structure disclosed in the specification of the patent was deemed to be non infringing on summary judgment accordingly this case presents a unique situation where parents ask this panel to revisit the court's player prior play for instruction to find that any disclaimer that occurred occurred when the claims were amended with regard to the sheets reference entire oscillator was limited by amendment to overcome the sheets reference as reflected a x twenty one twenty six with regard to the make our reference that claim was amended to add additional elements to overcome the make our reference and that can be seen by comparing issued claim with claim seventy three x are we debating what the claim construction is right now yeah ok the claim construction that we already issued a couple years ago correct ok don't we need to get over some hurdles first before we revisit whether or not it's we should even be entertaining this kind of argument that we do have to get over someone else we do have to show that there is clear air in order for the court to revisit them under the law the case doctrine  clear and that is a pounds position clear and it's even if you're correct about what you just said is it possible during prosecution history that in light of prior art that brought to light  so that's i think that's the issue with regard to the sheets reference the patentee face a single clock reference that was a v c o that was off chip and a c p u on a separate chip and that was amended the way that that reference was over commas by amendment when the patentee added to the claim specific language to overcome that reference and in particular the patent he ended that added that it was on a single integrated circuit construct of electronic devices and that the fabrication or operational parameters associate with the innovative integrated circuit stops tree so specific amendments were made to overcome that particular limitation so certainly statements can be made that are broader i mean although we advocate in our brief certainly to preserve the issue that in fact prosecution history shouldn't be that broad in accord with supreme court precedents and i understand that this pan bound by the precedent of this court but we do wish to preserve that issue and we think this case as an example or a case where you have a situation where statements were made the statements or not relied on by the examiner what was relied on was the dependent limitation which relate to another embodiment in the specification then you can have the claim so that the entire oscillator limitation was issued as written when additional limitations were added claim and so it is our position that the court should revisit those limitations but even still the prosecution history is instructive when we consider what happened in the summary judgment proceedings and in that case even if the the disclaimers are applied in this case then we believe that there are still disputed questions of fact that preclude a summary judgment here what we have in this case is the exact structure that is disclosed in the specification in the defendant's accused products is a ring oscillator comprised of an odd number of versions or the output of the ring oscillator is connected to the exactly that structure in their product in addition to that we have an apparatus claim it's an apparatus claim that is a microprocessor system comprising a c p u and entire oscillator on the same substrate an normal circumstances are regulated from feel all right and in the in the addition of structure additional structure does not mean that the actual apparatus is not present in the accused device as clean because the other aspect of the apparatus as claimed is that it doesn't actually require any variation in operational parameters if you read the actual language of claim six in the entire oscillator and this was i think it was in  or opposition brief they highlighted an aspect of the claim on page five of their brief and they left off a really important portion of the claim which says thus varying the processing frequency of said first electronic devices ality of electronic devices in the same way as a function of a poor amateur variation in one or more fabrication or operational parameters so this is an apparatus claim that requires only variation in one or more fabrication or operational parameters so even if i accept that the p l l limits the operation of the cla the claim itself only requires a variation in one fabrication parameter and when the entire oscillator is fabricated on the same substrate as the c p u that claim limitation is met and the entire so as it turns and we turn to the evidence that was actually presented with regard to summary judgment assuming that the court does not revisit the disclaimers as the court has already appellant's themselves that invited the opening of the claim constructions in this case they've introduced into evidence in the context of the disclaimer something the words are in the disclaimers themselves appear nowhere in the cla and appear nowhere in the specification so when it came to summary judgment a pelleas put into the record an expert declaration that gave claim to the structure of the term command input they relied on dictionary definitions they relied on expert testimony and they relied on patents one of which posted these actual patents that come up with this claim construction of command input that allowed the district court to reach its decision that claim construction command input is essentially any input that influences the triggers the device to operate so in the in the in the plane construction that was actually adopted by the district court which is a further modification suggests would not meet the limitation of sheep you write your arguments in your brain and i know that you recognize that that would have to await in bank action a prosecution disclaimer should not be able to occur by you think that magic words should have to be employed in order for a statement to count as a disclaimer it is our position that only an amendment is what is written which should be a point just out of curiosity do you know how many decades it where we've treated men and argument as creating a stoppers or disclaimer in addition to amendment i do how many i believe it has been well i know that the first case i believe was in the ninety's and then i many many millions and millions of short happens for every one of those patents would have been issued with the understanding that you could create disclaimers because it was the clear and unequivocal law you can create disclaimers and thereby modify your claims go through and through argument as well as amendment today one of the arguments you've brought to us and you intend to bring to our in thank court is that we should disrupt those extraordinarily settled expectations and that any every one of the many millions of patents that were issue with the understanding that arguments made could create a limitation on the scope of those claims would now be uncertain as to what their scope is because those were arguments not amendments and all competitors who would have made business decisions based on those arguments would now be i don't know and i probably shouldn't say the word screwed but really in a bad way i respectfully submit that i have never seen a case and i have not read all of these opinions on prosecution is first awful where there's ever been any evidence that a competitor has actually relied on it until an allegation up in france might have but but that's just it right if you make a clear statement of disclaimer in your prosecution mystery and every competitor can rely on it and th sometimes they get brought if it's a that the company kind of case either way even if it's a dog of a case against sure but so for the most part the cases that you actually see written in pinions on are generally close circuses because you know companies aren't dumb they don't spend tons and tons of money litigating things that they can see clearly they're not going to prevail on but you're asking us i mean i can't imagine a story decisis playing a bigger role than it does in what you're asking us to do because you are truly asking us to upset the settled expectations of the entire lawyer asking us to change which is a rule of law that all businesses have relied on to interpret all patents in existence and if there had been evidence in any case where a i've never seen a case where a company actually cited we relied on the prosecution history even in the context of litigation post litigation and so after there's an accusation of infringement but i agree that these are close cases and and that's another reason why here this is going whereas all the more troublesome because we  something completely else and say don't don't worry about what i told the government agency and i mean i understand that because the supreme court says that the claims to find the means and bound and scope of the patent claim that's right and  we and then we have to figure out what does the claim terms mean and now we have the patent owner himself explaining what the scope and meaning of that claim terms are when he comes forward and expresses a specific conception of what those claim terms mean sure and so then why would it be that we would last a patent owners choice to forego term that's what i don't understand sure i don't actually think that's what's occurring here i mean what happened here was i'm trying to understand your your theory for why it's wrong to have prosecution disclaim prosecution history disclaimer in understanding scope and my position is that the only in the context of disclaimer the claim scope was given up when the claim was amended initially when the claim did not make clear that the entire oscillator and the c p u were on the same substrate and so the claim was amended to tie those two things together and to make them vary with regard to operational or are fabrication parameters those limitations were added there's a plane to make that happen so i don't think there are inconsistent statements that are made but we're talking about prosecution so i believe that the prosecution history can be used to interpret the claims and as long as in accordance with with with markman it doesn't vary diminish or otherwise change the scope it is completely fair game that is not my position my position is when you're talking about surrendering claimed scope that the way to surrender claims scope is through amendment and that is exactly what happened in this case ok we will restore two minutes  decisis law the case and so i won't repeat that that's in our brief but there's another hurdle that appellant needs to get over here that's waiver and in this case this court has already said the claim construction appellant cites in the reply brief harris case for the proposition that you can revisit claim construction in a second appeal but that rule is often nurul what harris says is that if the same concept is being addressed in the second appeal you can do this the concept here is quite different and harris there was a situation where there was a two step construction that was being advocated and the only difference between the first argument the second argument was whether it happened in the structure of the function and in that case this court found that the difference in argument was and then applied that to the facts of the case to argue that there was no disclaimer now they're not taking issue with the facts they're saying that your was wrong and should be reversed that's not the same concept that's a very different concept so there has been a waiver here since this argument was not raised before with respect to the balance of the arguments the the core of what appellant says in the reply brief and we heard it three times today during oral argument is that the oscillator that's described in the patent in the the ceo's and the cues products are the same if you look at the reply brief it winds its way through almost every argument they make and is the premise of every argument they mak today you heard that that was the premise of their clear error argument for the law the cleese doctrine and they also pin that as being the basis that even if the current claim construction survives the premise of their  not infringement argument and their infringement argument but the problem with that is that an rebutted evidence shows that their position is wrong and just as a reminder their argument is that the queues v c o is only have one voltage input and they say well guess what there's only one voltage input in the ring oscillator that's described in the patent and both of those they said they are the operating voltage and so they are the same so how could it be that they don't fringe that's just attorney argument because all of the evidence o here and then he went on to say and i'm quoting him this is at the same location the existence of the operating voltage input is so commonly understood that it is often not shown in logic circuit diagrams three six patent doesn't show a voltage input of any kind including the operating voltage which underscores dr server minions undisputed testimony that such inputs are not shown what is shown in both the representative diagram that the parties have used the lawyer written diagram that's and each of the three briefs in this case it shows the voltage control it's labeled the p l l control signal left the voltage control and then they also point e can be switched between the piano and brown thanks thank you ron i wanted to address that next and i just lead right into that by saying there is not one site not one site by an expert a fact witness or anyone in the seven roughly the five pages that they dress of this difference of the one input vs the two at page seven through twelve are the brief that supports their arguments enter totally into an attorney argument which turns exactly to your question because what they go with next on page twelve and thirteen is another argument and by the way i think i failed to mention this but that one input vs two input argument that argument is wait it wasn't made before the district court either in the papers or oral argument or even in their initial brief here same thing is true the argument that you just raised around her page twelve and thirteen they argue that in certain circumstances the v c o of accused products is not connected to the rest of the p l o that argument was not made in the district court either in the papers for or argument nor was it any expert and so what we have here is they have attorney argument based on a figure based upon the lack of evidence and now in candor your honor there is no evidence on this issue what happened is you may recall this case first initiated in the i c many years ago this patent was asserted three sets of council would go for appellant made this argument in the i t c and that argument was rejected because there is undisputed evidence that when you look at that particular configuration claim itself not requires that said i'm quote i'm sorry i'm quoting from column to claim six lines twenty two twenty two it's at said also later clocking said central processing unit with a clock rate so what has to happen for this and the undisputed evidence with respect and it's been briefed by both parties too as to whether it applies the magyar reference requires that the clock the c p u not be fixed by a fixed signal coming from the press the clock and hear what we have undisputed evidence is that the record signal that comes from the crystal is is turned into or the ultimate control signal that that governs the oscillator is always one hundred percent of the time  that that think signal is being governed by the reference signal and the flip side of that is the claim requires instead that the frequency that's output to the c p u be variable by p v t and that never happens so there are facts for this judge for this court if it needed to to up hold the judgement based upon the  there there are other savior to get out if you are but the fact of the matter is that there was no evidence in the court below that any of this alleged fabrication issues resulted in different frequencies that were output to the c p u and in fact d testing would have shown any such variation but there wasn't and we saw a doctor several meanings testing variation showed that the variation issued from zero i'm sorry point zero zero zero zero zero eight seven two point zero zero zero six four and that is as compared to point zero one which is the variation that you see with the crystal at the time of the invention so if there had been some kind of fabrication variation which they've never pointed to any evidence of it would have been picked up by doctors of armenians testing but we never saw that so there's no evidence to overturn the summary judgment ruling on think is logically applied to what the variation of a crystal would permit at the time of the patent because that's the parties are talking about a fixed frequency what is a fixed frequency during prosecution the outlook and talked about the fact that a crystal would have variation even under p v t that's appendix two and one three it acknowledges it would merit very minimally even under p v t so dr subramanian said that at that time the variation that would be fixed is zero point zero one now more modern crystals you can see somewhat even less variation there they're better than the old crystals and that's in the papers too i don't have the cite for that right now but d addressed that as well and that's that's the difference but from our perspective what fixed means in the patent house to refer to what fixed meant to the parties at the time of that would cation now with respect to the point that council made in terms of command input counsel suggested that the district court had somehow adopted a definition of command input that's not in you can't find it in the district courts order  found that that was that was the command and put the district also found that there was a second command of which is the control voltage that's what councils focused on but dr subramanian all he did there was point to the fact that there were two patents in the field of inquiry here that equated a command input with a control voltage and he happened to point to the dictionaries are supporting that but he never suggested that an operating fabrication issue judge chen asked a question about it and it's just now been stated that there was no evidence in the record about that but this evidence was presented to the district court and it was rejected and it's footnote one at a five and the evidence was in our expert declaration pages six five three eight and six five four three through four four of the appendix and so there is evidence  declaration testimony about the fabrication parameter let alone is enough now i heard this this argument right now about you can't tell a variation a fabrication parameter because of this testing a variation of fabrication parameter means that both the c p u and the oscillator are fabricated on the same way for and so they vary in the same fabrication parameter there is evidence in the record of that i decided it and that is enough out correct i don't disagree with that what i was going to say though is what the claim means in terms of fabrication parameter that is that if the two devices are produced on the same chip they have the same capabilities so that if you don't