view of the accused product that's not correct any use of disclaimer must be based on the actual statements made to the patent office not the accused products vita next vs basic old in a case on all fours with this case involve the same problem this course concluded that it was error for the district court to ignore the actual distinction made by the patentee and was ever for the district court to have to apply a disclaimer that expands the scope of disclaimer beyond the plants among other things he said in testimony from ubisoft game designers who quitted the games markers i'm sorry i don't think that anything ok see twenty and twenty one where the factual findings were made by the district court and then adopted and made the factual findings made by the magistrate judge in this case and then later adopted by the district court  location and the court admitted that while in some sense those markers corresponds to the music the court flips the bird and determine that this is the end flipped the claim construction and determine that the the markers though they correspond to the music are within the scope of this claimant doing so while looking at not the use products from the standpoint of a person or a skill in the art but from the standpoint of the of the district court which is not permitted to similarly the court interpret the williams prior art reference on its own without reference to a person or in stone the art and again that ever and that was a that was error that was committed in the whole corporation vs speech i technologies case and later affirmed in cases afterwards the court must interpret that the prior art through the lens of one of not through its own understand it particularly at this point in the case which is why this is case is very similar to the vita mix case that was decided by this court in there the court determined that with the district court had done was looked at a disclaimer through the lens of its own through its own ending of the huge gains and then applied it not based on statements made the patent office but expanded the scope of  these themes exist in the st place they don't arbitrarily determine where these these markers aren't arbitrarily or randomly selected they're selected to correspond to points in the music and that's exactly what the claims require if to and that's what was cited in our in our expert reports that the fact that ubisoft me disagree with that conclusion is proof positive this is not a summary judgment issue but an issue reserved for the fact finder application of the disclaimer to the undisputed facts this is the focus of princeton's argument on appeal and this is where i will put the district court got it right the question is whether the alleged control marker at a certain time in the song during game play the evidence is also undisputed but the music starts the timer for the markers but the game doesn't care about what the content the  context of the rockets game the does the developer testify that it could be white noise the music simply isn't doing any work everything's appearing according to the timing of the marker this is exactly between the claim construction worker and the summary judgment order and the denser judge at the summary judgment hearing expressly confirmed on the record that he was applying the same claim construction to thirty seconds into a song or the song being played ten percent and they're there because they correspond to the actual music so when this marryat says there's no dispute over how the products work there is no dispute as to how the markers are created but it's the year but there is a dispute between the parties as to whether or not those big markers correspond to time position or location for correspond to music looked at the testimony of human soft engineers and concluded based on the undisputed and unrebutted testimony of ubisoft engineers that they listen to the music and create the beat markers because of the music the listening to the music create the beat markers so that's the factual dispute whether or not the facts that underlie the how those markers get created whether or not there's a dispute between the parties that that may be true we're not disputing the fact that there is that were statements that were made to the patent office in the context of the ubisoft initiated i p r i thought it was initiated in fact by ubisoft france but what was interesting about that about what the difference between the two thousand and seventeen claim construction and then the summary judgment hearing which happened three years later was the disclaimer changed from being focused on what the actual statements made by princeton digital to the patent office to what the accused products do and that's what happened inviting this and that's the error and the responses ms mary  argument that the scope of this claim or didn't change it change it's there is no dispute there was a statement made the patent office but the disclaimer has to be based on what was actually said and what was actually said was was game made its point the game doesn't care what the big marker is is a big marker could be responding to white noise but that's actually not what happens at the b marker corresponds to the music in theory perhaps the marker could be laid down by somebody to in some in some theoretical portion of the creation of the game to be mark or could be laid down arbitrarily but that's and that would fall within the scope of this claimant but that's not what actually happens in the in his gaze the beats which are laid down in the control track correspond to music not time not position not location and finally your honor when the court omitted that word it highlights the fact that the district court summary judgment ruling expanded the scope of the actual statements made the passes just like in the vitamin case the two thousand and seventeen construction we cited in our blueprint the actual colloquy to control is concerns the control track and what has happened in this case is a confusion between the music that is played during the gameplay and the control track that creates that is used to create the graphics in the st place if the good the graphics the graphics do not exist without the control track and the help control track was created because a ubisoft engineer listen to the music