no that would not be the end of the inquiry so we've presented our argument in three parts because from our perspective there are sort of a series of three areas of error committed by the district court and i'll present them in and  code her parties and the court all agreed that those terms should be construed the same way i didn't go to peers and claim one identifying code and claim twenty two the district court also construed two  the district court actually did not and made a point of not entering a construction of the word code or an interpretation of what constitutes a code in fact the court's claim construction order and this is a pages twenty one twenty two of the appendix actually affirmatively says that code has a plain ordinary meaning and that it's not appropriate to give it any further construction the district court however in then granting summary judgment appears to have departed from that in a an unspecified manner at page five of the appendix we see the court holding that the the items that are expert and the plaintiff's papers pointed to thinking sure so after the court entered its amended construction it provided the parties an opportunity to submit a supplemental expert reports basically supplemental declaration by the was a real shift that was a real shift that's correct but also your ire as as the court may recall this case had claimed construction proceedings long before the summary judgment stage the item code terms were never proposed by any party for construction the district court did not enter any construction of them at the summary judgment stage the district court then invited for the first time additional briefing on the construction of item code as a term and entered a new inappropriate to be offering construction of those terms of the time because the defendant did not propose that they required construction and indeed move for summary judgment arguing an interpretation that we are argued was inconsistent with the ordinary meaning of the term which would of course apply where there was no construction i do want to disagree a little bit with one comment you made about the court's ruling on construction and the word unique because what this report said at page twenty two of the appendix is is appropriate to give the word code in item code its plain ordinary meaning to one of skill in the art so the district court did decline to offer a particular construction  distinct limitation discussed the law and what the court and goes on to say that i am and user identifiable information must be distinct from one another that's right and here's let me get to where claims talk about two sets of product or group of product identifying information you have an item code or an identifying code and you have user discernible or user could not use of all information and those are both claim and the structure of the ellipsis so we presume under longstanding precedent consistent with longstanding this usage there probably differ that is correct and they would but that means that they refer to different things in the description of some product or service or group of products potentially that the patent talks about that that you might be looking at and the item code as more of a shorthand or an abbreviated or condensed form  actually what the system uses to communicate the information within itself so you could think of for example well let me just say that this is what i've been thinking about this way and i want you to clarify that seems to me that in the claim construction the judge said one thing namely the item code can't be the same as the user discernible information that comes up on the display then in doing summary judgment the judge said the item code can't be use or discern it can't have any use of discernible information or at least not any that has some derive ability with respect to the displayed information and the first it's a much less restrictive construction than the second and the second is what we relied on for the summary judgment embodiment you have a off line ability to enter an item code and when the system connects at some point in the future it will bring back the more robust product description that is referred to as the user discernible or use possibly now that doesn't mean however that there is nothing user discernable in the item code itself what it means is that you won't have the full some product description until it brings that back but  that's different than saying the item code is from unintelligible to any human and the next sentence that i was getting to a moment ago at line nineteen says under most circumstances this information and that's the item code will be of little use to you use or so what that saying is many times that that information that item code won't be very useful to you as a person human being looking at it but by implication that obviously means it's not always the that's fair but that's that's an example so that the patent contemplates for example that the item code may be enter in any number of ways including by a keyboard by voice recognition and that's explicitly discussed in the specification if you can enter the item code by a keyboard or by a voice recognition device you clearly have to be able to understand it enough to type it in or speak no you just read the series i mean i have no idea what seven digits only four it would still be a code it would still be something but you could pretty readily learn the four digits that represent a bottle of diet coke or four digits that represent a particular other product and you would information is in no way directly to rival from the product well and we haven't suggested that the what we've referred to so i think the problem arises from the fact that the specification in the claims refer to these two categories the user discernible information the item code and we agree that those point to different things but that's not the same as saying that the item code can never be in any way  and so the fact that it may be discernable and that you may be able to recognize it doesn't mean it's not an item code indeed when you say discernable that the patent isn't talking about the fact that somebody that's t qualify as an item code it could be almost anything this isn't the item code itself isn't really the core aspect of the invention obviously the invention is about creating this remote ability to to interactively update and ordered ordinary language searches to develop a list of items that fall under the more categorical sat search terms and then second step putting the i then said come up so the item code your honor is essentially the thing behind what you click in so this is really what the invention and that is talking about that there is the description that you look at as a user and then there's the item code that the system uses to communicate back and forth between the merchant and your system and tell it ok this is what you want so when you select a particular kind of butter in one of the examples in the patent this the user discernible part you're seeing as which kind of butter you selected the system the sending the item code and using the item code as the item on your list now because you've already got that where in that written description if there are any reference  exemplary d p you screens that illustrate following the sequence of steps involved in creating and submitting the order list and that obviously includes figures for five all of which involve this very approach of being presented with sub options and selecting one to have that place on your list and that's the explicit context of those figures your way out of time not going to minutes for reply thank you rebecca and we'll give you an extra two minutes it seems to me that the district court it actually changed constructions between the white and outs under the claim construction which had that crucial word the it for the use of this or well information and then in summary judgment said the item code can't have any user can't have user discernible information even if it's different from the user discernible information that  and i think the court has already highlighted the portions of the pen that the that the district court was leaning on in that construction and particularly college eight around wants twenty two twenty five which address that particular issue as it deals with as the court has already looked at it it talks about the translation referring to the translation of the item codes is distinct from the use of discernible representation of the product and then that same language goes on to say that the latter referring to use a discernible representations which could be you know anything from the manufacturer of the source the product name the description all of which is taught by this patent the latter being in no way to rival from the product code that what seems to me the most that the largest point the other side has to make about the spec which is the whole situation described in figure four and column and getting a menu of options and you use that a better one or the perishable items or perishable goods or whatever it is and  then at that point start the process of putting it into an order list which you then modified or where why is that process not the entr by the user into the data entry device and eight i'm code we don't know quite what it is but it's something behind the hyperlink presumably that is not identical to the words on the screen but is one way for entering an item code and if that's true how can that be squared with this this notion that it can't be discernable by the well the way we would square those issues is we would actually we wouldn't just jump to that remote portion of the lower portion of column nine and then we actually start our review where it initially discusses a figure three which is around column seven and column seven it discusses once an item has been added to the current product order lists response icon sixty two and sixty four appear on the screen and those response appear as a result of the product being scanned in or being interviewed in some way so say for example from column seven continuing on through column nine there is further discussion a column nine around thirty five through fifty two of those same response icons sixty two which appear as the result of a product being added to the lips so as we talk about you know these these response icons they are a result of the command entry device the command in tree device is something that is separately claimed in the patent from the data entry device for him putting the item codes the data entry device ha to provide these response icons which are taught in common tin as well seven through seventeen which the appellant continues to reference throughout his briefing specifically in column seven nine and ten the patent teaches that once an item is added to the order list by scanning the product response icon sixty two appear on the display as virtual what and they can be used for anything ranging from adjusting increments of the highlighted items which is taught in column seven around line thirty six through forty five or displaying the option list or the summing used their provide for frequently order i guess so as we look at their construction the appellant's construction would essentially write out the item code limitation as a require portion of the claim the item code the data entry device is required as taught by this patent in both claims one claims twenty two and throughout the specification that the item is in put through some form of a data entry device and then subsequently and that it subsequently in time but is the patent teaches that some user selection or manipulation can happen after the item code is input if weeks if i don't code it was so important to your overall analysis here why didn't you ask for that instruction upfront initially there were there were some issues with respect to other claim terms that we thought  us to the same point particularly in this case the data entry device was a term that was a part of the original claim struction and the court involved that in the supplemental construction as well so as a result of several issues that came up  judgment the court invited additional construction were relation to this term and the data entry device and user input in terms as well so moving along if there are no further questions we respect to those issues  t the core of the really the core of this issue is the appellate attempting to conflate the selection by user which is taught in columns ten around line seven through seventeen with the actual item code  about infringement no i think if that as follows along with the data entry device being separate from the command in tree device and not allowing this user presentment to overtake or write out the necessity of the item code or the data entry device of the patent he just then the infringement the the district court's opinion should be a permanent to what extent as a matter if any that judge starr did not we lie or or use the expert reports of making the summer judgment determination well i think we're jetstar good in this particular case he looked at the record he reviewed the record as a whole he wrote that the clinton structured briefing on these issues and again and as clearly came out of page the court reviewed expert reports and there was an expert affidavit that otherwise cited it and jane that so which is the same as a t s t switch and a court in viewing that having legal insufficiency because the experts it x is why because i define it  and the court say without factual foundation this opinion of this expert is legally insufficient so this is the reason why because the expert report that was provided the not adopt the court's claim construction in its application to find a problem theory of infringement it used the improperly brought previously rejected claim construction that it previously issued to the court in subsequent cases two thousand and one there was in the words vs been been the lead of the court here find that the expert report for legally insufficient there's no such finding in this case now that the court found that the the report by dr shame was applied the courts claim construction and it further undergirded the court's review of the intrinsic sought and the court does have the authority under the plan it being a case to refuse a particular construction or review of it if it otherwise provides for the antithesis of what the claim construction of the claims as construed require and that's what we did in this particular case in the can you just explain to me with respect to the allegedly infringing devices or activity how do you match up their user selection with their with the actual things that are chosen how to we is no database of i don't code or a hotel or a light or anything like that i'm not sure if i'm understanding your question correctly but it has to do with infringement right as far as our systems our users would input a series of parameters that they understand to find say a destination a flight or a hotel room right so there was parameters which otherwise allow them to purchase what would be purchasable product a flight which would be on a particular day a particular flight route a c on that later for a particular time a hotel in a particular city what did your system do then just take those parameters and then search for those things if there's not a pre established database that you're searching from it reaches out to several backbone travel databases to find the available flights through say it use for it to use one of them as an example expedia you would put in the series of parameters based on the user's preferences what they would understand and where they want to go all being discernable even though they do meet every day the definition of item code as something that can actually refer to a group and even though the databases presumably if the using those terms to identify a group of seeing this that come with in those terms it's all about user discern ability of heard by the consumer current and is is it true that in the figure four situation and i don't mean to limit it to figure four but the general discussion of how you say tell me what bananas or something and then you start your selection process it and i guess what i'm trying to figure out is your position that that description of that scenario is simply outside the for these items suggested by the database the claims as they're written do not suggest any option for immediately selecting for salmon or bananas both on hold a put a flower who reservation otoh reservation and i go back to and i say go back to your web site and i want to revise that reservation when they do that now because the flight that you otherwise would have been on hold is not necessarily the rival if you just head that item can you would not know that that related to a flight  from the dca it would not provide that information and it would not approve it and in return if you had that flight knowing that flight goes from dca to o'hare you would not necessarily be able to derive that item code is well i want to address a couple of the points that came up during my friend's argument first i think charter you asked a number of questions about figure four and the related figures and i think you would ask whether those described only situations where the user had previously entered the item for the particular items that were presented in the the options and the pattern makes very clear that's not the case where well in context of figure eight is probably one of the clearest special offers for that these are the fat specials we have today those don't have to be things that the user has previously entered and the item code in some other form like i get from southwest airlines they go to exactly or any other checking the box to add that item to the list and those weren't things that you previously had typed in a number or scanned harkat for those are things that are presented to you you check the box the item code is transmitted and thus used to add that this mechanism i would disagree with that i don't think the patent ever suggests that there are two alternative ways to create don't list one with item codes and one without it suggests there are a number of ways to create lists but it never suggests that any of them are want to point out one one thing counsel referred to the command entry device as being distinct from the data entry device that's not correct discussed and says it can be the same exactly finally i do want to say that to pick up on declarations found it pages four six to one to two nine of the appendix and at four seven five eight six one were also because of the way the appendix was created for eight to five to nine these were never found insufficient and we think that the district court failed to properly recognize that those created a factual basis for a finding of infringement even under the district court's construction ok thank you for