virtual machine has an ordinary meaning in the tech industry which is all about enabling computers trees run applications in languages that the computers don't understand so that developers can develop applications that are independent of the underlying computer and the second everyone agrees that our terminals of don't do that hard stop trying to persuade my clients and the entire industry to adopt a new virtual machine of the sort that i've just described but they all rejected it because their customers wanted applications that were communicating directly with the underlying hardware or an operating system the only reason that there is a verdict against my clients is that the district court magistrate judge horribly misconstrued the claim basically turning the patented invention upside down so i'd like to talk mainly about queen construction and then time permitting circle around to sufficiency to take a new start with what i think you understand is the most challenging piece of your claim construction argument we just it's implemented in software defined by the message processor that is not in claim one claim one uses a different look you should which looks at the problem from a slightly different perspective but it's not deplete it's not saying that probably can i have trouble understanding it but claim one refers to a message instruction means that is arranged to provide directions for operation of the virtual message processor so that's the means directing and claims the sad thing is about the processor the message processor instruction means being implemented in software that is defined by the message processor it's in one of the actor is the message instruction in the other the actor is the message processor second claim seven includes a make for a processor a clean one does not and then there is this third element no let me just circle back and say d i understand your the claim differentiation is often a problem at obviously as you've acknowledged it is just a presumption you go to the specification and see if there's a plain meaning in ordinary meeting and a meaning defined by the specification but i would also add and i'd this is not a principle of claim construction but this is a horribly and very sloppily drafted patent and it's not at all surprising to me that there are a points of redundancy but let me go back to the central point which is that the or is an ordinary meaning to the term virtual machine cardstock does not deny that there is at the time that this patent was written everyone in the tech industry was talking about virtual machines and virtual machines meant to everything everyone at least one thing the one thing that the magistrate judge eliminated from the claim construction and that is platform independence its portability of virtual machine is sort of like a universal adapter it allows the the developer to write a program or an application that is that doesn't have to be rewritten twelve times for twelve different combinations of the computer you simply don't write for the underlying platform you write for the virtual machine which sits on top of the platform and the virtual machine literally interprets translates courts have said that over and over again including this for the inventor himself set of untruths seventeen over forty seven that his invention is an invention with a virtual machine let me understand i think the virtual machine itself has to be written for each partner because that's the thing they connect but then the apple applications that are written for the machine are independent of the underlying part exactly think of it as well as i was saying before as a universal translator so the computer of the processor and operating system sit over here the virtual machine tips on top of it up course the virtual machine has to talk to the computer and in your view is that all commonly understood and are yes yes it's not might not just my view but the pattern says it  we have to read virtual machine to be something that's different than commonly understood in our guess that that is absolutely correct so i'd go back to what's commonly understood in the ordinal emphasize again we put we presented to the court this argument about what's commonly understood in cards op has not disagreed that that was the commonly understood meaning but i think the but to your point obviously claim differentiation is only a presumption is as we all know so let's go back to the let's go to the specification the specification actually defines the virtual machine it's right there front and center it's in column three definition of virtual machine that is different from what everyone else understood so line thirty four begins by discussing the key component of a virtual machine which is a virtual  processor ok in that virtual processor the next line says is referred to as an interpreter and it says that that interpreter that virtual processor allows programs to operate independent of processor which is to say independent of the underlying hardware processor with the newer technique of also adding virtual peripherals now the whole thing is called their virtual machine he component virtual processor a bunch of other bells and whistles not defined in this patent now it's called the virtual machine then it goes on to build on that on the on line forty a virtual machine is come peter program to emulate emulate a hypothetical computer different income paddleboat computers may be programmed to emulate the same type of pedicle computer any computer program to emulate the hypothetical computer will not be capable of executing programs for the virtual computer exactly touch users point that the programs are being written to the virtual computer this creates a complete portable environment for program operations so in other words it's not just it's simply not a virtual machine unless it performs that interest bringing that translating function of translating the application from a language that the computer doesn't speak into a program that the computer can understand and the damn condition of the problem in the patent underscores this the central problem that the patent described as to why you virtual machine in the first place is to make those applications cortical from one platform to the next and it says a column nine line fifty it is necessary to writ program in the prior art which is to say a new version of the same program specifically for each type of device the specification says that's inefficient that's expensive at least five times it says that the virtual machine is the solution to that problem and the specification says twice that those instructions that are part of the application never preferably never require translation processor the prosecution history only confirms that this is kind of the flip side of the previous case here you have the product of the examiner saying over and over can you haven't invented anything this is a virtual machine and cards off the inventor doesn't say no no no it's not a virtual machine he says yes it is a conventional virtual machine with quote an addition to a to a conventional virtual machine and that's one processor so let me just say briefly what the magistrate judge's mistakes were in and then i'll sit down and reserve my time for a bottle the central mistake with the magistrate judge repeated over and over again was to look at the patented invention upside down he kept saying apropos of judge uses point that because the virtual machine or the virtual processors which sit in the middle can communicate with the computer with the underlying platform therefore the application that comes in at the top much also be capable of communicating with the computer that's exactly wrong it's exactly why you have a virtual machine to perform that interpret ng function and if there are no further questions i'd like to reserve the remainder of my time for a bottle  about it's talking there about a conventional virtual machine and it talks about what is the incentive for machine to come down the prosecution history as well as the inventive virtual machine with the idea of separating the processors it next to nothing in those paragraphs that he talked about as to what language the processes are written in it says nothing about what language applications are written and it does say that you should be able to use an application that's the emulated the limitation that the application of the virtual machine can run on computers that have different incompatible hardware or operating systems their devices do that it came out in testimony from their fact witnesses it came out in testimony from their expert their devices do exactly that we had their mystery story of fact with an e mail that he had talking about a virtual machine that vera phone developed so applications would run on the nervous system and the various systems we showed the porting manual to their expert which would help if that's the case fire why work for making infringement arguments instead of this claim constructs an argument it seems to define virtual machine in a way that's contrary to everybody else's definition for college because what they call the conventional definition of virtual machine was clear in their opening brief is that they want to separate the processors from the applications and so the processors would be written in one language the applications written in another the problem is the claim virtual machine requires the applications of the processors to all be a part of the virtual machine a conventional virtual machine is not that ok this is different you can't write half of something in one language and half in the other language if the virtual machine embodied in the mentioned it's not really the subject of the claims of what this process i think it's all about what the definition of virtual machine but the portability idea that was never the problem that was solved in prostitution the invention is being prosecuted here we're going to have two separate processors that's what gave you officials to make these devices work better in fact made them work was effective separated out message processing function processing right he's a little devices that little change particularly back in the mid one nine hundred ninety s they were not allo device if i really don't understand then why you're using it the importance of that is you separated out different processors why is intervention using those separate processors in hardware dependent languages nothing to do with virtual machines i think it covers both part of what i mean back up if we disagree with you if we think virtual machine is a term of art it suggests the machine itself is written independent language but any applications that run on it are independent while that's that and that was actually to the sufficiency of the evidence your honor but again i do disagree that there's an ordinary meaning here i think that the language of the specification says what is meant to be a virtual machine it doesn't specify one way or the other as you pointed out already the dependent claims make it clear or should making clear that that requirement of a hardware independent language is not a part of the broadest claim or else claim seven does become redundant because the first limitation about the message instruction being being written this way and then those are really the same thing the only thing it might add is a microprocessor but let's be honest all of these devices are computers that have microprocessors and that's in this back and think computer program to emulate a hypothetical future would i like to look at th it's like windows is a virtual machine in this respect right works on an acer computer look over a computer up to the back of the puter but to you the user looks exactly the same doesn't matter what the language is that it's written in that matter what language the programs are in the works on windows compatibility their devices have different microprocessors that their witnesses admitted were incompatible with each other they had they argued that one would never run a program on a day out but we were able to show that their own document showed in fact they had programs that would work on these two different devices machines i don't believe that the job of virtual machine is an all encompassing virtual machine there are known virtual machines that do not act the message processing interface is a is a process virtual machine known to the art which is compiled to the native code of the device has virtual machine to mean a universal portable language so apps will fly to every device and that's not even the common understanding of the term the job of virtual machine had that feature but that's the job of a product it's not what people in the art understand  where's your evidence for it's not and that evidence is not in the record i'm sorry i don't have anything independent says to those other virtual machines that don't operate this way and i ask you this question there was a discussion a few minutes ago about what the proper disposition of this case on appeal would be if we thought that the virtual machine definition construction was wrong did you argue in your to a new trial as opposed to the proper result being non infringement as a matter of law as that would be a deficiency of the evidence where we point out i don't say if their construction is correct but i think our description of the evidence that we put but i mean if you then go on to the next section about card soft property sufficient evidence to show that you devices can be laid a hypothetical computer which is what the definition of virtual machine is even under there to emulate the hypothetical computers they just say with instructions an independent laying a different limitation on it i think it goes hand in hand because of anything that talk about portability it's this anyway thing it's this idea that we can have more than one divines that runs the same application and looks the same to a user as far as the user is concerned it doesn't matter relate to the argument if we change the claim construct the data all in front well if there if you change it same construction the argument that they don't infringes our applications are not written in an independent software right they are each written specifically for the trial the best i can offer was page thirty two that is the evidence proffered by card soft showed and still does that accuse device or program to be capable of running the same program even though they contain incompatible hardware meaning that program is  but you never house for well i don't think you have to say you win anyway i think you have to say you wanted a new trial but you didn't even say that no i did not express we asked for a new trial if you reverse by construction let me work backwards first on relief such tranter as i choose to put your finger on the on the point its weight and they mean that we argued explicitly that the claim construction they cannot prevail under in their brief they pointed to nothing that allows them to prelude prevail under the clean construction and specifically that language if correct the new language that it has to be capable  of reading instructions that are independent of the platform page thirty two is an insufficiency argument is a response to our insufficiency argument which is premised on their claim construction the record is clear set of page seventeen to twenty seven and their own expert cole says that vera phone terminals are compiled in native code that is another way of saying that a dispy king of the language of the underlying computer seventeen five thirty four risks already also says the same thing moving back to claim construction judge hughes again i think put his finger right on the problem why do you need a virtual machine why would you ever insert an adapt or an interpreter when the when the application is speaking the language of the underlying computer you never would if i if i had an interpreter standing between me and the bench i'm speaking in just briefly respond to the way i'm a little fuzzy a virtual machine is it a particular term and certainly the java definition is one that your friend pointed out that there are other the inventor himself invoked in article cited an article that describes the job of ritual machine and secondly the inventor in the examiner are talking back and forth about the job of virtual machine the patent that the right there's a we've got a conventional java virtual machine we're not distinguishing it from that but we've added something that's the new innovative thing which goes to the point that mr mignon message process and the message processor  is is basically just a must take on their part to have grafted clane one to put the message process there under the virtual machine no i don't know the consequence of my question but i just know you're out of the  virtual machine there describing the various ways in which this particular virtual machine works they take as a given that a virtual machine does some translation and here are the components of a virtual machine it is a it has a has at least two virtual processors the virtual function processor and now this is our great invention we've also added a virtual message processor so they're saying in at least prosecution this is the thing we added an additional processor but they never say hold on wait a minute it's not a virtual machine to begin with so it doesn't need to be the sort of thing that does the interpretation  last sentence and that is just because they have identified an additional problem that their patent solves doesn't mean that all of the language in the patent about solving the portability problem goes out the window with respect to the definition of virtual machine if there are no further questions i think the court for its attention and we respectfully request that the court reverse and enter a judge of nine and three thank