software on it called the location facility and among other things it creates a communication channel between the personal computer and the remote computer you know as a matter of plain construction what judge bolton did was to determine that the location facility is quote a component of the locator server that itself performs for identified functions your honour's if he had stopped there we would not have this appeal because there was substantial evidence full of that in fact the group of computers that log me in operates as their locator server in fact perform all those four functions expert testimony exactly to that fact the error rose on right page nine of the memorandum opinion when judge hilton went further and decided that he would be the parent lee construe the word component in his definition of location facility a word that doesn't appear in the claims and doesn't appear in the specification and that he would he decided that the component meant a singular computer hardware device when the software whatever you want to offer program runs one or skill in the art understands that computer software is made up of components different pieces that are put together the specification explicitly teaches that this is the facilities that their work for  software can be subdivided into different parts and it expressly teaches that those parts can be spread over several different computers so that what your honor is suggesting probably would have been consistent with what the what  certainly would have been consistent with zero one communicates theory of live billeted in this case because as i say it was there was clear testimony from the dr grimshaw that that group of computers together did all four functions that were required of a forty one computer program that runs on several different machines and all four branches are integrated in that program and i suppose you can also  computers so that would be a component of the locator server that performs core functions and may run on several computers yes that's effectively what we are asking for as the correct instruction in this case now we did argue in our brief that it's unnecessary to list those for functions the reason being that those core functions are explicitly set out in the claim as things that the locator server must do however if the court wants to include them twice  taken from dr gangers declaration he is clearly talking about the locator server itself as opposed to some other component and when he uses the word component he's referring to those three components that i mentioned at the beginning of my presentation that is the remote computer the personal computer and the locator server so when he's saying that unlike prior art in the in the the invention of the word that the patent is using to describe a group of software but he's trying to he what he's differentiating is what runs on the locator server versus what runs on the personal computer and the remote computer that's what his staff are differentiation was he never says anything about there about a requirement that there be just one computer that has everything running on it in fact your honor that is the one one of the principal arguments that log me  turns to is the prating reference and i believe that intentionally or unintentionally la dainian is misrepresenting the nature of the quite reference to the court when the crate reference was discussed by the examiner the examiner never suggested that the locator facility location that the locator server would be two different computers to which zero one then responded oh well that's not with that not with the patents claim that's what like me and once the argument to be throughout the reexamination procedure the examiner consistently referred simply to the middle proxy as the locator server the source of the location facility so there was never an occasion where zero one even had the opportunity to disclaim the possibility that the location facility was not distributable over more than one is the second argument that is made by a lot me in support of their position beyond what joe chilton said in his opinion was to refer the claim forty nine a claim that was one cancel the claim and therefore it must be held to have given up that scope the claim that is not the case at all claimed forty nine was actually found not to be patentable by the examiner not because of the several computers but because of a negative limitation contained elsewhere in that claim talking about what one of the computers would not do in fact if you look at claim sixty four that was also  submitted in response to the actual closing prosecution that claim specifically talks about the location facility being divided into several parts and spread over several computers that claim was specifically found to be within the scope of the of the patent however it was dependent on a plain plain sixty three that was not found to be patentable and therefore the entire matter had to be dropped but you know  members of the panel the examiner explicitly held during the reagan salmon nation and i'll quote the disclosure of the four seven nine patent has never defined that the locator server computer or server computer comprise singular component actually he said the specification before seven one patent clearly defines that the server computer comprises one or more computers now how can there have been a a waiver and you did claim we have we have a system for really what i think about is you have software that does all four of these functions and it's really to me at least tentatively it doesn't matter whether what kind of physical machine is on or not you're saying we have a novel invention that we have is we have software that does all the things that a locator that this middle proxy does in order to make this thing work and it's that's different from the prior art because the prior ar various pieces being combined to to make that happen or you have you had some of the functions being done either by the end user or by the by the by the remote server that's it you're right ok but what i'm what i'm trying to get at is as if you if you say you have to have software that does all of our functions somebody could defeated rendered by saying well you know actually we have the four boxes that are done by separate programs right i mean that that that's an argument that isn't tied up with this well the best isn't that really what the argument should be i'm not sure the judge will never got to considering that but it seems to me the question is where is the software located if the the testimony from the experts about the understanding the person of ordinary skill in the art was that anyone at the time of this application who understood this art would know that you can chop these pieces of software up into different pieces for various reasons of efficiency and implementation run them on different machines the real question is are they all running on the machines that are the locater server machines or is some of that software also running on a personal you have to have a clear and unmistakable disavowal here or the ordinary meaning of facility which obviously is going to be more than one computer is going to prevail somewhere if you explicitly that a facility the location facility here must itself perform these functions and what prevents a facility from having more than one computer he went on to say and not some other component that makes less present what still the question is where does that clearly disavow even one expert can disavow which may be another question but your location facility zero one distinguish that by saying the middle proxy connects the communication creates a communication channel but the in proxy locates the personal computer when needed so it's said that two different computers software running on two different computers different software performing the different functions was different from the pattern claims that was deemed sufficient to overcome the pat to cover that but the patent office rejected those claims again in the past even reverses wherein it has to be clear and unmistakable on this claim forty nine was rejected for other reasons there was a lot of this term location facility to cover the device where they will patient facility perform some of the functions and some other component performs the other functions and answer the question because the component could be everything  frightened there was an end proxy which is a separate computer from the personal benefits that in terms of the three circles if you will the end proxy is at the end it's a separate separate from the personal computer and that was the statement made components in the middle middle component of the middle class to create communication to learn the record then make that statement that happens and this was  it was made in a couple places one in dr gangers declaration which is at eighteen zero zero one and eighteen zero zero six gallagher says the actually closing prosecution correctly knows that the executing the server in proxy on a separate computer from the personal computer so it's not the ghent it's not the personal computer he then goes on down to paragraph seventeen to say the middle proxies only role is to join pairs of n proxies and act like a transparent pipe between them effectively establishing a connection between them so that's esta three relevant components there is the personal computer and then there are two components in the middle which are the middle proxy and then proxy and they said because the middle proxy the way the patent office it was initially said does not perform all the functions of the location facility because the in proxy some other component does there are different the proxies kind of in software they don't have to be physical machines if it's different software and that is undisputedly the the log in and system it  software that does different things it is it is a single component of a computer in this case it would be something single computer it wouldn't necessarily need to be on a single computer let let me short because of quote it's close quote and quote the close quote are singular terms the claim location facility must be a software component that is that is included with it in a single locator server computer that's a quote from a great does claim one actually say it must be a single component of a single computer or does it just imply it through the use of these singular terms couldn't multiple computers work through the same ip address people in the industry refer to bots is aren't the claim language is singular in its construction and you claim language in singular means what to a patent lawyer it means that in this case it is it's provide that but even if it was not the case it does not matter if you had a vocation facility that could mean you could have more than one location facility but that's one more than one location facility performing all of the functions required in the claim by that facility it isn't subdivided the facility so that one facility perform some functions and another performs to do different functions that is in this case the the claim language itself requires a singular component that was this way or if it requires that the location facility where ever that is says that each one of those locations facilities performs for functions there may be more than one but each one performs four functions and that was what was confirmed to the patent office during reexamination and to distinguish the prior art and claim forty nine to attempted to get the look a sion feel syllabi that hat was divided and patent office said that was not supported by the specification including the language  the specification that is generally talking about dividing up facilities it is true that the patent he here wanted after the fact to try to claim distributed computing is the way computers a lot of computer systems work including the prior and but they were reports to reverse course by the fact and patent office continued to reject the claims when they were construed so broadly and said our system is different our system has a vocation facility that itself perform these functions does not merely assist some other component does not enable some other component does not facilitate some other component to perform those functions they apply that disclaimer to which i submit is clear doing a plane that plane construction there is no dispute a fact that plugin does not infringe because because it has the software it's different software it's on different computers too but it is different software in different languages with different addresses performing different functions you said that issues not every june disappointed not join any issues when the software was the same person oh he did he did it was it was in the record aren't the same he said as a matter of undisputed fact they were not the same because the different software that performs different functions is on different computers in different geographic location  that the what he said was i have to all be in one place he says itself has to do it and let's say that's wrong let's say that it can be spread out over more than one location along a single component has there been any if it could be on more than one computer it definitely doesn't infringe that the district court made that back to the terms yes the district court did and including under the doctrine of equivalence where it which was never properly articulated to address that at the end of this  two points for if we are on there first of all responding to the last question from george bogle the district court never gave any consideration to the question of if the software for the location facility is spread over several computers is there infringement here or not that the district court thought that the entire matter was resolved by simply determining that there can only be one hardware device as there locator server i d s here where didn't these but i don't see it  so secondly i would like to respond to mr stoner's characterization of the crating reference it might be helpful if your honour's had it available to turn to page twelve of the read brief because that's where the figure from creighton is there and it's easy to talk about it in the context of the here the server and proxy was never ever considered by the examiner to be part of what i think george bogle referred to as the middle that is the locator server and the location facility in fact in paragraph sixteen of dr gangers declaration cited by mr stoner dr ganger said because the creighton reference teaches away from the use of dynamic ip addresses for the server end proxy now that's the that's item t thirteen then he says print id the alleged data communication facility identified by both citrix and the a c p d action closing prosecution clearly the examiner and citrix were arguing that the server in proxy able to the to the data communication to civility if you look at the pattern the dative communication facility is hanging off of the personal computer not part of the locator server not part of the location facility so what was going on here in inductor gangers analysis was saying if you put the data communication facility as a separate hardware computer from the x server you nevertheless do not meet the limitations of the claimed he never said that you couldn't split the location facility among several different computers he never and then finally we're on air in terms of the understanding that the examiner had during the reads emanation both from the analysis of creighton and from the new claims that were presented to the examiner remember that the examiner expressly found that there was support in the specification for the claim language that was attempted to be added describing several computers several hardware computers doing the work of the location facility in the locat server he said that that was clearly what was meant by the patent in light of that there cannot be a clear and unstable waiver of what the examiner himself understood a communiques argument was on reexamination thank you very much