modulator and then it starts talking about what is going on with the modulator it's for displaying certain data and as a series combination of now as a series combination  because of the word combination naturally means at least two things are going to following that follow that word combinations not just one thing so that the notwithstanding the extremely peculiar comma in that  right the series combination itself is introduced by something that the modulator the function of the modulator has to display and a series coming nation of two things why does that not naturally mean those two filters have to be part of the module because it's actually the function of the optical filter the very first words in the claim that's what's doing the displaying here and let me be the first to concede that this language is not as clear as it could be i thought you conceded that the both the dynamic and static filter of that's what we're calling them  figures one two am to be on page eight forty four to begin with these all show according to the specification the optical filter as opposed to the spatial light modulator and they are all identical except for the input configurations on the left side of the figures other than that they all depict identical e element to an element three the former being the static wavelength dispersive element and the latter being the  and they are clearly depicted as separate things so why that becomes important is if we look at column for on page a fifty the specification describes the dynamic hologram three would probably be implemented as an electronically controlled image displayed on an amplitude or phase modulator selamat s l m standing for spatial light modulator so here the specification because your honor if we look at it again going back to the notion of the claim could be written clearer it clearly doesn't say that those two elements are in the spatial light module of the prosecution history so let's turn to that and if we want to look at a good synopsis of what the prosecution history and its relevant part says we can turn to page four of the read brief so we start with what is in the first paragraph under the heading prosecution history of the three six one patent and the third sentence reads the examiner stated that quote the claims purport to be for a wavelength selective filter not element isn't programmable it's fixed so then we look below that to the actual amended language and the deleted language that the finnish stars put forth in the block quote below that and then we go to the applicants comment and that's in the paragraph following the blockquote of the apple can also provide a comments explaining its amendment quote the amendment to claim one recites a series combination of says show me the structure of the modulator and the language they get changed to say something introduces this language as a series combination up you've got to have two things after that language which means that the structure of response to the demand for structure of the modulator not of the tunable filter of the of the modulator is something that's a series of combination of both filters and then the explanatory comments comment says yeah we think we actually mean that both are in the margins seems to be not kind of extreme it's not even terribly unclear judge it is it is absolutely unclear in the point in point of fact is scored a set on multiple occasions beginning with philips the reason that the prosecution history is less reliable than the specification is because it is this back and forth between the applican honor with with all due respect that is not the most natural reading especially if we don't if we read the claim although i mean when you use the word as a serious conversation and it seems as about our grammar to require that the two things this play your honor that's not what does the displaying in this patent get is the tunable filter well that you put the clause in the wrong place that might be your honor and again as i said i would be the first to  prosecution as it conflicts with all parts of the specification your honor not just a few figures one two way to be three and six well specification that was written before the claims were amended to respond to specification has primacy in assisting in the interpretation of the claims the prosecution history is less reliable because it is less specific it's the bargain between the applicant and the patent office this is what we have here if then is ours construction is upheld if the district court's construction is upheld every single the embodiment of the tunable filter is now excluded because every single in body mint has the programmable wavelength dispersive element as the s l m and the fixed grading being something else so all those figures i just listed every single figure that purports to depict the the filter is now excluded and assuming for the moment that that is the most natural leader reading of the claim it's not the only reading of the claim and there's no case law that says that the most natural reading of a claim is the one that must control especially want to claim is read in light of the specification and to be clear finnis are has never argued that the applicant somehow disavowed claim scope by making the statement it did of evidence becomes just that a piece of evidence that has to be looked at in terms of all the other evidence in the record the myriad statements in the specification indeed all the statements in the specification that purport to describe the filter it has to be compared to that disavowal would be a powerful argument because it would trump everything else here there is no such argument made it is a piece of evidence to be weighed with everything else and we would suggest there is a long line of cases that says that if you exclude the best mode of practicing the invention described in a specification that's presumptively erroneous claim construction pretty clearly your honour's if all the modes are excluded that would be even more suspect as a claim construction especially again given the fact that the evidence that finishes are in the district court relied upon so heavily comes from a source that this court has said is less specific and therefore less reliable than the specification for your honour's that concludes all i have to say on this i'd like to reserve the remainder of my time to address whatever issues there are on sanctions  back and let's talk about exactly what happened during the prosecution the rejection can you talk about the spec first i mean overwhelmingly their strongest point there he is there and that is i get to finish my question before you get this started answering because you don't even know what the questions thank you very overwhelmingly their strongest point is that it's so can you talk about whether it is true or not true that this including say both three and two in the main figure there is two places that disclose etching the fix dispersive element on the glass of the variable filter those two places are in column two beginning at line twenty to twenty five and then the second place is in connection with columns seven lines nine through few levels those are two disclosures that say with respect to this fixed grading we can exit on the surface of the glass of the variable grading the spatial light modulator so we have two places of the spec where clearly the planes would continue to read on that's the spec you know evidence it's not absolute no  section so when we talk about the fixed grading for the very first time in the paragraph a column to begin to get wind twenty to twenty five it say that says the fifth grade may simply have the form of a fixed regular able to grating or face  and then it goes on in one additional sentence to say when the fixed grading has the form of a face plate it may be etched it may be an edge glass plate and it may be physically combined with the dynamic whole graphic diffraction element by for example etching being etched into its outer surface its outer surface of the reference of the outer surface of and we want and what your understanding of physically  is glass and this is saying i'm going to etch it i'm going to scrape onto its surface a fixed grating that is one body mint that's described in connection with the very first paragraph where it's talking about the fixed grading so there are actually there is no two in that there's just the three with with something action on the back of it there's but there is a variable grading where the first surface of that grading is ash so the the fixed grading is physically combined with the variable so that's clear with respect to this plane as properly construe environment we have the most natural reading as well that the judge who's pointed to originally and i do want to spend one more minute on just really what happened during the prosecution the fight was over the structure of them by guilt later was not clear the plane was rejected as not being specific enough in the examiner set mears had failed to set forth the structure of the electronically programmable space like magic spatial like modular it was unclear and so what did they did they amended the claims with respect to the modulator inserting the language as a series combination of the first and the second rights of the event of the play the most natural reading of that as as we normally read was then further reinforced when they explained the amendment this is a member it was explained and mirrors exactly the issue before this court and then we have the filing of a lawsuit on a device that indisputable e does not have both components both gradings for both diffracted elements of it and that's the reason why the case was frivolous to begin with with respect to the fees question the issue here is clay construction step one of the two step in for example before we put aside the juice products we look at what is the basis for alleging infringement you have to construe the cl and our point is when you look at the rules for construction you look at philips you got to look at everything sort of tell me why the following and i know this is contrary to your fees position to claim language is a vest and syn the spec principly talks about the modulator as involving three but not two namely only the dynamic filter why is that not but that's not correct there is disclosure in the spec supporting the physical combination showing that there is two and one so the plain language in terms of the natural reading is is is far you this court to rule that the discretion was abused in the finding that it was an exceptional case based on a couple key errors the first being the district court's statement for assessment that meares did not ignore the prosecution history that was the basis one of the fundamental bases for the request for is that the position that they were taking in the litigation was was directly contrast and in contradiction to the position that it took before the patent office they got the claims arguing and what the structure was they turn around and accuse and the point is that their claim because struction position had no merit from day one there with respect to the plane in the ordinary meaning we have a clause it's actually thirty more inches long and the issue is was there any support for interpretating this thirty word long clause to say that you don't have to have two in one and from day one there was no support it was frivolous because we know by the natural reading they didn't have an alternative reading we talked about the stack and the mean that in normal terminator reading they didn't have the alternative reading that says if the filter that's two in one in construction of this thirty word char and always effectively had was oh look at their figures in this back that shows that they're separated so the point is they did have something grounded in the plain language diagrams they're described as optical diagrams mirrors would like them to be interpreted as the structural diagrams but the point is well is that why would you wanted us to earlier describing any of the figures or is it just you i guess i have one minute left so unless you have other questions i will reserve if i understanding of this passage if you have a single plate you basically does it's dynamic on the front fix fits fixed etched on the back it's a single physical thing no your honor is that really it's the glass but they're physically part of the time but that doesn't mean that one is in the other of your honor that's the point and judge if we're looking at how this fits with the rest of the teachings it's fairly clear that you have two kinds of dispersed dispersion going on here one is programmable the other is not and but to say that this passage somehow says you eliminate element two once you actually dots of the glass of element three is a m talking about the advantages and disadvantages of egypt page for that distinction doesn't go away const seven eleven nine through eleven the size of the system could be reduced further by etching the fixed rating or hologram directly onto a glass face of the mouse s l m that's the modulator dynamic hologram hologram device that's right honor but the glass face isn't the only part of the celeb again you're fixing it by etching it but you're not putting it in the s l m again like putting a weathervane on a bar you can put the two things together and yes it does make the system smaller but it doesn't eliminate the need for element number two it's still there and it is fundamentally distinct from element three both things are still there and if we're talking about a body it's a practice the claim your arms to look at that teaching in light of all the other iterations of the invention that are described and depicted in the specification one has to come to the conclusion that these two passages simply talk about taking two elements and combining them but not putting both into the first that is simply a misreading of this specification if in your view this column seventy nine through eleven lines and of the front of the single plate would be the much later but the back would i'd like to spend a few minutes on the issue of set of sanctions first of all if we look at figures one two a and to be this is precisely what was being accused of infringement in this case and there's that's never been contested below so the only way this becomes both are in the the spatial light modulator and we've got a prosecution history that's crystal clear that what happened during the prosecution was there was it just it was but a issue as to what the structure w