us a disservice by the ewing these claim construction issues not meant to tally of the multimode media device that we disclose but rather in a very piecemeal fashion and they also did so backwards they started with one of the last limitations in the second mode as the very first thing that they reviewed and by doing so it tainted the entire review by the board a more appropriate place to start and where i'd like to start with you today is with the first limitation which is the configuring selectively limitation i think this limitation frames have them  two mode fashion and if we step through some of the prosecution history it allows the court to see that in light of the prosecution history in the specification we're not asking you to read a limitation into this claim we're simply asking you to me the claim in light of the specification embodiments for instance with the way that i pods and phones have remote wireless networking capabilities today you can simply use an i phone or an i pod with an app and that can be your base unit as long as you can gauges and all the operations that are in claim one and it structured is the same way as claimed twenty two it doesn't have to be the preferred embody and that at the time was what we considered a revolutionary product you george so when you look at why some what else is missing here is the question and there was no discussion  context what do you think configuring means configuring was not raised as an explicit term to be construed and so i think that the record is not quite as clear as it could be however do you have any evidence showing that a person of itself which talks about the ways in which the processor is configured to execute these operations and how the device can be programmed and then for the actual act of configuring selectively in a method claim i can point you to the user can select one of the inputs that's one of the ways that can be actually selected which is what i believe initiates the configuring that's com sixteen lines forty eight through fift the description of the processor is a more generic claim of a process server but it has to be programmed as it says and claim twenty two are configured to choose between the first row in a second mode selectively the software executing on a processor this talks about the operation that might be performed in call seven at the top of the column when the processor is getting input from a source such as a remote s in this in the subsequent modes you can't get into the first mode or the second mode unless you've selected a source and if you look at appendix a twenty the office action reply this is discussed explicitly to me after an interview with the examiner the applicant was it was a suggestion from the examiner that the applicant amended the claims to say that the there is a command selectively sent in the second mode to a selected source but the applicant pushed back and said it's not that it's sending it to a selected source it's that the source was previously selected so there's this language on the next page that says the device commands a specific selected media content source does a liver requested content in response to user input at the media device so unless you've made that decision already unless you've selected a source above you can't even be operating in the second mode unless you've selected the local source of the media device itself you can't be operating in the first mode and these claims are all sort of enter related when you look at them and that's why this piecemeal evaluation is not helpful because if you look at the list limitation which is the second argument in the first mode that's an exclusive limitation you're only displaying content which is stored locally on the media device and if you expand that limitation and you try and compass any content that can be stored anywhere you're sensually of this rating what it means to be a multimode media device the board suggested a construction of mode which is a descriptor that identifies different behaviors with the behavior of each mode specified by other claim language and we didn't appeal that construction because that construction isn't inherently wrong as long as the operations of a given mode are exclusive to how you accessed the contents you are saying the list only works only related to the first  yes your honor the list has to be exclusive to the first note and their support for this in the record itself in the prosecution history at age seventy five to eight seventy six they discuss the prior art reference walsh walsh was an older version of a cell phone that couldn't store content on the device so it couldn't display a list and the apple has argued well it didn't even meet the limitation as you stated and of course that's true however when we were describing why it didn't meet that limitation we went on to say that examiner although you've said a database on a server could be part of the list that's displayed the server is not even in fact part of the media device and is thus really the second mode of operation so when we describing our own claims and how they should be interpreted we have a very bifurcated understanding of how these nodes operate and i think this is very similar to the i could see no in that case there was a single merchant limitation in the court found that the single merchant was differentiation applied to their ten claims that we aren't discussing here today if this differentiation statement and prosecution history could apply to the ten or that's using the twelve that we are discussing that this differentiation doesn't apply to are the ones that did impermissibly broaden the scope of claim one and i would point to the record where we have some discussion of how the system works with the examiner i ate twenty there the examiner pushes back on this idea of requesting that content be transmitted instead we're meant to say commands to the selected remote media source are issued by the media device so it's not a request or a push system from the server back down to the media device it's what's called a poll or on demand system as it's described in the specification at three twenty two through twenty five so the intent is the content can be managed locally but you send it to various places around your house and the problem with inferring that you can do it in the way in claim six or having it go back through the media device is a completely eviscerates what the point of this invention is this invention is designed to improve the access and ease of use for managing a large media library if you are as we suggest able to put content in five different rooms of your house but you're running it all through your i pod you're not getting reduce latency you're not getting a better user experience instead you want something where the server pushes it out to five different locations were ten or however many you want and this makes the successful because as in the title says we use the net data and the metadata comes back and forth between the media device and that and the server but no content and i'd like to point you briefly since we're having this patent look at their claims which are on page twenty seven of my briefing and the figure which is on page twenty nine this is exactly what happens in claim one nothing comes back to encode a portable media multi media player and nothing comes back to our media devi invention patent tenants and claim construction tenants which we only use in the absence of record evidence that there's ample record evidence and i believe that they should have to account for why our claims should not be read  thank you good morning me please the court and then i proceed thank you i'd like to start for counsel left off which is in their reference to a co in the argument about co as we point out at page forty one of the red brief this is a new argument that has been made on appeal and was not made before an order and therefore is waived but even if the court wishes to consider it all that reference speaks to is that the claims cover sending  the information directly to a speaker but again that doesn't mean it excludes any indirect transmission and in fact if you look at the d m and the evidence that we presented to the board what is your response to the the question of how the media and deter media device is still in the patent your honor my response is that your honest question was excellent there was somewhat of an answer from chestnut hill that same question was posed to chestnut hill below and the answers keep changing can the media device just i think will device that somehow have the ability to both access local content and remote content i guess the answer is yes according chestnut hill does it become the media device when there is a control that has been docked and does that then become one chestnut hill says yes sometimes other times they've said no docking you now have the ability to play in a first mode and upon undocking you now have only the ability to play in a second mode so i can't affirm please answer your question as to what chestnut hill defines as the media device whatever it was whatever it is the things that my kids used to load up with music for me because i didn't know how to do it but when bats removed than there is and it will automatically choose the second orde and and but i don't understand how removing that isn't the same as a user selection in other words the user removes it and therefore understands that there is only one mode of operation and that was a good argument below exactly that chestnut hills proposed constructions are have been a constantly moving target below it was argued that the user must be knowingly must be presented with two modes and mu knowingly select that mode one of two and then the device is configured to operate in a first motor second mode that argument was rejected by the board the argument that's now being made in the appeal especially in the reply brief is it's irrelevant who or what this is on page three of the great grief who or what makes the selection the only issue now is that a selection is made and i think the reason we've gotten into this confusion is because chestnut hill has essentially especially on appeal changed the limitation that the court has been asked to look at chestnut hill characterizes the limitation as configuring a lift sees s device to operate in a first mode and a second mode electively that even if you're right you're reading would take the word selectively pretty much out of it i would respectfully disagree your honor in that without the word selectively then what we have is a device that is configured to operate in a first mode and a second mode possibly simultaneously and so selectively modifies to operate it doesn't modify configuring and that's why didn't have that first mode of playing local content so that's where walsh gets distinguished so what we have to have here in order to meet the limitation and what the d m has is is that it devise a meet device has it been configured to operate in a first mode and do all the three things that's required by the plane in the first mode and to operate in a second mode and do all the three things that requires in the second who is exactly practicing this method the device as a method for configuring a media device to be able to operate in these two months selectively meaning one mode or the other is there a separate apparatus  so reasonable logic would tell us that as long as the device is configured at some point at manufacture at the time it is programmed at the time that it actually close that happens around for example v d m what happens is the device is c because maybe you're not one of those people that has spotify or anything else on them if you're pulling music in on from the internet you're paying for it as opposed to something you barmy and it's already been downloading and so why wouldn't she hear well unless you're twenty five and you got your mother's credit card which is right my situation yes my children if they care they'll tell you no but let's say you do for monetary reasons care there's nothing in the patent that discusses that of local content or abscessed remote content and then have it straight is not a device that would allow you to do just one or the other but in fact both selectively and also pry elective from so that you choose the one you want to do so that somebody like me wants a listen to a priest that list listens to that on there or whatever device you have docked and somebody like our kids who wants to go out and pull all kinds of things that we would even i don't believe so your honor at least as far as this claim is concerned they certainly could have read that and limited the claim to a user knowingly and that was originally what they argue that users knowingly had to do that they're no longer arguing that in fact of page three they say it doesn't matter it doesn't matter who or what does the selective so just enough to be used anymore if you could happen automatically and all we're doing is asking what's the board reasonable when the board under the br reasonable interpretation interpreted the claim not to require that it be a conscious choice by the user to select a mode and the answer is yes based on how the claim was written and the it was written term but also anything any additions to that term where we got its out column six lines twenty seven through thirty it says the use of of including or can for comprising i'm sorry c prising having containing involving in variations thereof is meant to encompass the items listed as well as additional items and so what chestnut hill was very careful to do is say our claims are very broad and this is what happens when you're walking that fine line between wanting to cover your competitors products well if you do that and you get too broad which is what they did here you're going to end up covering the prior art and that isn't said they didn't want to be limited chooses to either access it locally if it's stored locally or to access it remotely if it's not stored locally it's stored remotely so yes media most definitely has both modes and that's the critical nature of it you have a footnote that you drop and say that if we disagree with any one of these because you have to win on all three just agree with any one of these that that we should remain because there are other arguments for why it would be obvious in any event you want to expand on that i guess your honor i too for example  let's talk about list the ford found quite clearly that list had to contain local content no doubt about that you read the limitation it says a list of local content but it did not exclude can't doesn't that surrounding language indicate that the media device is flying only on device music when in that mode and the list is only the on device list that no i  could in fact be content that is also stored remotely to the list as it is not and there is no language used that says it is xclusive and in fact the language that i read  limitation when you say remotely store and what are you talking about when stored for example that you would access the internet that lets him resample every piece of music in the internet i don't know how broadly would get you on a bit  when this language is the use this limitation talking about a list of digital media conduct stored on said device if there's anything else added to that list that limitations no longer met that that's what the argument  list an ordered list and it listed all the judges that are presently sitting on this court and i added to that list judges who are set to sit by designation next month it's from the district court who are number not added to that list every person that exists in the world then it would be hard to figure out where the judges fell out with agree trying to we're not talking about adding anything infinitely because we're really talking about this that in the context of e d m and what does cover this claim or not and the answer is it does because it has a list of locally star content and within that are also songs that are remotely stored not all the songs in the world but certainly songs that are not just locally stored and the argument store on locally then the board would be posed with the question would it have been obvious to make taking the prior art and making it make an alteration to include remotely stored the bore never reach that that's why and i apologize transmission it could also be indirect if this court should find that no the board was wrong it should only be direct that it should be remanded because v d m and we presented this to the board i don't know that we argue specifically in construction warner i'm sorry i don't have a cite available i think that we didn't argue many claim constructions but rather we are objecting to if you're going to construe these claims we think no claim construction is necessary in the way that you have done so is  red herring if you look at the specification there's a statement that says when regards to the detach ability for instance the front facing piece of this that you can detach it and there can be a link between the remote control and the larger base and otherwise the system not because we don't want to talk about what's in the middle but because saying configuring a media device to operate in a first mode and in a second mode selectively is quite a mouthful the selectively comes after the comma at the end of that phrase if as apple suggests it's supposed to modify the operation  device it should come after to operate configuring the media device to operate selectively in a first mode or a second mode but it doesn't and in apple's briefing they have this line about well you're really configuring it to be able to select something but that's not what the prosecution history reflects and apple doesn't have a really great response for this because the prosecution history is really clear in that page twenty when it talks about walsh they said the examiner listened your to your commands selectively the second mode sources is great except for the fact that that's not what we're talking about you want to make happens up here because you have to have pictures source and you can see that in the claim language of claim one because in the operation the second row where it says a separate selected first media source or a separate selected second media source in the second mode and the reason they had to put that distinction in there was because the these selected sources was one over a local area network or one or a network just like you said john or kids generally everything from i tunes and so you had to have selected which of those sources you wanted to access content through that inherent selection and the inherent selection is clear in that in the record in the specification in the prosecution history and this part that they point she to they it's footnote three they're hanging this argument on about the selectively selectively assertion that they're making but if you look at eight twenty eight twenty one of the specification for no three is dropped from this larger sentence that says nonetheless to advance prosecution all of the independent claims are amended here and to make it clear that the device commands a specific selected media content source to deliver requested content in response to user input at the media device and this question also of gosh we can't figure out what's doing the operations is also a red herring because if you look at the language in claim one it's very clear and i'll get to the user issue if you will i'm very sorry give me a little lecture time but it's very clear and a language of claim one it's not a method of configuring the media device it's a method of using the media defines the configuring selectively happens as a operation after which the subsequent operations happen and the logic in structure of this that's nantucket interactive gift provides you with that has the segregated you look at the claims there's a big a and a big b the operations of a are the first mode the operations of the second mode so whether you don't want to access remote content because your kid spent too much money or you don't want to access from a content maybe you're in a place with no wife i and you you can't reach it selecting the mode or selecting the source by this  me selecting a source acting as a proxy for this note selection is critical and then this last issue about how we didn't raise this argument is also a red herring if you look at the transcript from the oral argument it's this conversation that they selectively quoted to you and the remainder of that selectively quote to find reference to it is that yes we raise the issue of the selection this configuring selectively has to happen but that configuring selectively whether it's done by the user or it's done by some other thing is ancillary to the larger arguments where you remember that is appendix thirty eight twenty four at fifty four eleven to twenty three and a final reference or