specifically they say that you argue when you group theory under which you claim a six to eight patent requires a server to determine the route that the message takes to the recipient and that service never explained how and that you never explained how the lack of a particular indication determines the route the messages take to the recipient where was that argument mable they say after having convinced that this court that the first rule is not any particular path you should be permitted yes your honor we're not changing the claim construction we're arguing that when you go through the references and i believe this one is the dickinson reference when you go through the references the first root as identified in the claims is not matched by the dickinson reference and i can walk you through that for example  indication then the fact that the particular indication is not present doesn't have anything to do with whether in dickinson the message takes the first route to the recipient and that's because in defense and it's the decision to encrypt at six twenty four that makes the decision whether to browse on the first route so we're not trying to further limit the first route as the court has have anything to do with whether the message is routed to the recipient on a first route because that is made by the decision to encrypt which is at six twenty four and the particular indication has already been satisfied up  first the parties art disputing what is a particular indication the parties are disputing where the claims require that particular indication to be so the six to eight specification is clear and it distinguishes routing based on what's in the macit it from routing based on the address and for example at hol eleven through eighteen routing can be based on the address which we do not claim and if you read that language it separates out routing based on the address based on routing rather browsing based on what's in the subject or in the refers to the message excluding the body and the attachments message having information is the address it's entirely different and so for us it doesn't dispute with us that  based on whether there is a registered encrypt that relates to the recipient domain not what's in the message and that's that decision six twenty four and you argue at thirty six and thirty seven that in the message excludes information for structuring your honor because we're trying to we had a definition of in the mess in the message which is the ordinary definition and meaning and i believe the parties disputed it in the claim construction race which i am not sure i have here in the record generally refers to portions of the message excluding the body and attachments and that say twenty six twenty four of the record it's column seven lines thirty one to thirty four of dickins at two sixteen you're on are talking about talk about indications that may be in the body one or two but once you write walk through the claim limitations of claim porcine claim fourteen requires that you determine a particular a particular indication and if you do that at the manager to sixteen you have now satisfied that limitation for a particular indication that the particular indication but what determines whether the what determines whether the message is delivered along a first round is not the particular indication from the facility to sixteen it's actually the decision not to encrypt which is at six twenty four and that's why we did make this argument in our literary thirty three and that's why dickinson doesn't anticipate in addition to the fact that the address is are expert is very clear that he distinguishes and those of skill in the art were to see english the subject and the message from the address so the differences looking at the claim language where is the particular indication satisfy in dickenson it satisfied it to sixteen who makes the decision to route through the first route it's made at six twenty four let me let me direct you to thirty six of the red brief in which we're discussing all june at that point they say in the district court our post expressly represented to so foes that it would not claim that the asserted claims of the six to a patent on title do a priority date earlier than the july twenty seventh two thousand and filing date on the face of the patent and i w district court failed to decide the case on this asserted waiver issue it said putting waiver aside and that's at eight thirty five the record yes but talking about none of us who directs representation yes number two that representation was made before either of the references issued here were part of the record and they were served just before the close of discovery so that representation was made when there wasn't anything that fell into that category of prior art we tried to clear clean that up below in our post opposed that motion i don't really understand why that never last we certainly don't have any objection to this court of law for me as modified or amending or whatever he's ok so  otherwise with respect to these sort of claims the court need look no further then the dickinson reference no disputes prior art our post makes some claim construction arguments that are inconsistent with things that it did any event regarding other muldoon reference as the dickens hardly thank you on the dickinson reference informative from our post opening brief our post itself notes that dickinson describes  system by which e mail messages containing certain content or or originating from or being transmitted to specified addresses or domains can be automatically encrypted and or filtered before they are transmitted to the recipient that's all the only to the point of the owner of the plane right there and that's from our coasts opening brief our post makes an argument some does not disclose the particular indication and they make that argument for a couple of reasons they argue that the claims require that the particular indication dictate the special processing but these are all computer systems honor things go together in an if then function if the particular indication is in the email message then the special processing takes place just like in the six to eight pattern if in one of the embodiments there is a in the subject field of the message then the are pay post server will perform its registration functions it's exactly the same way they also argue that in dickinson the particular indication is not in the itself saying it distinguished somehow there is there were conflating things there are the art distinguishes headers from the body but not headers from the message an email message includes fields there is an address field a source field a subject field and a body field the claim simply says the message and in fact the six to eight pattern itself this is page twenty six hundred of the appendix column eighteen around lines fourteen or so of six to eight patten alternatively and our post server might register only those messages having certain destination subject fields body fields and of course the subject field which is the primary example in the six to a patent are posts expert dr serato admitted that's a field and he doesn't distinguish first route does not need to be any particular road and it does not need to be devoid of any further processing the district court opinion this is the appendix at age forty your honour's judge casper dealt with this issue express and explained that if every email in the dickinson patent undergoes some processing and only some email undergo additional processing then dickinson still practices this element because the first it didn't have to reach the way i know now so it didn't find the waiver what's interesting there's an element i'm concerned about this kind of conduct yeah i understand that your honor what i would say is with respect to my friend's comment that we weren't prejudiced in any way it was a late disclosure of some kind of the supplemental in iraq a response that we're not going to try to get an earlier date than our utility filing and discovery proceed along the way before the close of fact discovery if they were invalid contentions serve that been told that our post that so folks is not going to assert a date of priority earlier and did not respond so we certainly do take the position that at that point our post ought to have been bound by that it was for the first time on summary judgment briefing that i post began to argue that it was entitle to the priority date of the provisional application but judge casper did she said i don't have to earlier date which is why dr sororities report omits any evidence that a person borders on the outer font written description in that provisional application and she therefore concludes that are posted failed to meet its burden to come is it that it was and in the professional for example the professional doesn't disclose encrypted but that's not a requirement will certainly is within the scope of the claims that are asserted it certainly within the scope of claims fourteen a claim thirty and unemployed so first glosses over is that we're not disputing what the particular indications are and particular indications in some environments may be in the address field however in this claim it requires the particular dictation to be in the message and based on the specific particular indication in the mat in the message that it's determined for example in consented to sixteen that has to make the determination to send it on a first route to the recipient but that limitation is to sixteen is satisfied when that's when it looks to see if there is a particular indication so that cannot be the same particular indication that determines the route because the route is determined by the decision to encrypt and that's an entirely different decision than what happens at policy manager two sixteen