right if you are i am late may please the court the proper construction for the term focusing in the five nine nine patent is causing to converge in at least one question is whether your request or construction here came too late years years after the mountain here and as i read the district court decision he said among other things that the request was on time and why did it why did it take two and half years to come up with this construction apparently you were aware of the issue long before you actually has for the construction whoa w use for not only earth what matters is that there was a construction there was a mark in hearing there was a briefing there was a briefing on the construction just try your to the second trial and when the court under trial you were aware for a long time that this difference between the parties existed as to the construction and yet there was no request for the plane construction that you're now urging on  didn't ask for construction we didn't ask for construction because it was true late for mystic that to try and now argue the scope should be confined and restricted to something other than the plain language in th causing to converse not the same thing as an asking for the coin construction to be change we're talking about our claim construction usually adopted the market here which is going to govern the proceedings and didn't do is say please change the claim construction to read this way yet at that time it connection with summary judgment prior to that time the the term focusing should be construed in a kind to make that was the idea of causing to convert stop period that's the at her and then you had your own preferred conception of what that met and your preferred conception would be that as long as there is some kind of virgin going on in a single dimension that is good enough but that is not what you actually argued for for your articulated preferred construction or construction was nothing more than the broader basic idea of converging is that a fair understanding that that's not a fair understanding because ok where in the record did you say for your markman that you wanted the we're focusing to mean focusing it means converging in a single dimension that is our proposed construction that's what we want you judge to adopt as the articulated claim constructions for the word focusing where is that it it's  jury is charged in terms of the construction it doesn't help anyone to argue that construction means something different than what it is unless you asked the judge to specifically change the l focusing as the term is used in time twenty four is the plan in ordinary and then at the top of twenty eight one fifty four the line to plain ordinary meaning of focusing is to bring back to a focus causing to converge period  didn't my point is and this is where we started with judge day at the very beginning of your argument we were asking did you in fact argue for just a single dimension to be included in the construction of focusing and you said yes and then that's why we've been down in the past nine minutes trying to explore that now to see are it's not it never was you didn't ask for the construction to include the words in a twenty sixty is that fair to say we argued no construction it's too late to assert the defense based on some interpretation of this work that's correct but we also argue summary judgment we said don't do it don't allow this ok let's have the system not particularly productive let's assume that our view is correct and that you didn't ask to have the actual construction changed to the court's rejection of that that late in the proceedings so put that point she decided that she would construe she decided that she's going to take this term focusing and construe it and at that point we have timely to raise that years after the market in twenty sixteen because we were are you in for plain ordinary meaning in the context of this patent there's no need to further restrict converge and in fact and in fact the dispute was whether the scope should cover as broad as you would articulate based on the meaning of causing to convert focusing or converging in at least one she had to do a construction there was clearly a dispute only over the scope there was no dispute that the potus converge they in fact admit there that their product convergence the dispute is over does the converging two to achieving a long getting signals which you do by converging the light the claim refers to be a long way for the purposes of the focus is to in fact converge the light to get the elongated signals and therefore given that the patent only describes to my arguments where there one dimensional focusing they converge in one dimension even if we were to reach the plane construction question and agree with you that focusing basically means convergent you don't have anything in the spec that actually describes what does it mean to focus the wavelength signal itself as judge below in trying to figure out what does it mean to focus the wavelength signal as a whole can it be enough to just focus in one dimension even  if there is a magic crazy amount of divergence in the other dimension should that be enough to say that you have accomplished focusing of the signal itself i think there was nothing in the specification that said one way or another which i can understand why it caused her to provide something of the limited construction rather than the kind of very very detail construction you wanted for the wavelength signal itself the specification only describe while the claim language says focusing you know two cheever into a series of the longet it signals the language of the same in both claim one claim twenty four and given that claim one restricts the focusing to one particular dimension and given that the term focusing asked mean the same thing in both claim one can claim twenty four by default is the longest were interpreted the words the same when we are focusing two different objects in the two different claims one is focusing a particular dimension of the signal and then the other one is focusing the signal you're so there's there's one the first one is an aspect of the second on the other one is the entire signal itself that's the trouble the judge had that's dispersed wavelength signals if the same language in both claims it's focusing in their particular dimension and claim one of the wavelength signals right so it's a particular dimension claimed twenty four unrestricted no restrictions on dimensionality therefore it should cover both focusing in one dimension or focusing in two dimensions that's actually the best intrinsic evidence that we have that i'm not sure of the that's the correct construction of claim one it talks about dimensionality therefore it should be given its full scope in other words it should cover focusing in at least one dimension another one dimension focusing or hope dimension focus on what we are in the specification as it say you can accomplish reason why you didn't why the trial wasn't about claim one may claim one we wouldn't be having this debate this claim one specifically says focusing in that angular dimension that that plane was taken  right but we wouldn't it looks almost the same as the eggs asserted claim twenty four except one says focus the entire signal the other one just says focus just in this one dimension yeah what it says focus the wavelength signals it doesn't to cover the embodiments therefore that claim has to be broad enough and water than plain one explains one quick question comm five this environment between lines fifteen sixty and talks about  like starting at one fifty one spectral components are focused on the x dimension and then the following sentences and then upon return the spect that's in the other component of course there's focusing in various elements with respect to return through this lens one thirteen it's teaching that we focus by converging in one dimension to make the the other dimension is collimated it's contrast ing of wait wait wait wait i'm just trying to understand the words of this backed why isn't it telling me that you're focusing in the x dimension said the words right there after it's all it happened at the first trial we had a mark on proceeding never never throughout this case not during markman not a summary judgment at no time until after the first trial to finish our asked that the construction of focusing the angerly disperse wavelength signals include in that construction which would be the jury instruction that this requires focusing in only or at least one dimension that's when they first asked for  think identified that really is not the way to run patent cases to have district court judges on the eve literally days before going into a second jury trial what are we to do if she actually did issue a claim construction and then instruct the jury on that claim construction or are we differ ten that didn't happen it should just somehow be ripped out of trial no no you're not so we're going to stop with the construction right she did give a construction we believe it's the correct construction under the circumstances we think that the arguments that she was required as a matter of law under oath to micro and so forth to address the issue of one dimension versus two is any correction even of the laws applied well i suppose that the original markman hearing this issue had been right wouldn't she have been obligated to resolve it then she would be obligated to construe the claim at then or at whatever point in time she was to construe the cla the question of whether she was required to decide whether focusing the angular dispersed wavelength signals had to be had a dimensionality requirement that she had whether she would have to say it requires one dimension or two dimensions she never had that being satisfied by focusing in the single direction would she have had to resolve that point no your honor not interview and the reason is because there's the specification itself the claim itself the claim this claim speaks of focusing the annually dispersed wavelength signals right the entire signal on that type of claim that is intrinsic evidence of what this claims actually require and focusing it's completely appropriate and i believe correct  she would have said i don't think this claim includes a felt that would be satisfied by focusing only on a single direction that it's going to is directed to focusing the near the bottom of the page line twenty six judge freeman says quote the specification of the five ninety nine patent never clarifies whether focusing occurs in one or both dimensions and the claims only indicate that focusing produces a series of the long gated spatially separated wavelength signals and she continues on the top of the penned externally three given this ambiguity and taking the plain meaning of quote focusing in in this context it is not improper for the court to define focusing on a higher level rather than make a specific number of dimensions outcome determine it further this does not exclude all disclosed embodiments so am i to understand what dimensionality yes judge and in fact she tells us that appendix twenty one at line fifteen this is also her jamiel order sheet she says quote both parties supplemental claim construction br addressed whether focusing required convergence in one or both dimensions the court carefully considered these arguments and chose to adopt a higher level construction that address the wavelength signals as a whole as opposed to  particular dimensions sure that's appropriate i mean i think if someone says this claim construction requires a wholly on one direction in one direction it would seem as if this were properly raised at the martin hearing came in and said judge construe the claim such that it would be satisfied if focusing occurs in in at least one dimension the judge in deciding claim construction said there is not evidence in the specification to support that construction therefore she construed the term focusing the a listers wavelength signals as requiring focusing the entire second type what the problem is a plane construction is not supposed to be are you to the jury what she did was to create a situation in which the parties were allowed our new plane construction to the jury that's not supposed to happen that's not the jury's job if this had been raised in a connally manner i think she probably had an obligation to tell the jury what the construction was so th parties wouldn't be arguing about when construction and jury judge mystic agree is the claim construction should not be argued to the jury but we respectfully disagree as to whether that occurred here the judge construed focusing to mean making the wavelength two dimensions and so forth if there's no if there's no evidence of that nothing to support that in the specification and just require a judge would be well within her purview to look at the claim and say the claims of focus this claim claim twenty four as opposed to claim one which says you whether it is not directly to focus in one direction it has to look overall and that's the appropriate question and then you don't get this situation before the jury where one party is saying well it satisfied him and one direction that wouldn't ha under this claim construction that judge freeman gave a party could prove infringement apart for infringement could occur by focusing in either one dimension were two dimensions that's what she said this claim this claim turned to a twenty page thorough declaration of an optics expert dr buse in princeton ph d fifteen year professor in optics who said that there's an understood meaning of the term focusing in this field in the field of optics that it means making clear how that could be accomplished she said as a factual matter it could be accomplished by converging in a single dimension it could be accomplished by converging or another optical function in both dimensions that is that factual dispute for the jury to decide whether the wavelength signal has been made clear and were defined by this optical she determined that she would not resolve that fundamental to stuart as to whether the plane should be broadly construed to cover focusing in one or both dimensions as in a star was proposing or whether  should be allowed to argue they have a defense because the scope should be restricted she decided this she will leave open to the jury that's where she ran afoul of the two micro it now gave the part particularly mr the ability to argue they don't infringe because of what the patent sets the only dispute was over what discloses and describes there was absolutely  over the function of this lens this optical power element in the issues products we all agree it converges in one dimension with respect to the other dimension we agree it's not converging we agree there some small amount of divergence the only ability to argue there is no infringement is arguing over what the scope of these claims say and that isn't made more clear then in the closing mensions that's play construction and that's in error because the specification teaches focusing in only one dimension in both environments the other dimension it teaches collimation so the only dispute was one over clean construction she decided she would not address this issue and she's now going to let the jury decide whether or not there is there was a friendship ok if it were thank you very much