the issue was not the sufficiency of the pleading or whether these were just bare bones allegations there was a claim charge that was attached to the second a medical the issue here is one of claim construction and the issue is whether remotes as is used in various parts of the claims can include one lot and the district court found the claims cover only communications where single remote communicates with a hub sorry does not cover claims where communication work in a certain way and it doesn't include a repeating cycle so a couple points are repeating cycle the district court found there wasn't any repeating that had been alleged i don't think that's in dispute anymore  repeat these are smart meters of course they're going to repeat data they are just communicate information once and then do nothing further so i don't think the repeating her is really an issue anymore the issue was was getting it this notion of there different types of intervals three different intervals the heart but how about allowed to transmit the remotes allowed to transmit in the remote expecting to receive the transmission and what this court said in the med trying to appeal was time and what those intervals are a function with this within the protocol so therefore it's in i'm not sure what we're getting at with exactly with predetermined or not what what level of pre determine opportunities to have hearings on these motions to dismiss you just didn't show up yet so i mean this is not going to be a completely satisfactory answer i've taken the case over from perth counsel and i will say i don't know the answer to why what happened what the issues were and how this all about i don't know why the why he did drop obviously he showed up but that shouldn't really impact if he didn't show up and then finally shows up the third time and thanks for mercy again well that shouldn't  that's that really isn't the issue the issue is whether we have adequately clad infringement and whether a single remote theory has been properly while so when are you going that could be a factor in determining whether there should be any further  but we're not asking to do that what we're saying is second many complain as has alleged all of the necessary limitations and that the construction of the district court used to find otherwise is was improper and that it doesn't follow the rules of play construction and we really didn't have even a proper clean construction hearing this august sort of evolved within the context of a motion to dismiss it's not to say that that can't be done and we recognize that the wise changed on what's required in the pleadings but i think there's a risk that you take when you do this in sort of an ad hoc basis during motion to dismiss briefing that doesn't have the same rigor that a normal clinic is treasury to have that you get some of the result here which at the end of the day is largely this that the district court judge looked at th time in any given communication program are you trying to tell me that if there is one heart that communicates to fifteen different remotes in a neighborhood that perhaps if you defined group differently when that hub communicates with just one of those remotes that would satisfy all these limitations correct because it's built off of what the communication cycle among the group in the group can include one heart one rocked it doesn't talk about the entire the truck that even when it's one hob in one remote there is still a need to have an orderly process for those communications so there's not collisions between those two different between the hog and the remote at any given time during the creation so it's not inconsistent with that purpose to to apply the planes to a single with a single moms again taking even a step back from that but with the district court really did  was attempt to find the disclaimer of a single remote in the single hug system and there's nothing that's been pointed to that rises anywhere near the level of there being a disclaimer there is discussion about a multiple remote system but you also have  preamble that says that they specifically calls for at least two not more than two and you have the very purpose for why you have these kinds of communal kitchen protocols are not at all inconsistent with a single hawk and issue i think largely turns on the just me i guess if you reverse stand there's no fees but if the question is really was it a possible play destruction and i think we wait so if we don't force on the relying on the preamble with a good argument as to why the preamble is limiting for at the very least ought to be considered and because explanation for how it's consistent with the purpose of the election i don't think that rises anywhere near the level of extraordinary so i think you your honor may please the the court complaints not only they originally complained the first amendment amended complaint even the second amended complaint don't accuse a single smart meter system they accuse any smart meter in the system with one or more now it is undisputed at this point in the case that any system with more than one remote cannot infringe can you respond to i was a little surprised to hear your friend's answer that  can nevertheless constitute a one hundred one remote system depending on how you define group yes i was a bit surprised by that too your honor because it's not just the case that they changed their theory of infringement from the three complaints which say one or more to the motion to dismiss that's a new theory of infringement that i don't understand to be articulated in the court below or in the court of appeals briefs i think it makes frankly nonsense of the patents the whole point of the  to control and coordinate communications among multiple remotes to prevent collisions that would interfere with the signals what do you do about the language that says that all you need is that least one additional communicator well that's not actually what the language says around  language of the preamble assuming it's limiting says defines a communicator as either the hub or the remote and it says merely that communicator must be able to wirelessly transmit frames to and receive from at least one additional communicat r that's true and they and they and they define the hub as a communicator but i does not follow that i think your honor that the hub only communicate to one because remotes are also defined as communicators that language makes perfect sense in the context of the claims a system of a communicator needs to be able to communicate the remote needs to be able to communicate with only one additional communicator the heart of the remotes never communicate amongst themselves the hub by contrast needs to be able to communicate with each different  language in the preamble is perfectly consistent with the you've got to have communicators that must be able to communicate to at least one other communicator that's all the remote does but you've also got to have a mac protocol and the entire basis of the body of the basis is usually the basis for a finding that a preamble is limiting but what this court said in i m s technology versus haas automation to a six f third at fourteen twenty two fourteen thirty four thirty five is that if the only thing that shows up in the preamble is just a descriptive name for the limitation that appears later that is if it's not defining the term the mere fact that it is referred to later in the body of the claim it's not fish that's said let me be clear that i do not think this court needs to decide the question of whether the preamble  limiting to decide this case for several reasons moving up one level of abstraction and as i just indicated i don't think there's anything in the language of the preamble that requires this court to sort of find that all of the rest of the claimant the specification of the purpose of the invention which are to control and prevent communication collisions among multiple remotes or out the window but that is that again my my other point which is why are we doing this on twelve six and that and the other the answer to that you honor i think is that is that ultimately the final point the reason we're doing this one twelve b six is that they pled not once not twice but three times a complaint which is facially implausible which everybody concedes can't possibly be right that is that any number of remote s infringe the system and they now concede they do not attempt to argue that any number other than one could possibly infringe the system we're here on clean construction in our view i think you see at least one i didn't understand them to giving up multiple me let me try to be clear that's not what the complaint says the complaint says anything with any number of remotes infringes that complaint is facially implausible because they know and they do not now concede that any system of ours with more than all say any comment system with any number of remotes infringers it is now undisputed that that is factually untrue implausible and they do not defend it as to any system with more than one remote which is essentially all of the system not even a an allegation in the complaints that there's ever a one and only one remote system the reason i want to what i'm going to be writing to me are overbreeding that language because i think if we if we agree that the claims include one or more and when question was why are we doing this on plane construction and the answer i think is we're doing this on plane construction because they changed their theory in response to the motion to dismiss the second amended complaint to allege this one remote system for the first time  should extend to a one and only one remote system one hundred and one remote now that i think ought to give this court some comfort this is not a case i think where you have to conclude that we always have to do claim construction in order for a motion to dismiss what the district court actually theory in response to the second amid a complaint and the question the district court is trying to figure out is should we have to allow a new environment to allow them to want to go on and proceed with that case and what the district court found was that atlases action those depends because i think they said one or more consistently throughout why isn't that what your honor i think it's not enough in the specific factual context of this case because the were more is not is not infringement infringing and everybody i think now agrees that that's true so imagine that they had instead pled any device with a computer chip infringes that complaint would be implausible even though some tiny percentage of computer chip devices are smart meters that actually that theory in there are spots of the motion to dismiss to say no only systems where there's only one remote in the group that's a very different group it might not exist frankly there is no actual sort of i wanted to ask you and i know it's not at the record you may not know it and setting aside what your friend said just today an argument are you where are the systems where combat would have one and one or both of we are not are we are going to such a system i would be surprised if it existed except by sort of cheers accident because the whole point of the communications network is precisely to communicate a hub reasonable hub is that it communicates with multiple remotes in any event they certainly haven't alleged that any such systems exist but i would like to say just one note on attorneys fees your honor can i can cut you off and ask you a question all right if we disagree with you on the one you know that that theory but it's real if you want to repeat it do we need to send the attorneys fee work now i don't think so sandflies claim construction that just wasn't i think and yet if we think the claim construction is viable would we have to send it back i don't i don't believe so your honor right because there is sufficient basis here to affirm and support the district  exercise of discretion sort of found that there were plenty of good arguments but he also made a bunch of specific findings about their behavior in this case that the implausibility of the infringement theory was readily apparent that they filed this action without that's all tied up with with the one or more remotes issue isn't it i mean if work if we set apart that side of the case and if we only had prevailing on the twelve the six on there the repeating i mean i know it's an abuse of discretion standard but that sounds kind of like a run of the mill that they know is implausible they make us show up to defend them and they don't even show up the oral argument they finally says an amended complaint when he allows them to amend that is substantively identical make us file a second motion to dismiss and then pull the u k complaint at that point they file the third complain that has the same deficiencies of the first and then when we file the third motion to dismiss they pivot and change their argument the district court specifically found that any claim that they didn't quote engages in revisionist history and quote involves a flat misrepresentation on this claim construction theory which we may or may not agree with and then rely on how you gallantly teams and all of the sudden here we are with the repeating cycle in the in the court's opinion where the next time well i think the repeating cycle is what is  because it is the one and only element that distinguishes this claim from all the claims that are previously been held invalid because in the course of defending that in the patent office what the what half the said was that claim element requires that information transmitted from the hub to the remote be sufficient to prevent the collusion of transmissions from different remotes competing for communication opportunities with the public so they have i think consistent with the language of the patent regularly taking the position that this is in fact something that requires that these things allocate time within the pre determined intervals between an individual remote communication individual help to remote communication and to group up to remote communication that makes cycle element but i read through all of the briefs you filed all three of the motions dismissed kolo and it was never mentioned never not once the district court seems to have come up here and i mean how did the district court get to the point how did it end up there and you the fees of filing all your your papers because none of them pertain to that issue and the district court seems to have come up with an entirely new sound and you know a blind squirrel finds an once in a while so i don't blame him i think it's great but what why would they have to pay your fees if that's itself independently sufficient under this court's case law to support and awarded fees the repeatedly moving target as this court referred to in oakland vs vizio and i will note that the target moved again here at oral argument as they are offered yet another new claim construction the fact that they showed up made us put us to the work of filing motions and they didn't show up to defend the case he states that he could have he could have just granted the motion with prejudice the first time they didn't show laugh i mean that would have saved a lot of people a lot of effort but why didn't he do that maybe he could have sanctioned them all along the way and to sort of keep them stringing along and then say ok now i'm going to sanction him at the end of the day doesn't seem to make a lot of sense well i guess if i stand that he could have done that your honor although then probably they would have been here complaining that they hadn't gotten the normal process the seventh circuit law requires which is an opportunity to amend and i think it might have been distinguishable on the grounds they didn't bother to show up to defend it but i think if the district co backwards to give extra opportunities to try to articulate a theory that shouldn't be held as a reason why the fact that they still couldn't do it that they try to get it again and still haven't come up with a theory that works shouldn't be found i think is a reason to  limitation operates because of the remotes of multiple remotes that what the court was openly saying is looking at what they said to the p t o and comparing that to their argument is that they that they don't need votes remotes they said you the hearing your honor but i guess i will say it's not it is not is entirely different than argument is that statement makes it seem right that it is part and parcel of the point of the invention right which is to actually allocate communication with multiple remotes to but they are all part of the so i'd opt for the invention which is let's use a map protocol to allocate information among different remote how do we do it in the past and they do it by using pre de i defend identify the particular times at which individual remotes will send signals so they don't conflict and it is undisputed that comments meters just don't work that way how much meters work in precisely all wired where i didn't see anything in their motions to dismiss or or in the transcript because i did read the transcript and there's nothing in there about repeating cycles back i didn't see anything about even the pre determined interval i mean that's a great argument i think you're right that there's a it got this problem and that that our that then i think it is right that it's appropriate to have the district court look at the fees issue again in light of the fact that you that you are from only some but not all grounds but i don't think that that's actually necessary in this case precisely because i think the other grounds for instead raising it for the first time in arguing why exhibit b s account of how the network products allegedly in french claim one did not in fact we did out of court we see no explanation for this conduct other than they filed this action without adequate investigation they were free refers to the lead appearance of the theory in think the proper resolution be if you agree that there are that construction that forecloses a single moment is incorrect then it only needs to get looked at again it shouldn't be great we don't have a proper record just came out you know late in the game it was it was laid out in the clincher it again in a context in which it isn't that typical if it evolved in a typical ways because this was not a typical process i mean the so single remote issue really came to the front as a response to one of the arguments that have been made by my comment and that's how we got to react the last thing i just want to clarify on the fisa issue talking about what he actually did i understand that he did not make those specific findings that in that way that if he had or if we read it that way it's up in the air but how would we reverse that other abuse of disc