morning may please the court right to infringement issues in the case but there's a problem in area issue which i'd like to address first and that is an issue of standing of you know process to bring the suit were at some point community property but you know it was his position is that because there was a joint agreement the dissolution and approx was checked off saying there's no community property and because the dissolution judgement on according to them incorporated the joint dissolution agreement therefore the community property was wiped out and they go a step further they say that not only was it wiped out but it is now the sole possession of monday from a con who assigns rights to notices i submit that they are wrong and i would like to point out that there is a california case which has language involving a community property issue which directly impacts on this issue and that's the lewis vs superior court case and that case up with i did you take a property a pension of the husband and wife insisted that  that her lawyer had messed up and it was a malpractise suit but what the court said is of interest you said plaintiff interest plaintiff being the wife was present existing and equal to that of her husband prior to divorce and a judgment which didn't purport to affect that interest or not have the effect of terminating that interest and that goes to the heart of this issue because even assuming even assuming that to resolve this question how can we do so you're right or because there's a standing issue it goes to the jurisdiction of this court and this court whoever the the california court whatever the california courts does in the two appeals that are involved will make no difference because this court must decide whether it has jurisdiction and jurisdiction  submit the court must look at that issue when i suggest we're not attacking the jets but this isn't a cry or or attack on the judgment but there is a basic issue of standing which this the court always has the power to decide adjudication of the property rights if you're right nobody disagrees that they came into this divorce proceeding it was a community property issue with respect to the pad but the parties under penalty of perjury said we have no community assets or liability and the court affirmed that and they approved the petition the petition assuming the people were who they said they were i have a hard time seeing like that in that judy case the issue the answer it is that there was no community property but we all know there was in fact community property i don't think that's disputable on the on the present record so that we don't know what happened i  chap we have no community probably because they settle for your queue outside of court if you're one is in a dispute and the parties agree one going to pay you one hundred thousand dollars for your interest in the house and then they both check off that issues resolved we have no community property issues under stop the usher yeah but on this record this record does not show that most of whom a con had sole possession of that property this record this record only shows that there was community property that at most there was a check box saying there was no community property that doesn't resolve as between the husband and wife who had the community property we asked the district court for a hearing on that issue the district court refused to give us a hearing on it and in fact the notices blocked discovery on that hearing but the fact is somebody owns that property deference the it's right that his name was on the patent but the lewis court expressly stated that and here i'll read it the contention that the omission divest at the white from her interest in the pension due to the fortuity that the pension was in her husband's name and payable to him is rejected by the court so the fact that the property was originally in his name does not resolve the issue and the fact that the court entered a judgment of dissolution does what is the nature to kid is who between the white and the husband owns that property that's never been adjudicated by the superior court below that is the  and that is the question that the case is say as long as it's on adjudicated the question can be raised it's not a collateral a top attack on the judgment below and we are not collaterally attacking that judgement always saying is that judgement did not say as between the wife and the husband who had that property and the fact is that community property the presumption of community property it's  burden to overcome that presumption by clear and convincing evidence it's not our burden when to overcome it but but that the going back to the first question of the two points that judge proscription and entailed it seems to me it does seem to me you may not agree with this but this is what i take away from the california court case it's going all the way back to the brown case it does seem to me that if you have an express  based on a representation that there is no community property then that terminates the community property rights of the parties that doesn't say what you do with the property but it does terminate the community property rights and that louis was not a case like brown indeed it distinguished brown or grounded brown had actually had an adjudication of saying that there were no community property rights now this this short legged process this this summary procedure that california uses now for for quick divorces does say that checking the box has the consequence as i read the law of an adjudication of all the property right so it seems to me they're just saying this is the same as a finding of fact in brant if that's true then there isn't any community property is there your honor first of all your the view that you just expressed a presumes that the dissolution joint dissolution agreement was incorporated into the into the superior courts a judgment of dissolution we challenge that we say it was not incorporated because there is no specific reference in that agreement there's a let's let's assume that that's ok we were dick let's assume that it is a price admit that where we know that this property was community property we know it was community property at some point somebody owns it yeah but but but but you were asserting a moment ago i think that it's still community property now whatever it is it seems to me you may be right that it is something else and you may be right that she has an interest in but it seems to me the california cases if they tell us anything you tell us that it's not community property whatever else it is your own or if you refer to the understand the california law that was before the development of this process this quick process by which and by law the property allegations as to property are deemed  seems to me that he and the summary procedure performs exactly the role that the williams case said that the brown case covered but your honor since we know there was community property and assuming assuming everything you if you suggested that that the the dissolution judgment said there's no community property assuming right the question is who owns to who owns the property and and the case is say the weingarten case says that community property can only be the presumption of community property can only be overcome by clear and convincing evidence to the contrary and louis vers superior says that a judgment which didn't proport to affect her interest that whites interest will not have the effect of terminating that interest and the question is whose interest did it effect assuming it affected something property how better can one to decay and crassus both parties agree that there's no community you know after because that the answer to that question doesn't tell you who owns the property it's got to be owned by to conclude that it's attached to him than it is that is attached to her we're not suggesting it's her property to to do that we'd have to go back to this period court that's what those appeals are all about we're not challenging and those appeals really don't affect this case always saying is the presumption is in our favor they've got to overcome it by clear and convincing evidence and they can't overcome it by clear and convincing evidence when it is clear that the judgment of dissolution doesn't resolve as between the husband and the wife who owns the property and the only solution is i don't know if you course are monic solution but they both are it has tenants in common if they hearing correctly construe that as a means plus function claim it's the means to resolve clause and the district court listed hope actually though amidst a structure corresponding to that one of which was connected to sarah at in the j decision the district court said it didn't matter and it is a fact they don't argue they have the same connecting circuitry they argue that they have some they have some generalized testimony there are there is circuitry but they there's no my references to the description in the patent which figure two relates to the description in the patent says that there is it's and it's the only description it says that there's a filter and a switch and the filter in this which determine whether the satellite frequency is connected or whether the terrestrial frequency is connected they don't have that and they don't argue that they haven't they don't argue that there's  function section one two zero barrier six requires that the corresponding structure must be the adenike structure or its equivalent they don't have that and we said mitt very simply that under the circumstances the district court  heard reversibility by holding otherwise they argue that our it reference to figure two is new we have never referred a figure to before figure two is discussed right in the description we rely on and in fact it's the only thing here that relates to it and it's the only description that relates to what i think in fairness their argument isn't that you never mentioned it that the claim construction you didn't argue with for and that the court doctor was not limited to figure it right i don't know that your honor i mean i didn't read it that way i read it weeks we clearly argued for the connecting circuitry with clearly argued that there had to be a filter and this which we clearly are good at and in fact figured to doesn't have anything to it begin to is just the illustration of what is in the description if you look at this scripture that mentions figure to write a description that's the description of the only description of the filter and switch and it mentions figure two i don't care whether you look at figure two or not we clearly argued that there was no connecting circuitry if there wasn't a switch in the filter and we mention here a brief where we argued and they also have waiver arguments saying we didn't raise it in in fifty a day they waive that by not challenging in their in their fifty b opposition and the district court clearly held that we had because i i see at a sixty three and the construction which picks up on a sixty three shows up in twenty four fifty five i think something like that yeah twenty four n b a that's where the means plus functioning structure is good but i didn't see any where maybe i missed it that you were arguing about filter and switches we is where we we focused but that's the experts test your experts test right and that's the one antenna to another antenna  patents were not community property then there's nothing for the district court to have done nothing for this work to do as well we hear for the first time today in the argument that well that there was no community property then you're still something to be decided who actually owns this property that argument wasn't me before the reason is because the evidence is clear if it's not community property it's separate property separate california lawyer so yes now you may understand this i certainly don't although i've made an effort in preparing for this case but what happens in california law in exactly this kind of situation there must be thousands of cases in which you have an adjudication whether in the summary procedure or otherwise in which the parties represent that there's no community property but of course there's property which was community property i mean suppose that you have a husband and a wife and a house which they've lived in for years what happens when they check the box know community property who owns the house and use their clear the first question which you just recited as you know how you would which you dispose of by way of community property rights when you check the box the law on that and i did that i feel comfortable that i understood the second half the part that you say was raised for the first time here that i thought there was a vacuum let me address that check first of all your honour's parties during a marriage to take any piece of property that is community property and while they are married declare it to be separate property of one party or the other not very commonly done so that the fact that there is a marriage and that the marriage has community probably doesn't mean that there isn't also separate property to dish and parties may bring separate property into marriage or that property ma inception in march of ninety five and from that point forward the question about whether there was any community property involved be whether the community funds were spent in on the application or whether we're separate property so we know that students are using example of the house what would happen in such a case would they have to execute a piece of paper saying despite california law this is the wife's house no your honor if the property to be we look at the title of the property because title gives rise to a presumption of of ownership title is in the name of one spouse it would be deemed at that point to be the separate property of that apartment but let's say it's initially entitled as for then it isn't divided up so that the house is the property of th and wife it has to be one of three things either has to title either has to be in the in the the in leiber the husband individual that even the wife individually or the name of both whatever that is that would be the nature of the of the property arrangement but if  and if they agree between themselves no this will be after the divorce or after i die or whatever that this is the wife's property do they need to change the title or hav document between them yes absolutely if the title is the name of both parties husband and wife and they decided that well we want this to be the separate property one that he will have to execute instrument to do that otherwise you will want to place you'll still remain the property of bo so here we have a piece of property where there is no title we have an inventor but with who then and then the product he is the size whenever he has to accompany but there during a dispute a contest a dispute over whether property is or is not community property there is no evidence that the patents were ever community property none whatsoever no evidence that any community funds were ever spent  presumption of community property doesn't mean that oh yes they were definitely was definite community property is about one whom he owns the company so it is there is no presumption that that company is community property no your honor the there were first of all the question the company now owns the pad yes there's no presumption that the shares of the company are community property no your honor because the ship the company itself was for after the marriage so the presumption of community property arises with respect to ephrata germination of the marriage ref to the beginning after i believe even after the termination american yes there's no presumption that the that the that that the presumption relates to property that's acquired during the marriage and it's a good it's a legal presumption and then you take at it doesn't decide anything the evidence is was it was of the separate funds that were used to acquire the property or was it community funds were used to acquire the property when you win there's going to be a debate about it so the presumption literally plays no role once they sign that petition either it was community property in the agreed it would be separate property or was never community property at all we don't need to decide that all we know is for spurious that on the date this kind of position petition adopt and therefore do to kate what the party's representation yes and what's your best case for that brown case you're on in the brown case there was a complaint and then there was a decree and the decree made no mention of community property no mention of allocating new property rights and the california supreme court held that the decree is deemed to be too to provide the relief that was said was this that was stipulated to in the in the in this case was a default judgment that was provided for in the complaint in stipulated to here in addition we've got the statutory law the law that's at issue here includes the forms themselves the forms are part of the law the language of the forms constitutes governing law under california law the forms do not provide that the that there will be any listing of any property in the judgment the judgment doesn't identify property to all the statute in says that a mistake trickery or fraud either spouse can go back to the court and seek to get the judgment modified and that's the relief that is must be followed and it must be the spouse that does that under california law it can't be someone else that those that know let me see if i'm i want to make sure i'm on sound footing here with respect to the cal as much as i can be expected california your contention well first of all let's go back to brown brown i thought was a case in which the court actually made in the j in support of the allegations of the complaint which included the allegation that question made the interlocutor torrie to create above which recited that all the allegations of the complaint were sustained by the testimony were true and i thought that was in effect saying it appears directly to say that those were findings made by the court which is what gave rise to the distinction of the brown line of cases in williams that mr downer alluded to where w refers to the brown line cases as being limited to cases in which the record shows an express finding on the allegation is the property and that's what leads mr turner to say well of course brown then doesn't apply because we don't have the allegations that the complaint are sustained by the testimony are true that sounds like a finding as to the state of the community property well it's an adoption a big of a complaint but i mean there was no trial there was no was it all just right but that it seems to me has to be if i understand correctly that when you get to the summary first process what you have is the full equivalent of a finding because you have something which doesn't require finding but the law makes it an absolute  cation based only on the representation the part used and you state that if i understand your argument correctly doesn't fall within the williams characterization of the brown or it has to be that way otherwise some rigid solution adjudications are pointless nobody knows who owns what property ok one more question about california law and all that house and i will let you go where would i look in order to find support for the proposition that once we've decided if we accept the first part of your argument that community property no longer exist in a summary g d cation situation where that the box is checked that says there's no community property where do i go to find the rule that we then look to for example whose name is on the title of the property is there a a ready source for that principle there already sources it was then issue sixteen of every ok there's a quote there the title of the property was taken solely robinson's name and that that removed the property from the general presumption of community property and made the property presumptively robinson's separate property that's an should have been a different interpretation and there are interpretation in their grey brief they say well of course we didn't raise it because the court got it right in its jury instructions and then they quote from page forty eight of the reporter's transcript and include that in the joint appendix which is a twenty four eighty eight but they only read the first sentence they don't read the next sentence of the instruction the next u satellite receiving means terrestrial receiving these decoders and temporary store you must use my interpretation of the means plus function element in your deliberations a clear and direct instruction that so would you consult with the other side's to rounding out whatever it is that we need yes we will now let's turn to the to the claim structure itself if we look at figure two figure to suggest only that the filter in the smiths which permission soley in the ridge description and it's proceeded with the word may that is the connecting circuitry made clue to switch and filter which means of course that it may not include as if that's what the specification says there's court get the level of specificity with respect to the components of connecting circuitry in discussing the needs plus function structure to use two points as the first point yes or are they never made that request at all was never tradition well good and therefore we did not go on to try to put in evidence of a switch or a filter but we did put in evidence that meets figure two we put in evidence dr rose that the six little different rules of course and as you know that applies in that setting where it if they had said well the structure we think is the right structure is the filter of the switch then you either have to have the filter in this which are equivalent right that's right correct but your point there is they didn't ask for filter and switches the appropriate structure they asked for connecting circuitry at that level of generality you were bound to come up with a filter and switch part quote that's right  there actually in fact to cross examine your expert which is in the joint appendix they didn't you were about to come up with connecting circuitry i'm sorry but you were bound to come up with connecting so yes exactly and some of the testimony that's in the record for example age twelve thirty one dr rose testified so all of these things are all interconnected and what interconnect them is connected circuitry and then to make it clear question all the components that are used inside the handset to perform this global location which they didn't move for jamie all the other one is that they've never raised this as a claim destruction issue on that one when that isn't affected by the table i take that's correct and that's just for the record as it is in document before twenty four page two where we make directly that argument so let me then turn to you you were going to say that you did in fact raise this i didn't hear what yes we did raise the claim destruction argument we all right but but you didn't raise the default fifty b argument is off the take on that provoked provided that we had raised the below and that kid in the case you know that's that's correct now there no more questions about the the one five interpretation structure i can turn to the four six one briefly the issue on the four six one count is whether pre authorized must be something that's done by nextel sprint perspective claimed struction they filed a motion for summary judgment that argued this point in december of two thousand and seven three weeks later they filed their claim destruction brief and asked for a construction of preauthorization that did not assert that it had to be pre authorization by individual phone as compared to a group and they probably did that because they realized at the same time they moved for summary judgment on a fringe good move for s the argument that pre authorization had to be done on an individual phone basis they'd ask for a specific instruction that the court granted and then from that point forward for with x reports and trial they never raised or asked the court to construe this pre authorization to require this on an individual basis again that constitutes a waiver they can't raise or modify this claim destruction to get raises claims for tradition for the first time  appeal they never asked for a plain destruction that included this they asked for a different point in the port gave their instruction mixed with respect to the construction issue the claim language itself makes no suggestion to pre authorization must be done on an individual basis versus the group to start with the language of claim twenty eight in the last element is the system claim the system able to use the location access field of a first profile and we're getting to the relevant portion it says to deny the location information of the first communication resource to the pre authorized resource there's the mobile remote receiving unit but as we point out in our brief it's using the mobile remote receive unit to refer back to the scene basis a mobile from overseas in europe which means one or more mobile remote receive units and therefore the claim language on its face is saying that this is with respect to not a particular single mobile remote region receiving unit but could be one or more mobile were from over seven years if so that's the big claim itself because there's nothing in the claim language the ordinary meaning that that narrows it to a single individual phone that must be authorized pre authorized individually that it can't be done in a group basis and if we look then at the specification says the special code can apply to multiple phones or can't be used for a group of phones nothing in a prosecution history suggests that the invention is be narrowed to oh you know the prior are they all did groups of phones  record no for the questions thank you and if you do this generally we will let mr dobelle go into issues that you had raised so we had a little time to respond to what can feel you there's an end between after the fact is that case doesn't help you know assess that case involved an agreement between the parties that one party one of the spouses would have title  rather than the other so that case doesn't help at all and the bottom and also mr goodell said that the presumption plays no role once they signed the agreement will go back to my point the point i made in opening and that is that why did sue mean it was incorporated by reference why did it resolve somehow some way somebody has to own that  and the weingarten case clearly says there is a presumption and it may overcome only by clear and convincing evidence in these cases dealing with their expressed finding as in the brown case express finding of why it was no express finding as to who owns it and they've got the burden to show that that was to prove a con and so tied to this but if brooks against robinson doesn't to give us the answer to the question my question is do you have a case that tells us what the california law is now with respect to the following question and not not a this is a narrow question that is if we agree with mr dove well that the effect of cation was to terminate any community property rights the question then for for us the next question is the one you raised in your original argument which is what then does the patent become tenancy in common in the absence of some evidence of a disposition between them or as mr divel says does it revert to the named party or the a jew the cation that this is not community property i'm starting with the assumption that you're adjudicating at the outset but it's not community property so the question is what because louis was a case in which the pension if i recall the thirty million some odd people that live in california surely this case this issue must come up all the time you have parties the check box the box that says no community property and then you have to figure out what to do with the house the answer very simply is your honor i don't have a better case than lewis on this issue i'm relying at this point i least in good part on common sense and common sense tells me that if a court using your one of the spouses than the other is irrelevant and that i think carries over to our situation the fortuity that it's in his name is irrelevant we know it was community property at some point and the question is if there's that it's no longer community property who owns it i suggest the analogy to lewis is a good one in that is in that case they found that the parties remain to net tenants in common to such on each unique a property because the court could say as between this the husband in the wife which one owned it it was as much reason to argue that the wife owned it as the husband and vice versa we're not suggesting that she owns it but we are suggesting that he doesn't own it alone he owns it as a tenant in common with with his former wife now going to the one five nine patent and the question of connecting circuitry i would know structures disclosed in the specification and the court then talked about the various elements one of which was connecting circuitry the only place in the specification is the place that i directed the court to be for what we were talking about it was clear to the court it was clear to them and i submit that under the circumstances it should be not a deficiency that that they could raise even if they preserved it and they didn't exact same connecting circuitry depicted in figure two correct but irrelevant correct they didn't they didn't say they had the same circuitry and they didn't say that they had equivalent circuitry and it was clear to them it's clear to