this case arises out of the district court we have one claim one independent claim which was asserted claim one the disc reportedly had six terms which we disputed the construction of and  one term the term program the district court in its claim construction order determined that the claim term program refers to it application software at the exclusion of must run on top of the operating system not the programs that it verified but your method is just so i understand the question in the context in which it arises and the answer is no  agree with that statement and i can address that right now if you'd like me to well i mean i guess i'm interested in that and mark is to lay out what i'm thinking it seems to me that the prosecution history lends quite a lot of support to i'd i'd have to think about that but that would be for remained in any case assuming you're right about the program unfortunately it's not an easy question to answer the way computers work and the different levels of software that are at issue ok so i can't give an answer definitively because there are different parts of the software in the apple q system to work differently but if i can address the issue because to be fair as we've addressed to the specifications the verified my past because the running on top of the operating system i don't think you did that's so let me put this in into context you're correct there are two pages and  everyone to reference the eight to ninety two through to ninety four after the applicant is making remarks traversing an obvious introduction then that's followed immediately by notice allowance of reasons for allowance in which are an application of the claim convention is an application the applicant the applicant took the position that the steps to perform the claimed method steps is a software license management application right at the true state but we have to understand the context in which that was made if you read the applicants if you start with the applicants remarks the applicant identifies two worlds with respect to the prior art we have bios level programs which are so is voice i'm sorry could you define what you understand with level programming mean i just want to make sure we do not buy a slot that's why the remarks about application are program ok i'm sorry when you say not biased level do you program which the examiner in the amp and said can be verified by this includes an operating system but to answer your question oh s level program this approach operates in software that operates above the bios level the programs which sit on top of that there if the applicant was not distinguishing what what you would what ordinary people consider applications like microsoft works out you would click on your ordinary experience he's creating the a cus to dividing these two get a chorus of prior art i was level and operating system level top now there was a remark in the context of that where he said software license management applications such as the present invention are operating system level programs not excluding operating systems but embracing them and the examiners reasons for allowance doesn't mention the word application he sa more specifically the closest prior art single singly or collectively do not teach licensed programs running at the o s level i meant to a three zero two the district court's construction excluding an to reflect a it was a good question and that ambiguity in the phrase operating system level or less level i i would think that there are two possible meanings of that one is at the same level as the old as and therefore not calling on the o s s and then the other meaning is at a level that calls on the o s like regular application is are those the two choices and if so which is the kneading that i used here those are probably the two choices the second being sort of the lay understanding of the first being what i would consider to be the actor understanding based on the record that the all s level is software op operating at the operating system intel patent prior to examiner says ms rowe runs at the operating system level and you words front of the bios level these are algorithms for doing different things but where they're running in the computer is what that issue here and the applicant came back with an invention which was the something at the operating system level communicating with bios which hadn't happened before it's not about our ordinary understanding of after page ari at some point in your relax just to put us in context the invention is verifying the computer program using data stored in the bios ms word did verify computer programs operating systems applications but verifying data wasn't supported by that's how we got around around this you know if i got to be fair before your time expires you could you comment on that to me rather telling point that the specification seems to use program and application program interchangeably short so i'll start by saying we don't we don't agree with that in fact i think the applicant when i was way to expressly and broadest aspect the invention provides for a method of restricting software operations it goes on to to capture claim want at the beginning of the summer invention the first sentence of the summary invention states the present invention relates to a method of restricting software now and the use of the term program is used five to one for the term application that isn't necessary subhas quantitative but the term application is only used three times and every time it's used it is specifically in expressly identified as an example the spec says i'm now entering column two line sixty the example above which specifically say an operating system is a program what i what i would do to say to the world this is an example it is not binding the applicant every time the term application is used it is expressed identified as an example also the details that the that that apple would like to read into this term application programs they show up in the claims they show up in independent clementi independent claiming he doesn't say program i g the time you want to use all that interchangeably uses program application programs software programs to mean applications and and nowhere discloses or teaches using the verification program to check an operating system this verification program if it starts after the operating system is up and first thing with dozens of checks the operating system and shuts it down if it's not doesn't belong in the computer there in column two which is on a forty five thus when a program is loaded into the memory of the computer a so called license verifier application that is a priory running in the computer accesses the program under question entire summary of the invention which this course that is where you look to find a present ascension is described in terms of an application so to be sure it doesn't that language would protect them from other kinds of applications and one described here but there's nothing in the patent suggesting that that boilerplate language is getting them an operating system and to the contrary in the senate on right on in the third paragraph of summary of the invention at line fifty three further is column one yes or i'm sorry further according to the invention each application program that is to be licensed to run on the specified computer so each application program according to the relationship between claim one and eighteen yes your honor so claim eighteen uses different words but claim eighteen is an independently and the doctrine of playing differentiation either doesn't apply is point is two independent claims are each describing the same invention using different words so we can assume application in one program and the other are describing the same thing i agree with the last part we can assume you're using the same word to describe program what the point i was making about me jeans is that it is it has other distinction from the other cl so one me not needed a difference in the word programs and software application programs in order to make them cover different scopes so on in column a and we put these out in our rebutting column eight on a forty eight depend from one and and they serve to distinguish this claim and this court has said on this often that people that inventors use the same words to essentially claim the thing thing and that's bolstered by the fact that there's absolutely nothing in the rest of the written agree with him about that of any contention that the verification software itself has to run through the operating system an already operating operating system and therefore and teaches nothing about how such a imaging with chat really operating system on which is running right so i guess i mean i'm interested in that because it seemed to me that there was a fair bit of support i don't get to a conclusion here but a fair bit of support for example in the prosecution history discussion and i'm wondering was that he does stink basis for either a proposed claim court looked to that fact as part of its rationale for adopting the program and we point to that fact as well we think that bolsters the definition of program and i would have to consult with my colleagues about the the status of the infringement contentions at this happening on a two one three in eighty nine ford is that there was a rejection over the prior art which showed identifying operating system at in the vial and in order to get around that they said we're doing something new and novel and that's the paragraph that starts on a to ninety four moreover moreover the present invention proceeds against conventional wisdom in the art using biased or application data such as that court judge that informed her decision and there was an explanation that o s level is is our applications that operate on an operating system so the operating systems up and running the l is going to be your windows manager your desktop stuff on which the applications then run to all the applications that run on your operating system and she is so it she said this is on page eighteen in course argument makes no logical sense nor does the record support the broad construction it proposed the nine pulling patent which is verification of programs which cannot functionally operating system is running while those programs may then operate the same sometimes it is no you don't know or sometimes it can serve as a secondary way when it serves as a secondary ram the experts blow agreed ours and theirs that the data remain the first selecting a program residing in the volatile memory if i'm going to build a build a machine using the hard the hard disk examples were just examples their expert admitted it was quoted there experts testimony that a hard disk can be used to supplement ram there's no dispute in this case that ram is volatile memory but if in the claims question of can serve as a secondary read which one and if it's where on the record it's the second one because we have testimony from apple's expert in our experts saying hard disk and  but i promise to patent applications and if we're here today to come up with a new flu body a law that says if there's a stake in a patent in a written description in an example that somehow renders a claim under one twelve to indefinite with no one in this case has ever really i'm afraid we've gotten off track because the the district court and apple are focusing on this relationship between an operating system and what the user perceives an application something you and your dept might see that doesn't come up in the in the patents in the prior art in the file history we're not talking about what starts first and what can run second doesn't the operating system have to already be running that's there's no war and in the interim director that says africa operating system has to already be running or the inventions it's above or below or to the side the only question on appeal is whether the program to be verified excludes an operating system and the patent office in the reasons for allowing said straight up yes a program at the operating system level and how that you know we all understand how that for the food the operating system itself  here very briefly just to go back to a good chance question about the virtual memory and to the extent that they have suggested that there is one place in the patent that might refer to it as virtual memory that could it be the way that it's referred to in the other two places and so it's just completely confusing totally confounding they never offered so if i could just explain that point so i'm in column in col