in the southern district of new york and the trial will of destruction differs on several issues from judge roe by its claim construction at least three issues and i should note that exemplary environments for different uses of the special exchange including what we call the any available telephone embodiment which is disclosed in figures one in three but there's nothing in the it has to received a special code nor to verify it and the calling party cannot input the special code to especially exchange because it is separated by the pay go telephone system so the calling party has to input the co into his telephone and then the regular telephone system has to import special code into the special exchange so where it says we claim twenty three including a special code and then later when we  yes well but why not with respect to anyone who is judge proces asking the and i have the same question that the twenty three d limitation in putting a special co as appears to be something that is done by the user by the calling party right and is required to be done by the calling party and that it's confirmed seemingly by the language  put it by the calling party and in the right that's right right now the question is why doesn't that why isn't that exactly what the district court is saying when the district court says that you enter the special code as the calling party each time you contact the special exchange in order to make telephone call or a series of telephone calls w apply to all body moments necessarily because that language is mandatory language in twenty three in other words put it another way describe for me the your concept of how the special code is entered by the calling party in a way that makes the district court's construction unduly narrow the calling party could input his code as part of a replenishment process and then the value of the card would be stored in memory and then later the user would call the special exchange when he wanted to make a phone call and he would no longer such as his telephone number or a person who has a home telephone need there is a prepaid calling service where you buy a prepaid calling card and you have the option of calling up the exchange and getting the card search your home phone number so very after it's not necessary to enter the special code when you want to make a call you dial especially to change you need not enter the special code because the system recognizes your own phone number as register saying i think but when you look at the language in each i mean i know there are twenty obviously the twenty three claims here where this is the one the only one edition how are you getting that from i mean east seems to be quite narrow and quite specific only at the special code i mean it seems to absolutely require that the special code be inputted by the calling part otherwise you don't get connected to the call part and my misconstruing what he says you know but again if you are going back to d d d d is not so limited it doesn't say the calling party including a special code so input especially code should be construed broadly enough to cover regular telephone system inputs a special code to a special exchange and then yes indeed one of the preconditions what about the other part that it says in putting a special code and a number in you saying that the caller doesn't have to input the number of the caller on the same argument caller also has to input the destination telephone number into his telephone and the radio telephone system also has to send that destination telephone number to the special exchange if especially if change is going to route it further so they both both made a machine have to do it at different stages in the process and step d is just doesn't say does it doesn't say what those covering whether it is the person or the system so your concept i take it of claim twenty three is that it would reach a system in which in january i sign up for this service and i put a thousand dollars on of credit for my calls and then at that point i would have to enter a special code and i have to do it once and once i've done it i hang up i go away and come back in march june september and october and each time i dial the number i first dial into the special exchange but i don't have to dial my code because special exchange recognizes my phone and i just dial the number of the party that i'm trying to reach and that constitutes including the special code was done back in january right death and the space and the number of the call party is done and october are june or march right that is conceivable number but that would have to be your view as to how this claim twenty three would read on a system in which you don't enter a special code every time they use the s y s you points you registered your phone number with the company well every every time you bought a card to it after registering your phone number but it's not just registering your phone number you have to actually enter the cup but you have to enter the t mobile's office and they asked me would you like to sign up and then enter my phone number than they would in french right because they haven't i haven't entered the special if the sales representative wealth is the auction where the calling party does it and t mobile doesn't do it but if you are in a t mobile store and the sales representative does it for you well the problem that i have principles problem that i have is eat which says the special code inputted by the calling party and the problem is if i go into  it please the court and shannon just representing t mobile unless this court reverses all five of the claim constructions upon which our intel based the stipulation of non infringement the summary judgment of non infringement must be  therefore as the court noted at the outset if the court finds that even one of the district courts constructions of those five terms that's correct were done and what judges should which are best one well i think we've got strong arguments on all i'd like to focus two in particular dining said special exchange including the number of the called party but before we get there i did want to respond to one point that and i'll tell i believe was making in their argument sensually proposing that the telephone number of the subscriber could be substituted for a special code we disagree with that aerotow disclaimed and prosecution at eight to seventy three which is the original and then in response to office action that the special code could be a subscriber telephone number that that simply is is not possible and the reference again is a two seventy three turning to the dialing step that weird the just reports claim construction there is some divergence in the construction of diamonds that special exchange the washington court construed that term to mean that the calling party enters the telephone number of the special exchange by dialing the number on the telephone the construction by the new york court was that the party makes a connection or a telephone call to the special exchange certainly we believe and i will add though that the southern number so there is a commonality between the two certainly the requirement that there be a telephone number that can be accessed from any available telephone is consistent with the district court in washington's construction and era time is not appealed from the construction of special exchange in the washington court and thus is bound by it the district court construed special exchange as a as consisting of a telephone router computer and memory that is behind the local exchange and can be reached from any available t the construction that area tel proposes ignores the plain meaning of dialing and it ignores the fact that every single reference in the specification to dialing said special exchange referred to the calling party picking up the receiver of the telephone going off hook and dialing the telephone number of the special exchange in the specification and a ninety six the general description of the invent teach is not in reference to any particular embodiment that the customer acquires a special code a credit amount and the telephone number of the special central offices this is at a ninety six column three lines three through six and there are additional references in that same paragraph to the customer receiving the telephone number of the special exchange continuing in that paragraph at a ninety nine eighty six column three lines eighteen to twenty two subsequently their to the acquiring party wishes to make a telephone call he the outset why is that that kind of special service in which the inputting of the special code is done the outset is outside the scope of line twenty three because that you are getting there so i don't want to cut your throat and that if you had more to say on the diving shoot but but if you did if you were done with that i want to do it i did want to point out one point in connection with the dialing issue and i believe that the statements that aerotow made to distinguish safire reference during the reexamined handset the safad device returns a dial tone to the user without the user having to dial to the device an arrow tell underlined that portion of the specification that's not with respect to  a particular embodiment covered by claim twenty three that's distinguishing claim twenty three over the prior art and i think that's the end of heritage argument in respect of turning to the the district court held that twenty three d which is inputting the special code and the number of the called party both must be performed by the calling party and must occur after steps twenty three eighty three twenty three c looking first to the claim itself is your honor dead step twenty three d requires inputting a special code in the number of the called party and there certainly can be no argument but that the calling party must input the telephone number of the called party and then step twenty three explicitly refers back to the special code in put it by the calling party the specification is entirely consistent with the district court construction for example of a nine hundred eighty six call three line seven hundred thirty one the general description of the invention no reference to any particular in body and describes a sequence for the part the calling party wishes to make a telephone call he uses the nearest available telephone removes the handset the special central office and when he is connected to the special central office he dials the identifying code and the called number he wants there is no mention of any temporal gap between steps and there certainly no mention of being able to in sees me input the special code in may and make a later telephone call in june and he expressed reference of course we would be here if there had been but one means why is it that the an argument such as the one made by mr flaherty with respect to the timing issue is timing as in as in my example in january you enter that special code and once you've done your triggered for all the calls that you make during the year as long as your money has first for starters twenty three d is drafted as one step combined in the same step is both including the special code and the number of the called party and there's no precedent for clearly if the patentee wanted to split that into two steps he knew how to do it and he didn't do that in plain twenty three further when you look at the intrinsic records both the prosecution history and the the patent he repeated least referenced that same exact sequence of steps there was no temporal break between dialling the special code and then in short sequence including the special code it's easy dialing the special exchange and then in short sequence including the special code in the number of the called party and respectfully if even if the specification were broad enough to encompass the construction that's proposed by eric tell and i believe that many reasons we've stayed in our briefing that it's not the intrinsic record for clothes it's not because we have to look at the claim as it would have been interpreted by the inventor not looking just at the claim in the specification but viewing those in the context of the intrinsic record one example would be in the slide presentations the erato submitted to the p t o where arrow tell shows in graphic form in a very specific sequence of steps one two and three dialing the special exchange using a telephone number from any phone including special code and in putting the number of the called party that's the same sequence that is depicted in figure a figure one of the patent a ninety one it's the same sequence that is described in input the special code before each call as long as those sequence that sequence of calls all occurs before you disconnect with the special exchange correct correct and picky is th the specially trained that i understand it that way the claim construction was drafted restricted in terms of connected to the special exchange not in terms of connected to the called party correctly and in fact if you look at figure one of the stand as a counterexample to the proposition that d is necessarily the two parts of twenty three d necessarily go together in all cases because that would be in the third or fourth call that would be an instance in which you would not be both inputting the special code and in putting the di in the number of the dialed the cold part right in that instance step twenty three d both part the sequence of culture right that's correct and in fact both we and in the southern district of new york case the telco defendants have taken the position that at best claims one claim twenty three would only cover the first call that's made and there are other three except for the first call not that a not on a based on a narrow reading of the claim i think the broadest reading of the claim that would be permitted would still require that steps a b and c still be accomplished before step d takes place that the patent simply does not contemplate a temporal disconnect a hanging up from the special exchange and then being able to somehow make a call again without repeating steps eight through c and certainly that's not depicted in figure wine and even in the replenishment example which is not covered in claim twenty three that's claimed by at best buy claim seven twenty one which depend from claims one and nine and if you're still remaining connected to the special exchange there's still no disconnect party had once entered a valid code and was never required to enter it to the special exchange again for validation there would be no way of knowing whether that code was in fact still valid and that would defeat the purpose of the invention it doesn't make any sense because impossible to do it all in one step it's you have to enter the special code then you have to enter the destination token in three of two steps you have to be done in three different times it's impossible to do it at the same time  tire and that would be perfectly sensible to have a single as a single limitation but just we will have to be done after you jack the car up right brain before you drive off if that claim twenty three was not so limited the preamble does not mention any available telephone and that's had a one two two zero in the appendix in the patent office in action in the second reexamination acknowledged that claim three to the preamble it was not limited to any available telephone making calls from any available telephone and that's had a one to five six and the judge  and also if you look at figure one of the patents actually i won't charge you for this time it technically reply it's supposed to be a line in arguments made by the other side  monitoring seems to me if i recall correctly me i may be wrong but i don't believe that was mentioned in the paper in the athletes but go ahead i will give you a little extra if you have it in for we're in the regime with the davis davis can accept applies we have to follow the law there it seems to me that what you complain about is the way the special master two hundred twenty dollars is that correct well very much when it's not that not the way to write bad it the situation is that there has never been a  the basic law shit down by the supreme court has not been imported into the vaccine program and that there has not been a proper market determination or or relevant community determination special master was in determining again doesn't come in his determination of the two hundred twenty dollars rate because you're saying the special master went about it the wrong way well no tribunals anywhere that i know of is allowed to draw irrational inferences from the evidence much less make up the evidence this special master had no evidence before him what so ever with regard to what the market rate is cheyenne i don't accept the evidence for that i'm sorry i thought you started by telling us the evidence was overwhelming so you're over the evidence was overwhelming that it was government in defining the federal practice market between wyoming and washington d c and indeed everyplace else the don't understand the best evidence of the federal practice more every where in the united states has their locality and rates that are paid to department of justice attorneys among other people a year there they're making what fifty dollars an hour they make eighty seven per cent of what washington d c attorneys make i would therefore be willing to  eighty seven percent laughing matrix rage because the people who do federal practitioner in washington d c under every statute usually term reasonable attorneys fees receivers  rates for pay of federal employees including i might add judges at pretty low numbers that is not something that i think i am let me put it this way in the in the  the age i don't think you want to go there well imagine the situation where usually the logic of this case and the advertisement for vaccine attorneys in the department of justice was put out saying vaccine attorneys wanted limited skill set needed and those who turners were paid less than other federal attorneys that is what this situation in this situation purdue case and from the united states supreme court said that my burden in order to get and they've just made as it were actually i'm i'm earlier in the process because i just want the rates to properly to begin with but mightn't it it should be a distinction without a difference between setting the rate or adjusting the rate and justice alito wrote in the purdue case that my burden is to them to fight a factor not taken into account by the lodestar and me in this case the factors that have never been taken into account in the so called lodestar which is simply what our first tranche of rape lodestar is not a very helpful term but the thing that has never been taken into account in vaccine delaware valley two it was a there are actually two cases in delaware delaware valley and the second one talked about whether or not contingency easy and cases should be compensated with an enhanced one for r do saying that there should be some kind of a special production vaccine and you know i think i think we should be entitled to get what people get in washington d c for doing for it cases i believe that we should get what people get in washington respectfully disagree with the assertion that this panel can't can't do anything about of their up or that or the product from the from the application of davis county that was essentially  practice market a complex federal it basin market which was not reflected in the gym merrick local rate that was awarded to an affair ok but it was i think the statement comes  financial that was state court practice and that was practice on retainer that was practiced where i got paid that was practice where i didn't have to wait six or seven or nine or fifteen years to get paid for my for my efforts in federal law that is not countenance a hardship on council federal law calls for rapes that allow council to be effective