wires in the home and you place a low pass filter in front of every telephone in the high pass filter in front of the modem that's all in the record mr waring was asked to me like we're getting confused over the difference between the five ninety six patents claim sixty one and the other claims there seems to be that a difference there that the difference may be that if it's only an additional telephone right correct your honor the only difference is an extra telephone and there was ample trial evidence that one of skill in the art and at the time of the invention would have known that if there is an additional telephone you put the filter in front of that additional telephone as well are you making again and disappear argument or and obviousness argument throughout see only reference to each and every element in anticipation i don't see you making efforts to show how one of skill in the art could bridge the gap between any missing elements reference in addition to the volunteer reference and knowledge of skill and let me direct you to a specific site to answer your question your honor  mr waring testified on this point about whether or not it would have been obvious to you to place the low pass filter on the additional telephone at a  one six seven o nine and he specifically said someone of skill in new york would understand that you have to do that for example the system that mr williams i guess the question i'm asking is you appealed on what mr waring did again at a one six seven zero nine the next point i'd like to address if there are no other questions on on obvious the first question of whether or not in the event that whether a change in claim constructions would impact the outcome here on infringement and we certainly agree that changing signal interface or telephone exchange would have no impact on the jury verdict because those were not issues that were that that were that were contested were part of the the the affirmative the verdict by the or the standing of the verdict by the district court but there is i want to take that you did not or your so you didn't are you before the jury that there was non infringement of the systems that were before the jury because of the pro to satisfy any of these three claim limitations that is true with respect to telephone exchange and signal interface with respect to the telephone wiring network i'm pausing there for this reason telephone devices that's only relevant in so far is that is one way in which telephone devices become a substantive element of the claim but quite frankly that's that's almost the hardest way that the term telephone devices is an element in the body that everyone is going to do did you or you for a non infringement verdict based on the construction of telephone wiring network  at trial your honor in the closing yes in the closing argument there was an argument that that i believe i believe in the closing argument there was  band and in a remote terminal to central office configuration they actually travel above the voice and i just don't recall whether or not that was linked to the telephone wire network so i would need to check the record on that your honor but how do you get around the broad claim language on signal interface in this location where we have a location in notre in the claim language and it's there and it's broad your honor the claim language only defines location these are the other claim elements defining a system simply describing what goes where in the system but the fundamental problem is that signal interface has no plain meaning doesn't doesn't mean anything and i very much  you know that it can be anywhere between the wiring network can be external source of information right the signal interface can be at a point of convergence on the local side of the public telephone network the telephone trunk line which is why is it limited to that particular location your honor and this is this is of course the classic question of when you or are importing a limitation vs vs simply absolutely this is in this instance it on at least at least two instances refers to the location as part of the invention now there were several references it to being one recommended solution and i very much encourage you to look at the language where he wrote the patent talks about one recommended solution when the patent was talking about alternative embodiments and one recommended solutions it knew how to do it that had nothing to do with the location of the signal interface that comes up at five lines four to fifteen and what it says is that given that the signal interface essentially is look at a point of convergence ordinarily which you would do is just put kind of like a normal cable television system you would put all the television channels from that point going forward into the residences and users can just click the button and decide what they want to watch well because of the limited bandwidth issue it said the problem is you're not going to get that many channels into each of these houses of the system one recommended solution is to put flicker essentially the selection device up at the signal interface that was the context of when there are options and one recommended solution that had nothing to do with the basic question of where is the signal interface in the first place there is no language that ever suggests that's optional that's merely a recommendation or anything else the other point i want to address is with respect to the federal regulations  i believe that there was a statement made by the appellant and the argument that the federal regulations were merely talking about keeping signals off of the telephone exchange and again i would simply ask that you read the specification that's just not what it's the specification at column forty eight this is lines forty three to forty seven says part sixty eight of the f c c regulations in the us for example severely limits the energy they can be conducted onto the public network by signals above waistband and below six megahertz it's not the telephone exchange it's the public network and the pattern is already defined these points of convergence as the boundary point between the local line and an ordinary poll front line i e the public telephone network why isn't this analogous to a situation where an applicant describes the invention as consisting of elements a b and c and then attaches a number of claims claim one a and b claim to be claim three a b and c why isn't that the case here where the signal interface is claimed but not necessarily the location of the signal interface iran or the  that way the language that this patente chose to use only only references something that is defined as as as a as being located at a specific place as it is as if place at a point of convergence that is on the local side and it makes the entire invention explains that that's the entire function you don't think the patent to use intitled to the full breath of the words signal interface you of the problem is that there is no full breath of the word signal interface it doesn't have a meaning to the words the word signal has a meaning in the world the word interface has a meaning but they mean nothing together and the declaration that we put in in the district court which is  nine four six says exactly that it says that it's from someone's skill in the art saying two engineers could not have a conversation with each other and use the phrase signal interface and know what the other met unless they further defined there are no dictionaries t treatises that tell us what that word means and so by definition there is no full scope of that term maybe it may be a definition of what a signal interface is just require to understand what that what that me in sport that doesn't necessarily impose upon the definition of a location for it to us your honor if that was the end of the inquiry i agree that the mere fact that  something doesn't have a a a known definition doesn't mean that it would have to have a location but it does mean you have to go to the specification to understand it and when you go to the specification it references points of convergence four times in the first paragraph it references the invention as being located at the at the local side of that of that ballenger line of the public network on multiple occasions and under that circumstance when you turn to  the result is that this this term has to have a location in your if i can make another point here about signal interface which is  i think we are in agreement that signal interface would not impact the trial the result of the trial signal interface and telephone exchange also would not have impact it it wouldn't impact that other system either in the c e o based system and the reason is the only differences between a remote terminal and a central office based system are that the diesel in one of them is at the central office and the and the other it's  closer it's closer to the user at a remote terminal for example earth link doesn't even know which of its users are being serviced by which system everything else is completely identical if it were the case would would have been able to prove infringement based on central office systems but for that construction they would have won the trial as to remote terminal systems the only thing the only difference the only thing that kept the systems from being in the case was that one single issue that one single issue did exist for remote terminals so by definition whatever it was that caused them to lose remote terminals would cause them to lose central offices as well and so whatever happens on the  a standard a d s l system and bell koren valente disclose the standard system you know point showed that you your system was actually practicing everything in the prior arc skipping you some kind of a passage then there were there wasn't a direct obviousness analysis ever made you kind of did a circuitous analysis waring testified specifically that the book the bell core reference discloses all of the elements of the industry standard d s l system that mr jett that dr jackson had just walked through and that it is at if you got where have you shown me in the record where you are you quit your system to prior art it's specifically your honor not standards which are then discussed as being part of your honor let me let me back up there was an agreement in the record that our system was industry standard e s l dr jackson's testimony was only about industry standards there was no testimony about the earth link system versus some other system so everyone in the case agreed from the outset and that's how it was presented and we can we can provide that this isn't an argument did you ever compare the two systems using the asserted claims claim element one you find here in our system you find it here in the standard you find it here in the prior art claim element to you find it in our system here you find it in the standard there and you find it in the prior art right on down through showing near in there in the record that we did not do and that's why the district court took the obviousness furthest away from us  your honor and perhaps he was justified in doing so right your honor that this came after dr jackson had done exactly that he spent a day with lame charts doing exactly that analysis and what we then did was have our expert say with respect to all of the things you're accusing here that is identical to what shown in the bill for reference and the reference and he testified point blank it's all there and he also brought in the williams reference now with respect anticipation versus obviousness there bragg alone you have three minutes first i want to point that you are the chief judge made that the examination in particular actually only related to one patent that the court pointed out at the record a one seven one two nine that was only the five nine six only there was never any discussion as to whether all elements of any of the patent covered by any reference is that going to give you trouble with claim sixty one though you do seem to prior art and as this court has said that does not relieve a defendant of his burden to prove by clear and convincing evidence each and every element and two to also show that they would be combined that a person of ordinary school only or would understand that i don't see that you argued your brief that they wouldn't be combined in the district court so they would become stronger however the only evidence and again i'll say this the only evidence that was ever on the any combination was from dr beckman who said the i'm quoting here from page seventeen one four one the information would lead them to no evidence that there was any that any person of ordinary skill nor would have combined needs to come up with the splitter splitter less a d s l system and then the point that was made by counsel with respect to the signal interface that's that was on infringement there was an agreement related to infringement there was no showing by the defendant of each and every element of the test for invalidity that that the