quarter in english representing the plaintiff in the trial of goldenbridge technology or g b to occur start playing destruction and we submit that it was legally impermissible for the district court to read into the preamble limitation the requirement that it be spread before transmission first we submit that the specification and file history are clear that the terms preamble and spreading are separate and distinct terms and limitations secondly we submit that the disclosure on the preamble is brought in and constrain collimate under the heading the preamble significant signal structure that if we work to say you we agree with you on all of that but your problem is that there was a disclaimer there was a disclaimer when you stipulated in the texas action not by virtue of collateral stoppel but by virtue of the fact that you then submitted that stipulation to the patent office repeatedly directed them to the documents we i d s for their consideration and never disavowed the disclaimer never said to them and by the way while we said it meant this we no longer agree with that we submit your honor that the patent office rules are clear rules one dot five six b two and one that night seven age that you cannot construe or you cannot deem to be an admission of materiality simply because something is cited an information disclosure statement to the patent office and therefore you cannot human that's different than a stipulation that was submitted right when the patent office says that they're talking about prior art references by and large you can't be on the hawk for everything a prior art reference in an i d s discloses that would make no sense day five six be two says it cannot be used to refute or take a position inconsistent with the position taken before the office and that's exactly what apple is arguing here if we look at the june two thousand and two office action in the record the claims simply reciting a preamble those claims were amended to distinguish over the prior are those claims i'm sorry the claims are rejected over the prior art they simply restated preamble in response to that rejection the patent to found by one point one point whatever whatever you said i believe i believe we are i believe it i won't rule one got fifty six i believe but also two things where i want to make the figure out how i agree with you your honor but i believe that the i d s mission does have to be viewed in the context of the rules that those emissions are subjected to and i also believe that when you talk about clear disclaimer because something similar in the i d s i believe you have to look at it in context of the entire file history and when we look at them we look at what the patent he argued to the patent office which was that the claims distinguished over the prior art because spreading was added to those claims and then in connection with that amendment and that's that's just that's in the august two thousand and two office action response and in connection with that amendment explicitly argued that the claims now specify spreading that spreading is an express limitation and that's why they distinguish prior art and that that and then in response to that the patent office allowed those claims now we submit that when a person of ordinary skill looks at that prosecution history they're going to necessarily understand that in order for the patentee to obtain the allowance of those and on the basis that the preamble was spread he had to explicitly recites spread it and the word preamble was not enough so it's clear we submit from the prosecution history the preamble does not mean spreading now with respect to what's in this for movement is information disclosure statement that by the way g b t was required to submit under rule one to five six five because it was a reexamination proceed and they were required to submit the litigation record documents and that you know the references to the texas stimulation played absolutely no role in the prosecution of the claims that were allowed it was never referenced by the patently it was never  office so we see that in light of that it's not relevant it can't constitute disclaimer it didn't play any role in the prosecution in the prosecution of the claims well if you're saying that you can make statements in the prosecution history about what your claims mean and with for the courts just can't rely on them if they're not a basis for allowing the claims of what i'm suggesting not suggesting anything quite so right ron right clearly if someone makes a statement that's part of what you would consider to be the prosecution of the claims and makes in connection with the prosecution of the claims but that's not the case here this was simply something referenced in an i d s that didn't play any role in the prosecution of those claims and now is being argued by apple to take a position on the meaning of the claims which we submit is refutes and it's entirely inconsistent with the meaning imparted into those two that claim limitation in the prosecution history in that amendment that was filed in august of two thousand and seven now we we submit that the case that we cited the baxter case is analogous nonpoint is the abbot baxter labs three three four f third twelve seventy four twelve seventy nine and that case this court indicated the mere disclosure of potentially material or material are to the u s p t o does not automatically limit the claimed invention as noted the examiner did not consider the sale relevant and the applicant did not distinguish that that you should find that there are still issues of fact with respect to the preamble with respect to whether the signature sequence is a signal for communicating with the base station here's my problem with that every man for the proceeding which that this issue has been on the table throughout the entire litigation all of the relevant time periods apple was arguing has to be spreadable and you were saying no it doesn't if you believe that there was something in the infringing device that still met the preamble limitation regardless of spreadable or non spreadable you had an obligation to identify that i mean you had to identify what in the accused devices meets the various claim limitations and you always said and you didn't really say signature sequence in fact your expert talked about two codes right being present in the preamble extensively is the craziest case ever seen you're relying on their expert there are lying when you're expert it doesn't make and you know your expert seems quite clearly to be talking about what he believes access preamble puts it in quotes meaning directly from the patent means and so let me let me what i do with that  a page five twenty eight apple in its contention and drug turf sponsor admitted g b t was reading the preamble on the signature sequence itself and if you look at the first full paragraph sequence i get that you have them is this is part of your finger is it your finger well it's not your fingers just part of your finger so they say the red preamble part is this so they're saying this is part of the entry ambuhl yes and first very first sentence they say the g b t has alleged that the preamble in quotes the access preamble in quotes is met by a ratchet prerace preamble part so they acknowledge right at the outset that the preamble limitation is met by the rach preamble part which is the signature sequence that was not in dispute and so i'm sorry your honor i just want to make sure that you got that point i do i have it now ok and what was in dispute here not only did they admit that we were reading the axis preamble on the signature sequence but the only non infringement contention that they made was that they did not infringe they did not infringe because the signature sequence was not spread by the scrambling code ok they never contested that the signature sequence was not a signal for communicating with the base station and if you look at the previous page that's the construction they're applying in they're officially contention so when we go into expert discovery and we prepare expert reports the issue in dispute is whether or not the signature sequence was spread by the scrambling code there was no dispute between the parties as reflected in where is something of yours that affirmatively puts forward the idea that the signature sequence alone can be the preamble i don't believe our infringement contention itself is in the record submit that it's abundantly clear from their contention in toronto jury answer that there was no dispute and that's on page five twenty eight that when we were reading the preamble limitation on the signature sequence itself why can't we look at either consciously or accidentally surgically remove the most important sentence from the entire block quote well what he says quote in the accused vises each access preamble is composed of two spreading codes without message data that's correct your honor the patent uses the term axis preamble to refer to the preamble both before spreading and after spreading it's still the preamble it starts out as a signature sequence then after spreading it's still a preamble and the pattern is clear to that effect i think if we if you have an obligation then come back with all of your arguments as to why you are opposing that grant and you never made this argument you post focused exclusively fuel for better or worse put all your eggs in the spread nonce breadbasket you never said you i mean you what the allegations come forward all your arguments about why they are wrong you never came forward with this argument your allegation well quite frankly your honor this argument wasn't raised by apple a little bit of it you better sit down ok i'll give you some back let's hear from the other side part of the prosecution history on which the courts in the public are entitled to rely and in this case in this case we had multiple statements suppose that we agree with you on spreading ok we find there's a disclaimer there well you only get the disclaimer that they made and that's actually all you asked for was your claim instruction was identical to the stipulation which is great that's what you should have done you said a signal used for communicating with the base station that is spread before transmission the district court unbeknownst to me as to why i gave you a slightly different just for communicating is different than a signal for communicating a signal for communicating it's got to have all the component parts a signal used for command communicating is implying that it's part of what is going to be used to below asked for facilitating of the notion of facilitating to be included in the claim construction and we objected to that and what the district court did by including the word for his make it clear that the district court w rejecting g b t's request that the signal merely be a code that somehow facilitates communication but that can't be based on the disclaimer because they didn't disclaim that she modified the language of those climbers disclaimer goes to spreading what it doesn't go to is this facilitating idea that's clear from the stipulation itself and she modified language so my question is why do you now get that claim to communicate is that required and what the district court was doing there the district court was going back to the patent looking at the patent looking at what it shows if you look at figure four for example you see the preamble is generated and then the multiples now we've already got a fully generated preamble which everyone agrees doesn't include the pilot signal that's not the original the multiplexer then multiplexes the data the preamble and the pilot now the data there is message data right you know we're part of the project that was all this is just the only disclosed embodiment is best as i can tell and what it shows is the preamble is one segment of the signal that an alternate we gets transmitted but it isn't the whole ball of wax in fact when i read this patent i really honestly don't come to the conclusion the preamble is anything other than a signature sequence although not limited to it but it seems to me that's what they're kind of conveying so given this embodiment how can you say unless it was through the disclaimer how can you say that the preamble has to have everything and be a signal ready for transmission so we look at figure six figure six shows us what is transmitted and when your honor is pointing out the packet format or it shows that lots of different things can alternately get transmitted by the base station and that's absolutely correct if we look at for your six we see what is transmitted and when so i look at the left side of   an acknowledgement from the base station so the upper line is the signal from the base station the lower line in the lower part of the picture is the signals from the mobile and what we see here and figure six first we have a preamble sent all by itself that's that's the rectangle there and then there's nothing from the base station that comes back so then in this particular embodiment they also send a pilot but no they send a pilot by itself that's a then they send another preamble that's the rectangle sent all by itself again we don't have all this other information like the ak in the cd in and the pilot they're sent at different times what would be great so are you saying that in order to construe the absolutely correct so if we look at figure four we see the packet format or it's going to take different inputs but but figure six tells us that those different inputs calm at different times so for example at one time you'll have only the preamble coming from four fifty three through the multiplexer to the packet format or again blog then spread then transmitted in the figure six tells how they know that the made in column five has the packet format or adding one all of these extra pieces of data before it is spreading transmitted and they were not part of the preamble right so this is so primal nothing said without the stuff it's all themselves well you send a preamble and figure states by itself and if the text in by the base station the base station will send a later one acknowledgement once that happens then the mobile will send the collision detection which says for example the preamble includes all the header and signal data necessary to communicate with the station there's nothing in the pattern that says so your in tuning from a label on a figure which by the way the very description i pointed to is for that figure and the description seems inconsistent with what you're wanting to derive from the figure and what i'm saying is that the signaling and the t p c information the knowledge of and those things come at different times this is not all simultaneously coming into the packet format or that's what this invention is trying to say it's not doing it very well apparently but that's what it's trying to say so the idea if we see in figure six  yes the preambles by itself the whole point is you don't want to send extraneous information other than what you need to send to connect to the base station i hear you saying that that's the way you think it should be read but it does say the packet is outputted from the packet this i assume your argument completely even your honor if there was a problem with that they have an obligation to break up their argument about signature sequence being a potentially infringing device in opposition to some doesn't mean they didn't do that that's pretty might go if i was convinced that's that's where i might go and that's exactly where i will go so we look at dr to kind of report which was in the record a six thirty one says dr kiasu addresses both g b t's position and apple's position and it's all right here in the appendix and the first thing he says is that to determine whether an access preamble or preamble to spread we the question he says the question is we have to determine whether an access preamble or preamble is spread well we have to first determine what that preamble is and it says we're looking for a signal without message data that is used to establish communication with the base station and then he says under g b t's construction the access signal must be the combination of the signature and the scrambling code so here he saying i've looked at g b t's contentions that's what they say under the combination then he says i've looked at dr voice it's a doctor which is report that's g b t's expert and he says indeed he's based on several occasions of the preamble is the combination of the signature and the scrambling code so he walks through that says they're raising that combination doctor voice which says that he cites in full the part graphs that they cite in part in their in their brief and then he goes through and he further addresses the portion of the that we're defending this case on the grounds that they're accusing the combination and they work using the combination for a couple of reasons one some of the claims require the preamble to be assigned to the base stations and there's no right on the previous previous sentence is what i was referring to on the one hand he said i'm not that's right that's not the one i'm talking about that's not right you're right he actually does he argues this right so sort this out he does but you know i know you don't either and we don't know you said you thought he your present counsel says that it wasn't until your server reply that the summary judgment stage that you brought up this concept of access not being the signature but it was it was the notion that it wasn't you didn't raise it till your server applied that it wasn't your obligation to that they you said no infringement and here's why and isn't it at that point their obligation to point out all the reasons there might be infringement that's really true t o there's no question that we had raised the argument that they do not show the spreading of the p ranch preamble code if we look at two hundred seventy one as well they should come back with we don't have to prove spreading and even if we did there's this other portion that could be interpreted as the preamble and that is before spreading that's correct we need to do that second part of what they did was they put all their eggs in one basket as your honor pointed out and they said it didn't matter because they believe that the claims  relates to the claim limitation that was being discussed in paragraph seventy four and he explains here and he's talking about how the signature sequence is spread by the scrambling code and because the signature sequence is the preamble for spreading preamble signature spread by the preamble scrambling club code he clearly indicates that both of these things are part of the preamble time misunderstanding or so so if we look down i think it's about ten lines from the bottom there's an i v there and he says the blue curves correspond to the power spectrum of the final spread access preamble i'm lost oh i'm sorry i'm on page eight to nine nine  in the figures correspond to the preamble signature power spectrum while the blue curves correspond to the power spectrum of the final spread access preamble is the preamble signature spread by the preamble scrambling code so the thrust of dr blix opinion is that we start out with a signature sequence and that's what he focused on his exhibit say that's the preamble before spreading and he didn't get into that in detail because there was no dispute there were reading the preamble construction where we use the term access signal there was apple's claim construction which was largely adopted by the district cork but for the without message data portion ok and in connection with our claim construction dr  that the signature sequence is not accessible he said the only access signal is the combined signal and so we responded to that and said yes it is an accessor you know if you do the signature sequence isn't access scrambling to whether the access preamble is spread and that's what we focused on your theory was that the general in the generation of the access preamble there is spreading and that's good enough but that was the point that where the district court said now that's not good enough you can't in the generation that claimed access preamble have spread and you have to spread the actual final access preamble itself and that is what's lacking are missing from from the defendant's system  what was clear in our briefing is that we say that the signature sequence is spread to create the final spread access preamble because what the briefing focused on was whether or not the signature sequence