morning may please the court my name is christian hurt and i'm here this morning on behalf of north the district court in this case aired when it improperly narrowed the register story and means plus function terms in this case i'd like to focus on the register in story terms and time permitting move on to the needs plus function issues of course i'm happy to answer any questions only asked with rational which is tickle question which is in my correct  case is over a part of the register issue is this explicit register notion those are independent grounds the means plus function issues however if there is a reversal on the register and story  to the register issue with regard to that term the district court committed three errors each of which flow from the prosecution reads a nation's history it's of this patch on the first  prosecution history disclaimer according correctly concluded that north beach had disquiet and registers the wrong body and random access memory ram or buffers or regular memory for the second issues the court carried that understanding of the term register into how it read the fourth edition of the microsoft dictionary the north excited as an example definition of register in the reexamination and then third  its claim construction necessarily exclude ram and other memory but if it's simply just the top to the version of the microsoft dictionary definition so that the court resolve this matter of law as a matter of plain construction and ram regular memory buffer are excluded outside the scope of quite but in the formal jury charge the would have gone to the jury had this case proceeded the court the dr the language from the microsoft dictionary definition the fourth edition the north side is an example definition of a register in that second reexamination but the issue is resolved as a matter of claim construction that that definition as wasn't that issue is resolved as a matter of law and the courts err on those two fronts was was twofold first and the reexamination history north people proposed the exact same definition to the patent office that it proposed to the district court designator specific portion of memory and the patent office actually adopted that definition and the district court should have as well we had evidence in the rector that in one nine hundred eighty eight when the pattern when this patent was filed those of ordinary skill in the art understood that a register was really just a device within a computer processor capable of retained data address in the regular memory would not anticipated claim convention and so could the examiner you know accurately understand m in that response north people posed a definition of a specific or designated portion of that phrase that's what a register is and the reason that's important is to understand this sentence that had stored information such as a or address in a regular memory would not anticipate the claimed invention because regular memories and this is all of the stanchions they were made on dixon and con and messenger is those general memories that are not designated for specific those are not registers but there is no exclusion of the type of way you construct memory whether it's read or memory buffers or microprocessor memory if that memory is sort of cordoned off as if it's specific and designated for something it can be a register and the diction in qana references only disclose general packet buffers that are not designated or specific if you look at  so what i'm seeing here in the prosecution is categories ation in different places of the store data by by vocabulary there's something called a memory of ram and there's another thing called the gravest area and i see what you're arguing now and something a little more nuanced than than what i see in the prosecution well i think first memory so if your honor is reading the statement that from the prosecution is true that there is a distinguishment between registers and memory that that is improper because memory is sort of the genus and i would almost that that isn't what happened here because the proposed construction of register the north if proposed and this isn't just one the north p proposed the examiner adopted in the notice of allowance makes a distinction between designated and specific verses i'm designated so the more apt analogy is you know the prior art references here disclose a different type of species and designated nonspecific and if you looks at the references that's what dixon and con shows just one black box that holds everything it doesn't tell you if that is is cordoned off or the preamble the address of the data and that's what is not a register but that a register is really any type of memory so long as it's designated or specific and i think you would be a harder case for north bay if xander didn't express we adopt that construction in the notice of to issue the reexamination certificate and if north people did not propose that express construction to the patent office if this were a situation where all we had was some of these statements that could be taken out of think one of the ordinary school would read that that history and the designated or specific language is that it's a court so there is this second issue where the registers need to be considered explicit or as the courts sort of dedicated or as the defendants say explicitly reserved and dedicated for all they do in this one function on this one type of data for all time however quote the north peak in the reexamination linked the designated or specific region of memory language to the earlier statements the examiner made about explicit registers and that follows because we have three claim elements here a preamble register an address register and a data register and the specific or dedicated portion of memory language really captures what north think in the exam or understood the explicit language to refer to not that these registers had to be dedicated for all time reserved for all time and can only be used for one function but that you just have a designated or specific portion of memory and so the court in rejecting our construction of explicit and rejecting our construction of register improperly added that gloss onto the claims and that's that's shown in north piece response to the first office action specifically in the claim construction section it's on appendix six eighty five and six eighty six in proposing the construction of a designated or specific region of memory north peak sites for support that there are three constructions that judge will stand for right that anyone if we had it would allow the panel to affirm across all of these sort of claims that would be the definition of register the construction  preamble address and data registers as being explicit and then the construction about what it means to have a register still for information the the patents did expire in two thousand and eight of a few months after intel intervened the patents were put into a reexamination because there were military pieces of prior art that involved spread spectrum systems where preamble address and data were assembled in memory and then transmitted along the the military applications involve very large packets in the thousands of bits the packets that are described store a lot more information in order to send the packets are premis in our petitions wise because the accused products also use just memory you know order to assemble the packet pieces this  on the prior art was to double down on the definition of what a register is the claims refer to registers a preamble address and data register and they argued that in the prior art you didn't have that kind of explicit register structure judge wilson's definition of register or construction of register is taken from the microsoft computer dictionary definition that the north peak patente submitted during reexamination a couple of observations about that dictionary definition compared to the i triple easy dictionary definition first it is intrinsic in the sense that it was put into the into the record during reexamining middle of the case and it is specific on this distinction between general or regular memory and what a register it looks like inside of a microprocessor which is what the patent discloses and seeks to claim the principal difference is that the microsoft dictionary  points to it and which were used by the patentee in order to overcome the prior are included it's a small name to region of high speed memory and then critically that you reference it that programs reference it by and name instead of by an address in the in the file history when they got to talking about their specific reasons for why the prior art was different from what they were claiming they did say that they proposed this construction that you needed a designated and specific region of memory but in the very next sentence they go on to say and that's consistent with the way a person of ordinary skill in the art would understand the definition then see for example the microsoft dictionary definitions so we have the patentee making an argument and judge alston agreed with this that a person of skill reading this patent would understand a register to have those attributes that it would be small in name that a program would access it by the name instead of by an address and that that ended up being the way that they argued that these military systems which used general mammary didn't satisfy the reach of the claim i'd like to highlight for example the the  you by the examiner argument there are a couple of things to note about this argument summary it is a little bit more specific than those summaries are sometimes but it also notes that n lawyer mr mary berry came with a fairly extensive set of slides and they walk through the argument and this microsoft dictionary definition gets cited by the examiner here he says more specifically the term register has been explained to have a soon as if things have swung to the yes i'm sorry appendix nine thirty four more specifically the term register has been explained to have a specific meaning which is allegedly has not been taught by dixon in com the term is commonly defined as a small named a region of high speed memory located within a microprocessor and then critically the next sentence accordingly mr mayberry submitted that register cannot be any type of memory and storing information such as a preamble or address in a regular memory would not anticipate the claimed invention when a preamble or an address or the data portion of a packet are in a regular memory they have specific memory addresses the computer needs to have those memory address this in order to know where to go get them but that wasn't the specific and designated portion of memory that north peak was arguing about they were arguing about the kinds of registers that you would see in a microprocessor where you have a name that a program can use to go get it instead of an address where you got to go decode the address and go find where it is in the memory to pull it back and i'd like to turn if i could just briefly to  ninety one that is to be the portion of the examiners explanation in the nerve the examiner first describes their arguments and then in the examiner's response half way down the page on appendix nine ninety says that she found the above arguments persuasive and then goes on to say that we are applying the ordinary and customary meaning as understood by a person of skill in the art at the time of the invention accordingly the examiner has found dixon does not teach the preamble register in accord with the interpretation re cited on page twelve of the remarks filed on feb twenty fifth two thousand and fourteen more specifically preamble register requires a designated or specific reason of memory in a computer processor for storing and outputting a preamble i believe that's the sentence my colleague is is referring to the very next sentence furthermore the microsoft computer dictionary fifth edition that's a different edition than the one that they had cited in the papers but the substance is t defines the term register as a set of bits of high speed memory within a microprocessor or other electronic device used to hold data for a particular purpose and here critically each register in a central processing unit is referred to  assembly language programs by a name such as a x the register that contains the results of the arithmetic operations in an intel eighty six so in the nerd the examiner is repeating the understanding of what a real register is and that inside a microprocessor those registers are small their name is different from a regular memory like a ram or random access memory or a buffer or you need to have an address that's be coded first before the computer knows where to go and get it so from beginning to end from the interview to the submission to the nerve we have this theme that register is a real register inside a microprocessor not a regular memory turning briefly to the the requirement that the registers be explicit north  peak and the original applicant both agreed with the idea that what is not only disclosed in but claimed by this patent requires an explicit memory structure where you've got a preamble register a different address register and a different data register their proposed construction in the martin phase of the case was simply not to use the word explicit at all they did not have an alternate construction the defendants proposed that we should include the word explicit not only because the the claim language is set out that way but because the arguments that happened to the p t o required that you have explicit excuse me explicit registers and i think that this is the the debate here as i was reading the briefs again might have seemed a little bit confusing but i think it's actually the easiest to understand what is going on and what's dividing the parties by looking at page eleven of the great report after explaining their position with respect to why the word explicit should not be required at the bottom of the first paragraph on page eleven  brief north pete points out of course those portions of memory can overlap at different times and different portions of memory can serve as a register during storing and transmitting intervals so in other words what's going on and what they need to be able to do to have an infringement case is to be able to accuse a system like the prior art where you would have a buffer and for the first packet you might have particular regions or addresses of that buffer that would hold the individual packet pieces then the next tactic comes in and maybe different lines of the memory would be holding those packet pieces they would call that one snapshot in time the places that are holding the preamble for packet one the preamble register but at a different snapshot in time or you've got the preamble in a different spot they would say well now those lines of memory are the preamble register that's exactly cause that's exactly dixon you've got large memories where the packets are coming through the pieces end up in different spots and they said no that wasn't the invention you need to have explicit registers just like you see in figure two that korea will always goes in the preamble register hearing ask counsel about this this point she said those were the words that your client used and counsel agreed yes we're stuck with those words we would submit that judge nelson got it got it patentee argued to the p t o that you needed an explicit register structure with a preamble address and data registers just and simply adopted that language which was used in order to overcome the prior art prosecution history of the language stuck with the means bit says what it says not the way we agreed that language had the limitations that intel was trying to see and there's two points that really show what an orthope intended explicit registers to me in the first is when i started the port to have a response to the office action when north people express we proposed its construction of register and linked this separate in st which to explicit and later on in that office action when north peak addressed connie and mentioned in that act response that confound has to disclose the explicit registers structure in the claims which have three claim elements so that's the linkage there are three claim elements that's what explicit means the requirement under this court's gallus case another is the one you have separate elements you cannot appoint to separate things what the explicit language refers to is captured in that separate or designated language the north pig proposed on the point that the registers if they switch locations would be just dicks and that's incorrect kannan dixon just have black box memories that don't really disclose exactly where the preamble data and address all are and i would note that we're talking about two sets of transmission interval that's an infringement and it's going to be a separate question the next time the process was before me to look at those designators specific portions of memory so reading that explicit are reserved for all t limitation on the claims conflicts with the fact that thirteen and fourteen are method claims that only need to be performed one time to quickly on the microsoft definition are no amount of time this court case law requires clear and unambiguous disclaimer there is no mention of it just disclaim in memories accessed by addressing any of the microsoft definitions all there is is that just that's a high speed reaches of memory and the fact that the examiner  hundred five definition which is broader and more importantly cited north peaks exact construction is the reason why dixon did not anticipate those claims the construction north peeper prose to earlier which undisputedly does not exclude rahm regular