is on an ip network or another phone network the border own is li concludes that the awami communications server corresponds to the discriminator by one inflating a phrase in the abstract in contradiction to the disclosure the abstract summarizes to improperly moving a program thirty one from a communication terminals into the communications server  in the briefing specification shows for example shows for example with reference to figure thirteen  regarding whether the specifications showed how the discriminator works that the claim itself is very clear as to what the discriminator is doing and it's very clear as to when it's doing it it's this invention has to do with a situation what happens as if you go back to your level which relates to figure thirteen a phone call comes in the internet line one one one two which is in the upper left hand portion of the diagram into a internet server the internet server processes that signal and you see it at the top of figure thirteen it signals coming in at the very top left in fortune and then every arrives at a determination step which is thirteen sixteen where the program determines whether the destination is via internet or phone lines own a local area network called and then it specifies another m put which would be a regular telephone number which predestines it to be a telephone number but they're still in a wame there is there is a determination in figure five step thirteen fifteen what happens is the software looks at the destination phone number and then determines whether or not an internet protocol call which means it will stay in a protocol or it's a another phone network component perform the network discrimination an occasion the way the claim is set right now it doesn't require explicitly that the requires the function to be performed but it doesn't require a particular perform the function why does it matter if the board it was wrong and if program thirty one was not actually part of server twenty as long as it's still a p function that's occurring with the moving program thirty one without an explanation as to how you move that into the communication server doesn't fix anything so it doesn't wait but you just said that the representative claims don't require any particular server or any particular component to actually perform the network discriminator limitation it's just a functional requirement has to be performed and no it doesn't tell you who their side doesn't matter whether the board got rolling in a who is performing there's structure that's required in the claim it's not strictly functional and the structure involves a specific physical and time location where the signals arrive at the discriminator in the screen or happens at a particular converted so this is a call that's coming from an ip pipe it's not like what happens with the wame where you have the communications server processing calls that are coming from an ip pipe which are always sent to a public phone and then the only time a call comes it's a communications are going to army is is when it's when it's going to an ip pipe is when it's coming from a public phone and when it comes from a public phone that's not already ip converted figure five step one twenty five where it's clear within within that figure who army that the the determination that's made by awami happens after before allow the argument was raised below in the in the briefing that the original appeal briefing to the border where where it was emphasized that the the the user with reference to why with reference writers arguments reference to those other references that the the determination didn't meet the timing aspect because the user was in putting the information so that was not occurring after an ip conversion and then what happened was the counsel for bear creek explained that they want to have the same deficiency and remember that the examiner had applied numerous rejections based on numerous references and so there were some shorthand that was use another thing that th their argument was they pointed out in a footnote which is shown in appendix were zero nine four no twenty seven that whenever there was an argument respect to discriminate or there was a it was effectively referring to the entire limitation is enough to preserve your argument on why it was me also doesn't do it no what happened was what i'm saying is that there was a specific reference in discussing awami that stead that  that like white requires the user to discriminate between telephone or internet lines when the user discriminates between telephone and internet lines the timing aspects not that because it occurs before there's been a conversion and i  that it least operate differently than the portions cited below this logic fails because the explicit teachings that the board did rely upon the abstract and the flowchart steps to figure five they are not erased or contradicted  yes so that's a teaching of voice communication control processing this far as the program itself the location of the program is not is not critical to the claim the program thirty one is in a ditch additional teaching of what stated in the abstract that the server in the abstract is a computer a computer runs on software the location of where that program is is is not pertinent to the broader teaching of performing the discrimination function that the abstract clearly says is performed there you can view these as two consistent teachings there are separate clarifying teachings of the same function to the extent that the the program thirty one is described in the specification as being contained within the terminal that does not change the teaching of the abstract in fact it's entirely consistent i understand your argument that the claim require a particular component be the want to perform but are you telling me that i'm not appropriately reading the board's decision on page six when it says program thirty one is part of communication server twenty because i think it comes across pretty clearly there i want to make sure you're answering my question because i don't think that it dooms your case the board mis recognized to the location if the location is not a claim requirement but are you telling me i'm wrong to be even looking at this board opinion as having misunderstood where program thirty one is located i think it could be read either way i think it could be read as implying that program thirty one is in the terminal but i don't think that the board considered that important as far as the broader teaching where what about page six would suggest to me that program thirty one is located in the terminal which is element ten as opposed to in the server which is element yes but what would you what sentence in here since it mentions server twenty multiple times which sentence would you say shows that they as the board viewing this program to be within the terminal but that again i think that's a box trying exercise because i don't think it matters where the where the discriminator function is performed in the claim and i think that the teaching in the abstract is clear and it's clear that that the teaching of of the discrimination function that's performed by the server twenty would be software it wouldn't have to be this particular program thirty one because the abstract statement in teaching stands on its own the conclusion that that the board reached on appendix seven that because the server twenty of awami determines the address of the other party is connected through the land won or the public network three the conclusion was that don't want me teaches the discriminator functionality so i don't believe that the location of the discriminat r as it relates to figure five discredits or undermines that teaching that you were looking at what the broader teaching of the references and with respect to the second point awami is discrimination does happen after the transmitted media is converted to ip address media there creaks argument on this point to the contrary is flawed because it's confusing call request transmitted media with boyce payload data the transmitted media was consistently treated throughout the proceeding below and the related litigation by bear creek before the district court to include converting call request requests specifically into ip address media all of the examiner cited portions of awami pertaining to converting they pertain to converting call requests when they're referring to this claim element the examiner did recognize the difference between boys payload and call requests and this makes sense because the voice payload doesn't exist until until after you've routed the call and begin talking of the transmitted media being request was clear based on the examiner adopting the control construction that bear creek advanced in the litigation which is that the transmitted media pertains to the destination information or the pre payload phase which is the call requests and even as well as air creaks own brief in this case appeal brief it page twenty three  shows the transmitted to be at the stage of a call is the out down telephone number so the argument that bear creaks presenting in its in its reply brief on this point is misleading because the reply brief at page five crops off step one twenty three in figure five in step one twenty three is where the voice can be a communication request is generated and converted to ip address media which happens right before the yes so so the timing with regard to the timing again the the timing occurs where the communication request is generated where that is where the  address media is can the transmitted to the call request is converted to ip address media and if you look at the step one twenty three that was cropped off of their figure figure five presentation in their reply brief at page five it is the generating the voice communication request where that gets put into the packet structure shown in a lot nice figure thirteen that packet structure the sort where on page twenty three and twenty four that's one of a large quote that you say is from the examiner's rejection yes that shows where he addressed it yes you do realize that quotes not from the examiner's rejection it's from your yes and that's a mistake in the record  an enormous mistake because you're alleging to this court that the examiner and the board addressed this issue and the only citation you have which you claim to be the examiner statement in the record is in fact a quote from your brief below not a quote from any office action and we went through every office action even though you only gave us excerpts we dug into this entirely and there is no office action that i can find one examiner said anything like this it's at appendix over four fo which is at page forty four of that office action and nowhere appendix page yes four four nine yes at the bottom of the page it says claims one that is twelve and fourteen dash twenty two are rejected under thirty five you see section one of three as being  apologize then but i still think that you have an obligation to make this a lot clearer to the court because some cite me and claim the examiner rejected it and included a quote and you say that quote is from his rejection and  appendix which is only your brief and it didn't look to me like the examiner had done that and we we searched all of the references for this quote of course couldn't find it but you're absolutely right that he incorporated by reference your petition request which by the way is is really weird i don't know if you and you ever see i've never seen an examiner in court because he incorporates my reference your request but what does that mean and does that mean he's making fact findings completely in line with the things you advocate about it certainly leaves me a bit confused i think that in this case the examiner had quoted portions of the of the text later on as being incorporated from the original claim chart which was at exhibit b b and that's how that how that occurred and it's forrest the specifics of where this argument was also contain i think there are other portions in the record on page twenty four of our brief that honor i don't even know what to make about that but i would definitely urge you and i mean i don't know if you're right that should be read as the examiner makes in effect finding consistent with what you say there he's incorporating reference your arguments i don't know if that means he's incorporating them  as these are an explanation of your arguments or if he's in stopping them incorporating a document by reference is different from adopting the arguments made in that reference and making fact findings accordingly i don't know what to make of it you've certainly done a better job of  fusing my unhappiness with your reference by pointing to this but in the future you've got to walk the court through this i mean you cited a portion of your own brief and said this was a statement made by the examiner in rejection honor it gets one step removed at best for you it's one step removed i'm not sure i actually agree with you that this incorporation by reference means that he was making  examiner do this i don't know yes yes your honor in reexamination practice that's fairly common in large resume a nation of quest work where you know you have a right of appeal notice for example that's over one hundred pages long  the what's clear if i buy the board emphasizing the communications server and its corresponding to the claimed nation is that the board is trying to address the timing aspect s of the claim but neither the examiner nor the board specifically shows something that addresses that timing aspect there is there's no if you look at the communication requests that communication request is not and step one twenty three that my brother pointed out does not involve an ip address saying you cannot ip address to go somewhere and for the know the address and that occurs at one twenty five which is a later st there's no evidence that the patent office has pointed to two to establish that a communication request has the proper timing in fact the communication request one twenty six as shown in fig five occurs after the determination of what kind of path you are going over in two thousand and eleven create file this lawsuit against some of the defendants in some related litigation in september two thousand and twelve of this reexam hundred pages for the action closing prosecution were issued by the examiner now or six years after the original lawsuit and almost five years after the rig's am what's important about this  in course for a phone call before you know where you're going and that course is over an ip connection so basically it allows you to put an internet connection at the premises and that gets you to the carrier that result of a significant paradigm shift in technology that timing is exactly the opposite of the prior exactly the opposite of it wami which determines the route before it goes the call doesn't go anywhere it's communication terminal there's a determination as to where it's going to go and if it's going to go to us to another communication terminal it goes after that germination of this going to go to an outside phone it goes after that determination of modern landlines follow this approach which be creek invented in the ninety's while i was making and selling software to the bell companies and to bell labs it still makes and sells software that it provides to bell canada today the advantages of having the internet