broadband the trial court order made two fundamental errors in our view first by its claim construction itself and then by had subsequent interpretation of its own claim construction now as a flamin area matter i certainly realize that the court's recent decision in the global connect case has a material impact upon my argument that this claim should not have been construed in the first place that this claim should have been accorded its ordinary meaning and that there was no evidence in this case that either the applicant was attempting to be their own lexicographer or that there had been any knowing disclaimer during the course of prosecution is you know historically in our cases they argument comes the other way district courts are often challenge to criticise for not limitation on the claims that one of practicing this invention for whatever reason was not able to download the entire content of the file that was being distributed to the cache network  that's the problem when you really boil a skating case down to it's not and the reality is that if you look at the patent you see you simply see no such limitation and in fact to the contrary you'll see consistently some very permissive language there's no question but these claims are written very broadly and that each time you see the environments described in this ban you'll see use of the words may through out there is no limitation or suggestion and i don't know how one could even look if you rely entirely upon the summary of invention portion of of the patent which the truck court clearly did whether that psych took what the district court to be saying to be something a little bit more like this and with catering when reallocating storage among let's say three people  require some sharing of resources so that not everybody has all of it because it's good for anybody has all of it then you're not sharing anything and there's nothing to reallocate so that it may well be that one that is i don't think that this report was saying no single one can have all of it but what can't be the case is that all of them have all of it and that's what is in again confuses the method and system claims that are described in claims one in fifteen in particular which are really nothing more than a method and system for the distribution of content the all the ultimate result of of whether a single peer acquires all of the content or not is really kind of irrelevant to what the claims are describing here claims are really describing a method of reallocation which you curs once that have messages sent and you know there was some dispute in the record about whether the defendant use the rarest first algorithm or not but ultimately the truck court decided that it that  or in this context almost the same thing but at the end of the day what you're hearing what you're describing in this patent is simply nothing more than a reallocation of content based upon this rarest first algorithm the in result of an individual peer acquiring one hundred percent of the content of the game or not is really not relevant what's relevant is the allocation process that's going on throughout that different is going to be shared by different peers a different times and so the idea that you know there's nothing in the patent itself that says that a peer cannot give off content and once again i think that's that's the point here the point is that that limitation is simply not found anywhere and  the court ruling is based upon a centrally three premises that in our view were wrong first it's description in understanding of the summary of invention that each peer is associated with the content portion second that if you each peer had all of the data inventor would face the same problems that existed in the prior art and three the phrase among the peers in the claim precludes a single tear from downloading all the content now as we said in our brief there is absolutely nothing in these claims that precludes appear from downloading the entire content or in this case the entire game ball the court in the defendant seem to be much and seem to be making much of the fact that the clients always intend to download the entire file as a practical matter under the patent why should that matter contact fortune is distinct from the first content portion this paragraph again is merely in describing and inviting what and should not certainly limit the scope of the claims but more importantly merely drawing a distinction between the first portion of the second portion doesn't mean that a peer cannot download the entire content if you look at the specifications consider all of this permissive language consider the section th claim shares and primary distributions column fifteen lines twenty seven through forty eight it is littered with a mess of language the from or a distribution of cash may be determined by the actual primary distribution of cash make comprise a simple fractional split a particular client which reboot may receive a smaller cash than a client which has historically high up time nothing in these claims prec a client from inquiring being car content of the file and most important most important thing for the court understand here is that these are system in method claims what is happening with respect to any vinda vidual in the system is not so relevant as to what is happening in the system this is a cache community and the patent describes the interactions among the peers not just a single peer and these interactions in the patent include the interactions of the peers in the swarm so you have the sending of have massive juice you have the handshake process you have the exchange of messages you have that piece selection process in the case of the jews games auroras first algorithm and whether an individual peer powers down his computer for example before downloading one hundred percent of the game is really irrelevant he still playing a role he's adding value to the swarm by providing content that now the courts based its entire ruling on that irrelevant and false premises that the goal of any given peer as ultimately to obtain one hundred percent people in the art of this patent testifying about details of these claims that were in opposite in almost every material way and if you don't read anything else th two experts disagreed on virtually everything now you know better than i that these claims are to be read in the light of a person skilled in the art not in the light of an article three judge may please the court thailand it's on behalf of the a police and i think i'd like to start the discussion with a question that judge toronto asked of my colleague about the accused systems and whether or not in the  person for staying the swarm ever shed any content and the answer that question is no no person will ever shed content their whole goal is to get all the content and what's most important to these claims th issue here is that everybody that enters the swarm and you queue systems must enter and have the exact same amount of storage set aside no one can ever use less everyone must have that amount and that's why the e q systems are different than the claimed invention the claimed invention is not about downloading content it's about sharing storage sharing cache storage distributing that amongst the group that's why this patent title is about a distributed data caching system and method the claims are directed to sharing storage responsibilities in the accused systems there is no sharing of storage responsibilities everyone must have the room for everything and if you don't you're not allowed in no one ever sheds any content and i think this is a is an important point because the claims that we're talking about here are for a distributed data caching system and a very specific scenario with in such a system and is a scenario where you have an existing community and now somebody new wants to join what happens to the cache storage when that event occurs that is what these claims are entirely about and at that moment in time but the claims tell us is you're going to reallocate that cache orage among the peers that now exist in the group including the new client joining and when the court looked at this and was discussing with the the attorneys myself being one of them during the hearing we understood that you can't move the storage the storage is fixed in everybody's computer so how do you express what this claim term means and that's why the court chose to do it in portions of content to be cached because that's what you can move around by reallocating the cons the amount of content that each peer will get you have an essence reallocated their cash or if they may have to use more they may have to use less depending upon how you give it out to them but the patent is consistent and repeatedly says that when you do this allocation each person is going to get some but not content and that's how the court came to that conclusion when you look at every example in the patent not only the not only the discussion of the actual claim which curves in column twenty one of the patent but the discussion of the of all five and if you look at thing your five which i think is that appendix twenty nine and you look at figure five it's important that when you look at each of those distributions and figure five the trying to take care of an issue where if you have one peer whose computer seems always reboot or it has a lot of down time they want to make sure that the system has a redundancy built in and so the content is still available to the community where they don't build the redundancy and is in each of the individual distributions if you look at the primary secondary and alternate secondary all the peer none of the peers are getting the same content it's an exclusive distribution on the horizontal you get the redundancy on the vertical what we're talking about in these claims is the horizontal that's what these claims are about when you bring a new peer into the community you reallocate you spread it around everyone get some but not all without overlap if you want the overlap to be built and once the new community exists then you can perform figure five but the claims are not about figure five the claims are about that i refer to as that primary distribution so when a new peer comes in we're going to to see what the content is we're going to see how much storage capacity we now have and when to start spreading it around so everyone can share no one has to take on too much of the burden so when the court interpreted the reallocating step as reallocating the portions of the content to be stored by each peers cash storage he was accounting for this very of  that and what the patent says it's about in fact when this when the reality limitation was actually put into the claim the applicant point and the patent office to the portion of the specification that supported the limitation and that was in column twenty one of the patent line seven through thirteen and when you look at com twenty one line seven through thirteen this is where it says that when a new peer joins a dynamic cash application will reallocate and provide east the new client with a subset of the content a portion of the content the summary of the invention is by far not the only place that supports the district court's claim construction column twenty one fully supports that figure six figure ten and also column twenty five lines twenty one through twenty five which is at appendix forty nine all of those places support the conclusion that this claim is about reallocating content storage by giving each of the participants in the east in the community a piece of the content t store but not all the content would would it matter if the system gave some or all as long as it gave some less than all you're are i think it would matter i certainly would say that the patent doesn't contemplate as far as i can tell in reading the patent a system where in the initial that initial distribution that initial allocation that the peers share responsibility for the same piece of content in in  every example in the patent every every place in the patent they talk about how it's split up it's always that each peer is getting different pieces of content and there's no overlap within that distribution and i think they did that for a reason because they and in your situation in the situation you're describing there are still be eight and a reallocation where something might get all but not others would not at all in the system at issue here everyone has to have sacked same amount of cash torch no one can have a lesser amount if the game is twenty gigabytes in size everyone coming into that swarm has to have twenty gigabytes set aside for this and that the software checks that before it starts out of the yes you are yes it does and and if i can find my site have a find the site for you but actually the declaration of the person who wrote the software is in the appendix and there's a statement in it wasn't disputed by the opponent breaks it checks before you can even enter the swarm once you're in the swarm you never you never lose you never can use less you never can set aside some and not you you're going to have to keep that set aside until either you leave the swarm for a reason or you get all the content and it's filled up so you're honest i think that you know the district court court's analysis in this case was i think you follow what this court has told him to do time and time again he looked at the claim language he understood there was a dispute as to the scope of that claim language he read the claim language in light of the specification in the prosecution history and came to the conclusion that the best way to describe what the reallocating through means is with the construction that he rendered in the case and by doing so heat then examined the a few systems and determined that the a q systems simply don't reallocate cash george there is no reallocation that occurs because everyone has to have the exact same amount of storage and by doing so there were no no one disputed that fact the word of this piece of material fact it's a summary judgment was appropriate in this case and we believe that the district court in both claim construction and with respect to summary judgment got to write a letter on if any more questions i have thank you thank you download and store one hundred percent of the game package but he makes this point however just because the go each client in the panda system was to attain the entire package it was not necessarily that each client would download and store one hundred percent of the video games in some cases the user who requested that lie for example would change his mind and never return to the swarm he might for example decide to package takes the too much space on his computer or he might turn his computer off and come back and do the rest later but he is still contributing to the swarm he still providing an opportunity to share data and reallocation under this patent the ultimate result of whether or not an individual gamer downloads one hundred percent of content is not relevant to s declared sworn testimony is met when this reallocation occurs when a person gets to have message and in assoon as they join the swarm because of that route rarest first algorithm the content of what they have is now immediately re allocated that's the reallocation limitation what ultimately an individual member of the peer does with respect to the swarm is not relevant to the claims of this patent and in the end of the day if you look at the summary of invention which is what the trial court looked at and relied upon in seclusion that one hundred percent of the content could not be downloaded it simply doesn't say that it distinguishes between the first portion and the second portion but there is no unambiguous statement anywhere in this in this pattern that says that users of the system are unable to download one hundred percent but our point in the point that i want to leave you with this morning is that that is irrelevant to the