reflecting surface st the parties agreed on in the construction and nonresidents surface with low sound absorption not made of sound damping material the court and further consider in the construction excised the word nonresident from that construction and provided a definition that is inconsistent with claim language the rest of the construction of the specification an expert testimony explanation right that is what the court said but that isn't correct your honor when the court said that s s t o defined nonresident as avoiding materials that would resonate at audible frequencies the court didn't consider the entirety of what slot speaker said in the same sentence what s s t said in its claim construction brief is that it would have to wait materials that would resonated audible frequencies and thereby dissipate sound energy instead of reflecting it as a panel resonator and what the what slot speaker was saying there was comparing th is doing is comparing resonance with dissipation of sound energy and that's entirely consistent with what the specification does when it discusses sound reflecting materials and contrasts them with sound absorbing materials the experts are clear the specification is clear there is a spectrum in materials sound reflecting materials and sound absorbing materials and they have qualities they have properties of sound reflection or sound absorption but as the experts agreed no material is perfect no material has perfect sound reflection no material has perfect sound absorption so in explaining in its cl construction brief that it would avoid materials that would resonate and thereby dissipate sound energy is there any testimony or evidence that alleges that there's always going to be some amount of resonance that audible frequencies no matter how you design the surface to matter how thick it is what materials you use there is always always always as a matter of science going to be some it has has perfect nonresident but that leaves room for the possibility that whatever minor amount of resonance that could exist for any is kind of surface that could occur at inaudible frequencies rather than audible frequencies if we go back to the claim language the claims are directed to a narrow profile ground plane audio speaker system so we have to look at the claims in that context you have a sound reflecting surface in the context of an audio speaker so i'm what i'm trying to figure out is you're you're trying to use some kind of principle you rely on power integrations for the idea that we have to understand i want to warn or skilled they are would look at these words and so even if it says well not varying or even though it says nonresident well we engineers would understand that there's always going to be a tiny bit of resonance even if we refer to something as being non resonant and and so now i'm trying to figure out well it appears to me that there's room in this record for that there isn't an actual dispute between the experts as to whether any tiny amount of resonance has to occur in the audible frequency range and that i didn't see in the record what i saw from your expert were these broader notions that well what is going on with apple's products isn't significant residents and so therefore it's nonresident and that's different to me  than actually joining this very particular question that i'm concerned about which is whether you have something in the record that says no matter how you design a particular reflecting surface it's always got to have at least some amount of resonance within the audible frequency range and so i don't see that the record if you could point to me that would be helpful well let me explain to you two particular points one is let's go to the specification and how the specification describes these materials the specification describes examples of the materials and the specification also says that the sound reflecting surface is substantially not resonant and that it's helpful in a propagating acoustic waves generated by speakers while minimizing losses due to absorption so the specification itself recognizes that there is there will not be perfect nonresidents in the context of the invention that's construction of nonresident to mean substantially nonresident and that's not what was agreed upon for being the actual construction point it's like if the specification said  you know proverbially the doors substantially closed and then the claim says the door's closed i don't think you get to read the right to claim to read the doors closed to now be the doors where they substantially closed just because the specification says the term substantially close we are owner here we're not even dealing with a claim term the case is that you're forcing the district court to construe a construction that was agreed upon by the parties if if you were pressing an interpretation of claimed term into some kind of workable plain language that can be ready understood and applied potentially by a jury and then you say well there is actually more technical interpretation that's got to go on beyond the actual words that you agreed upon it it's feels like a shift in in the argument but you're drawing from x to y dizzy n it's a little bit confusing on whether you should be allowed to do that well your honor this issue came up during a good summary judgment hearing in the judge suggested that there might be confusion on resident in slots because of you there is no further construction that was absolutely mandated the construction was nonresident circus with low sound absorption low sound absorption does not mean no sound absorption and by taking out the word nonresident and rican strewing it to say that it does not  audible frequencies the court has has new construction that is inconsistent with the old construction the old construction the original construction that we believe was clear and the jury could understand the experts had no difficulty understanding it and applying it said low sound absorption low doesn't mean no in the new construction that doesn't nanine no not in the context of nonresident with low sound absorption not in the context of the experts agreeing that every material has some resonance not in the context of a specification that said that the materials are substantially nonresident in nature does every material regardless of not necessarily but that isn't the question in the context of the specification well why wouldn't it be if in this particular case you know there's no dispute that apple's phones with their metal plate is degree difference with of the point of the but your your expert didn't say that there's going to be a a change of to does a bulls are a few decibels he said a few decibels considering them occur across the spectrum as we show when our brief there is an example of the comparison i have their frequency responses where it is less than that the point is not i the just an that it not i think i know which figure you're talking about for it and that might be true if the to  peaks at if not sure around twelve killer herds down at the trough oh why is that not significant this quite a large gap there well that at twelve killer herds you're out of outside of the arbiter frequency band which is up to ten soap within the article reg fewer within the audible of range but you were also looking at a preference or all response to frequency which the experts agreed happened at at those peaks and what the differences are those peaks and what what addition if any the plate provides at those people levels which graph are we talking about her we talked about something in your gr i guess it was not clear to me that apple's argument was limited to the two peaks in the i don't know less than ten dollars range your honor across the variability and across the residents response that was tested there is clear expert testimony that the differences in frequency response between the duct and separating out the metal plate itself that those were in significant differences there's substantial testimony from s s t's expert that did this testing and separated out  same speaker ten times shows a variance in the frequency response that variability is going to occur that variability is is consistent and in some cases more than the resonance that was tested and shown could be provided by the metal plates my guess i guess eleven trouble spot for me on this is that it seems to me that  a lot of the thematic for speed hein your suggestion that the district court in modifying the claim construction adopted a claim construction that cannot be met in the real world would require no more than some amount of wiggle room to use a highly non technical term but it's not clear to me why that is not fully satisfied by wiggle room that covers that were that would exclude in non resident sound that the human ear can't hear so resonance causing a human perceptible sound and if you put that together with what appears to be an undisputed undisputed facts that two decibel change can be heard and that there are two decibels changes why does that with larger variances among its phone because in the context of the specification the context of this invention is an audio speaker and audio speaker is going to produce sound in the audible sound range it's going to have acoustic and acoustic sound and the when this is specification recognizes that in the context of audible signals acoustic signals that the sound reflecting material is substantially nonresiden and that it is there is a spectrum between completely reflecting and completely absorbing and the sound reflecting surface falls closer to one side of that spectrum but that there is no absolute then the judge in construing are reconsidering the non claim term nonresident to be absolute in the context of the specification in the context of this invention where all you care about is what you can hear because it's a speaker then that is an absolutist construction that's inconsistent with the claim language and it's inconsistent with the specification ok well you have that rb has more than used your rebuttal time me good morning and may it please the court are claiming together with jason lists on behalf of apple i'd like to start by answering judge chen's st question which i think really does if anything crystallize the issues here and to summarize the question if i may i believe it was is there any evidence that no matter how you make a service there's always going to be resonance at oracle frequencies and counsel very carefully did not say yes because the answer is no it is very clear from the record that you cannot make a surface that does not res but if your honour's look at the passages of the record that they actually cite none of them addresses the supposedly in operability or impossibility of making a sound reflecting surface that resonates outside the auto range not inside the that is what the claims cover that is perfectly operable it's just not what apple does apple makes a conscious choice to have a thin stainless steel plate that does resonate at a lot of the frequencies in order to make room for a more powerful speaker that will increase loudness there was a point made briefly in council argument if that if the metal plate was somehow thicker i don't know twenty times that there what would happen i don't know whether twenty times is the amount but i think that is going to be one of the factors that would move the  higher so it would be not you know that a dog might be able to hear it but a human being could not and that would move the residents outside of the automobile range and that could be something that would be covered by the school so if just so i understand if that's what our expert said that's what mr porter apple's engineer said and there's nothing on the other side dr elliot never applying to this because the argument that s s d was making both before the district court and its blue brief before this court is that the construction somehow was in operable it precluded all residence which is a straw man argument we never argued that the district court never helped that the construction is as to do with whether resonates inside the ought of the range if it does then it's not good if it doesn't and all residences are outside the dispute among the parties as to the meaning of the construction and it asked both parties to present proposed further constructions and the district acted accordingly there was nothing improper about that as to the graph that council addressed with your honor notion that there is some that the delta between the two peaks is somehow too small to be heard is something that comes up in the for the st time in the reply the attorneys have blown up an annotated the chart on page eleven of the reply in and wasn't in in the opening brief to this court if he will then i'd made the argument always was that what you see in this graph is evidence that the change is so de minimis that it's that it's nonresident no i think if you give the argument no the argument was always there was never this distinction among the different types of i phones even dr elliott simply said as across all of them there is a resonance of a few decibels he tried to downplay the importance of that didn't deny that they were there and that's what allowed the district court to find on page twelve of the opinion that the metal plate in these products resonates such that the audio output is affected and that that was undisputed it's only now in reply that they say wait a minute this graph shows that at least in one of these examples maybe you can't hear it that is not an argument ever made to the district court and there's no expert testimony supporting it notably had they made this argument in the district court or even in the opening brief we would have pointed out that at higher frequencies the human ear can hear differences a point twenty five decibels that's from the very same master handbook of acoustics that the parties have been talking about it's not in the record because they never made this argument until the reply brief in this court which is why those kinds of arguments are typically not counted and when you say higher frequencies you're talking about numbers li sixteen or seventeen killer it's come range unless the court has any further questions with respect to submit the judgment in this case should be affirmed thank you thank you  attainable that's at appendix one thousand one hundred and nine paragraph sixty seven apple's expert recognized in the context of the invention that the specific materials in the patent are understood to be sound reflecting in the flecting surfaces and provide examples of materials that exhibit property is associated with damping and converse lee properties associated with reflecting the construction the original construction by the court recognize those differences and the construction should recognize the practical realities of materials that a perfect reflector or perfect resonator is quite unattainable in the context of this invention do you agree that it's possible to make a material think enough so that it becomes definite so that the present frequency is above and beyond audible frequencies that is consistent with additional moving the residence outside the audible range would be catastrophic to the speaker performance so at least apple in considering this resonance issue so that it would be impossible it would be possible to do it so resonance as the practical reality of the materials in the context of this invention is something that is expected and understood where is that porter testimony of your interest that is that with the word catastrophic by pointing out that in the comparison that we showed you know our grape relief that there is less than two decibels of difference so to the extent that the judges construction on audible means audible to the human ear there is evidence showing that at least some of the products have less of a frequency difference than that so we were safely was this record summary judgment order on the final ape said there is no dispute among the parties of that the amount of bull level dude of the full plate does something that's audibly detectable he's this record said though right the district court did say that yes it yes the district court did and we responded to apples argument made for the st time in appeal and it's in its breathe that there were there needs to be a to decibel difference in order for something to be audible to the human here so we responded to that here by pointing out that that is not so