i mean for cases that have been consolidated for purposes of oral argument in the first of the numbers of cases is number thirteen days twelve seventy seven optimum power solutions versus ok and the problem is we don't have any idea from this record what the thankyous devices are lying as to why there's not infringement but at least i understand what's going on i understand you're ok when you go ahead and proceed certainly the first issue is a procedural issue this is relatively straightforward yeah police conten that this appeal is barred by collateral stoppel because of a settlement agreement entered into between up to the power and apple do we have that anywhere in the record is not in the part and was it was so that the case was on appeal when it was settled is that right that is correct and was the settlement simply to dismiss the appeal or was the underlying district court judgment in any way touched the underlying in the arizona because an arizona versus california supreme court instructed that it must be clear that the parties intended the effect of collateral stoppel to apply that to a consent judgment but  seems to me don't we have here a situation where there is a but he said that the settlement that occurred on appeal there's the judgment that you just the stipulated judgment corr a final judgment not infringement is in accordance with the parties stipulation for entry of the final judgment as to non infringement of u s patent number five seven eight one seven eight four that ties back then to the stipulation to which i was referring earlier on page eight three five six paragraph seven in which it said notwithstanding anything in the foregoing part of the agreement up to one power specifically objects to the court's construction of the logic control means limitation and paracel power supply taishan as well as other construction set forth in this court's order the parties reserve their rights to challenge these or any other constructions of the disputed claim phrases of the seventy four patent on appeal which is what happened you did take an appeal and in order to challenge the construction but then you gave up the appeal i there was an appeal while the case was on appeal it was settled and the appeal was dismissed would not have resulted in collateral estoppel not of this language no mom i'm assuming that there is no stipulation to forget about the that result in collateral a stop it would depend upon whether the parties intended that dismissal to have that fact understood arizona versus california well how are we supposed to determine the intent if we don't know hypothetical you've given me that would be a difficult position in fact in that position think it would be more prudent to vacate that step that you know that's what people do move exactly in that situation here we have a very different situation where we've stipulated and it's clear from the stipulation that collateral top the stop is not intended to apply well i don't see that it doesn't say anything about collateral stock or other cases it says to reserve the seven must be referring to the other co pending appeals otherwise why would we reserve our rights to challenge these or any other constructions of the disputed claim praises of the seven eighty four patent on appeal when we had disagree that's certainly one way to read it i would suggest that that's just one way to read it and your argument is that since it's not clear  it could they would right well i'm curious as to whether i believe would agree that they would be collateral stopped from challenging it i certainly would be taking the position and argue that they were the title to their very full opportunity to litigate those arguments and that they would want to make their their presentation to this court and i think more likely than not this court would say no we've heard it we've ruled cl dismissal of the appeal rather than actual firms because it is unclear from the dismissal whether the parties intended for collateral estoppel to apply absent it being clear from the parties conduct that they intended collateral stoppel to apply then collateral stoppel doesn't apply and moreover even if it is clear even the parties and  the claim construction based on essentially the adoption of language that is virtually probate him from the prosecution as well it's not virtually verbatim because they left out in the courtroom phrase and that is the phrase that we asked the court in the reconsideration to to add and that was without necessarily varying the power to the rest of the system  and then without necessarily that is what i understood by with the etc that she was referring to so with that understanding we agreed to it and we we agreed to that construction here today that in fact my understanding is the apple lease position is that change to the construction is immaterial and therefore because when viewed in the light of the entirety of the discussion and again where we're dealing with the discussion of a part reference call phone and element of the disclose computer system claims one and twenty three on the other can disclose varying the power of the supply to memory without necessarily varying the power level supplied to the rest of the system but it's that's the construction that we're asking what's no matter what level of was being supplied to the memory that same level was supplied to the rest of the computer system our position is that the without the necessarily means that it can supply to the memory  ask if we were to agree every deck is disagreeing with you on that point is there any continuing significance to any of the other claimed constructions cetera control or the power supply limitation is the district court constructed that is going to and are so there's a legit just a plea to be clear i mean i did have some difficulties with the district positions as to structure if the function was really supplying power and then varying it the power of the corresponding power supplies would have had to have been part of the structure neither party suggested back to one which would be the minimum power supply required for the structure given that it can clearly be the case that supplying this constant power supply is part of the supplying a variable voltage function instead it is simply taking the power of the constant power supply and creating from that and supplied to the memory the grid circuit of the structure but why wouldn't i drive a lesson from that they should have been there for a for sure and lose as opposed to drawing the lesson that you are drawing which is since they should have been part of part of it and aren't then other things must also be excluded from the corresponding structure well if this court redefines the function then i would agree with you thing exactly it is it is getting the very voltage to that they think is defined by the structure that we have included power director twenty nine does not have anything to do with getting the variable thank you can thank you we have any questions if we have no idea what the differences or if you need the cues devices right the good the issues are common which is why to be efficient i present the arguments for for the parties for all parties on the issues or claim construction i will turn to the collateral estoppel issue quickly first since the court raised it first because i think that that is an issue there are two issues that it is for all purposes a final judgment it collateral estoppel should apply because under the ninth circuit law that applies as we have a final judgment it is based upon an actually adjudicated not infringement and i take it that the underlying rationale of the supreme court's standard in arizona for consensual turns is that when you get to the final judgment by virtue of  you may get actually be able to tell whether some underlying ruling was necessary to the underlying judgement rather there there may have been consent about getting to the final judgment because there are various alternative ways that could have gotten there  and therefore in the absence of and therefore you have to look at the consent so why why are the clean constructions here necessary to the bottom line in not an infringement judgment well because as reflected in the stipulation for entry of judgment they are exactly what led to what the parties agreed that given these clean constructions there was no infringement and i can explain the reasons for that but that was the judgment that  that's a that's an excellent question but let me answer that directly what the parties intended was a final judgment on it was not a consent decree if it had been a consent decree there could be no appeal you don't when you reach a consent to be usually with the government it is to resolve issues usually without litigation and you don't appeal from the consent decree what they wanted you out of was a final so every final judgment moves out the discussion in arizona  years to raise it and then waived it so yes if a judgment is based upon an actually litigated order yes that judgment heals collateral estoppel and that's what they wanted they wanted a final judgment also on infringement but let me guess q yet another question about this let's assume the benno stipulation here the district court had said there's not infringement because a you know alternative y there's not infringement because of b which is essentially what the stipulation right here and there was an affirm by our court just in rule thirty six  recollection of the restatement of judgments is that where you have alternative grounds for a decision in a firm and by the core and i'm assuming no stipulation if you like that that it's not collateral estoppel because you can't figure out which of the two grounds the affirm it's rested on my correct about that if it were a consent decree not forget consent decree i'm i'm assuming hypothetically no consent decree is just a decision by the district courts it is not an appointment because of effect for the simple reason that neither one of them can be said to be necessary so although in this case both exist and both were necessary and both are proven here no they're not of necessary for you you don't want to believe what you really don't want to play that you can with your theory as you will be there when you were right what i would say on this that you are is that is that the judgement but world was intended to be a final judgement if there is a clear way if you want that judgement not to have collateral estoppel effect to make sure that it does not and that is to vacate that judgement when you just let the judgement stay final because what you intended was a final judgment and know the rules if anyone should fall because it is that they come to this court often and and in the case of stoppel you happen important federal pounds you have a policy that should be applied evenly and so if it is applied it collateral stopping are very important this is three fifty four or fifty two us that three ninety four and in pointing to those principles the court said that fo went on to say the mischief that would follow from establishing a precedent for disregarding the principle against against belonging strife would be greater than the benefit which would result from relieving some case of individual first apple that case was appealed arguments for all of the orders or actually the stipulated orders or the stipulations are a day apart the other direction they're close together then and then and then these appeals that is the added one word to the construction that apple had proposed that beginning in the referring to the slide forty five which was apple's proposed construction she said but leaving that aside a good magical issue that she had talked about so onslaught forty five would you be happy with your proposed construction wherein the power control means can supply power spirit can supply power specifically to the memory and the care is the word that she added and then she said it cetera which from the record clearly refers to slide forty five which is what she was  to and slide twenty five goes on to fit with the rest of the language without varying the power level or voted supplied to the rest of the electronic system in which the device and memory integrated circuit  first if if one turns to the record in a double up to eighty eight starting about line twenty two it was up to him powers count to himself who made the argument about this can action that was a response dated january for one thousand nine hundred ninety five that completely support exactly the position in which the prosecution attorney said figure one clearly shows that b c c input confusing that it wasn't necessary number with you to my question does it matter yeah i think what the court concluded was that not care what the court and more not what you think of it not i think it i think not having the word necessarily  it it may well make a substantive difference if what they're saying is is that this creates a different way that you can supply power to one thing or another thing or for things and if you do that to any of them then you can supply than then you'll be claiming the station what the claim limitation was all about was supplying power specifically to the memory integrated circuit that's what exists throughout the claim construction of the prosecution history the ability to provide power would be confusing to the jury and a claim construction should be concise that was done by the inherent conservatism war or perhaps perhaps because because when i hear an argument as i just did that this somehow changed the language if the court in her decision clearly said the parties have agreed to this construction couldn't have been clearer the parties have agreed and there was no motion for reconsideration and then once you've agreed to the court's construction in open court and i can go back to all the lame she gave she asked twice about that are you happy with are you happy with it yes your honor and then when she says in her decision the parties agreed to this does this order and then you do nothing you have waived the right to come now and say what i agreed to in open court what i understood the court to say clearly in her  opinion you've waived the right to challenge that construction and to say that i wasn't clear doesn't change that if mr if mr harrison wasn't clear and frankly that is his problem the court was very clear and the part clear so even if you didn't look at that agreement and i think you should i think that's what determines i think that the waiver but the prosecution history clearly supports exactly the construction that the court arrived at so even if you were to look at it  put in the passage that i just read which mr harrison himself advocated to the court as something she should look at the that when you look at the prosecution tree this construction is well supported and should be  about something providing create something that is provided that doesn't mean the thing that's creating has to do the providing why didn't the distro why isn't the district court's construction which in this case is the identification of the corresponding so we look at all the things that are doing the supplying and everything in the chain that does the supplying i think i thought it kind of conspicuously there is not a comparable word in the logic control i think there is it is much easier to address which was for two to generate the power and control signals provided to the memory integrated circuit so they were provided is there it's not the only point i agree but it is a part of that function pragmatist i mean i think you probably understand doesn't mean that the thing that's doing the creating has to do the providing but it has to be the signal that is created and provided to the integrated circuit which is right so if we go to figure one and we just look for example i think this is a fact actually example the argument applies throughout if we look at the at the dram thirteen and the eight the are aligned which would be the address signals so if you look at where those address signals come from they come from the slew rate controller the slew rate controller actually creates the signal that goes to the memory integrated circuit the dram it specifically says that in the specifications it shows it in the that are sent that constitute the address those you are are not the signals that are generated by the binary address generator this you can see at page at the chart page thirty of the the appellant which is also in the record at a couple of places in that chart which i also put in that sure you will see that the actual signals the ones and zeroes that are that are created that are and then have are sent to the mailing integrated circuit are not the signals that the binary address generator generates at every point after hold out for by the inventor of course it serves the overall purpose of the patent but this is a means plus function patent with a single body and in the inventor said this is what creates the ones  that's one part of what must be done and no one claims that that's not significant or essential everyone agrees that that part of the structure but it does not generate the signal that and the in the specification calls all of those structures out and it says they all exist it does not say that there are optional or prefer or anything like that so this is what you have would have an inventor who set forth in a single body but in this means plus function claim and then describe it this embody and in order to do what mr harrison wants to do take out the power to take out and there's been the other case purgative in this case the slew rate controllers and to are put to put into the slew rate controller so that it can do this function and that function when you stand back is essential to the function of the pattern so all of those are required why do we know that because that with the  about power that we talked about that the power director that mr hurd talked about at the end is also set forth in figure one and if you look at the boxes there the only dispute of course inventor and the prosecuting attorney told the patent office is and i've we've actually said this a couple of times power director twenty nine can vary the voltage suppl thirteen in his argument a moment ago it was supplying variable voltage that he said was the function in what you want to do to the patent office the patent the prosecuting attorney specifically said power director twenty nine can vary  also in the specification can i just ask him why or why batteries now are perhaps they should be perhaps they should be they provide the power it's not very big power at that and once there are two power sources there has to be a power director because you can't select between the pair even by their light you can select between the true power sources with lower power but so maybe they should do we did we do the parties didn't argue that and perhaps they should be but what we did agree to was that that was the function in the functions supplying the variables power and they have said that the power director supplies variable power and they can't change that now you can't walk away from what the interest said was the patent because if you do the fact that the changes that now if the court has any questions i'd be happy to address them let me ask you i think i've let me start briefly by addressing the logic control means to uphold the district court's decision this court has to equate generated with being input into the slew rate controller seventeen into the solid state memory thirty and then this and then then just to finish the description what describe technically what the slew rate controller does to the slew rate controller discovered coming out as described in this patent the slew rate controller modulator the rise and fall of the signal generated by the binary address generator in other words it softly gets it to the same place going down again though it just takes longer to get there and that's a power conservation strategy but it's the same signal similarly in coding is simply w the slew rates of all the digital inputs to the solid state memory are minimized using slew rate controllers now earlier that explained what a slew rate was which is d v r the d t in other words the change in the of the job or the change in time is w referred to as a slew rate and then it says slew rate controllers maybe input drivers designed to have prolonged rise times and fall times in comparison to conventional input drivers so in other words they simply just slow down the slew read the change and be over the change in t v in the way they do that isn't by changing the voltage they do that b use the address generator is a different signal from what leaves the encoder which in turn is a different signal from what we use the slew rate controller and if you work backwards from the requirement that all this to be about the signal provided to the dram you need to include everything that gets you to the creation of that signal which is the one coming out of the slew rate controller and therefore it seems their position is that those are actually different signals that those two errors so one way is that wrong it is because what you're doing then is europe weighting modification with generating the signal is generated the pattern is clear the patent says the binary address generator generates the signal what then happens is that signal is modified through because it's still the same signal it is just been put into a different representations of ones and zeroes in an effort to save power then that signal lives in code or and travel rate where again it is modified simply to change the amount of time that the that the voltage rise and fall occurs