sometimes as a third electrode ate the electrodes first ground plane it's one conductor the commission ignored the undisputed plain meaning of that term electrode and instead ensured each of the electrode turns has a common conductive pathway electrode positioned between paired electromagnetically opposite conductors now there's a number of legal errors containing the commission's construction that like to focus today on to the first  construction improperly focuses on the use of the claimed apparatus the electrodes at issue are part of the structure and the claims for site only that structure well council if i'm a family your honor that passage even you're correct to focus on the center coming conductor every single claim and sedition this case has that common conductor that's not the issue the question is whether and this passage is only about that conductor it says the center common conductor is the essential element of the invention but that's not what the commission said was explained the commission said that the disclaimer was not of the center common conductor but that the electrodes positioned on either side of it and then it w several places throughout the specification a common pathway is referred to as a single conductor sometimes are called that pathway the combination of three conductors but it's the commonness of that and its its ability to serve as a return path that is the key to the invention are connected to the two additional conductors in what you're referring to drain a are not actually that conductors that were added by the commission they're talking about two additional conductors that are placed in between that shielding structure so th are actually common conductors not be paired electromagnet opposite conductors are required by the commission now the other thing that's important to keep in mind here is even if you say there has to be three conductors based on the use of the word center churchwarden noted that does not say anything about how those conductors must be connected in the serviced and the apparatus here is conductors it's an arrangement of conductors in order to have peered electromagnetically opposite conductors you've got to connect those conductors to a circuit and energize them in a very specific way that's referring to the use of that apparatus in a circuit it's not referring to the apparatus itself the problem with that construction is you can have exactly the same structure connected in one circuit and it would infringe it is connected in a way that the conductors are paired in electromagnetically opposite if you taking zacky the same structure and put it in a different got to turn to a specific power source or a signal on one and a different pair then electromagnetically opposite signal on the other that's use you can take exactly the same structure put it in one in one circuit turn the power on and that might mean parent electromagnetically opposite if you put it in a different circuit those configured differently that same structure were not in french so the commission's construction infringement turns on you and that cannot be corrected  now with respect to the other statements that are identified by the commission as purported disclaimers if you read each one of those statements you will not find any disclaimer that says every single envi that phrase isn't does not actually appear in any of the specifications of the patent and suit doesn't appear in the two for one patent that doesn't appear in the five hundred patent so when you look at what the commission said was being displaying that structure when it's used you're talking about the manner in which the current flows well when current is flowing through the structure that is use it's not the structure these claims specific conductors but this invention was about the arrangement of those conductors the physical positioning of those conductors with respect to one another and with respect to the common center conductor and so there are different aspects of it in  so that the parasitics do not get outside of that particular conductor what the x to y structures do and in their different environments that have to do different purposes but if you take the two for two for one embodiments those have five conductors three common on your fallacious was where two currents opposite currents cancel each other out as opposed to the center correct that is correct or under so would feel cancelations you can have two conductors and if you put then you have two conductors next to each other they may cancel each other out and one thing that is different about x to y structure and this is why that emphasizes common center conductor to have that field cancellation traditionally you would want those conductors right next to each other and what extra why did it put the scenario common conductor in between and that provided several benefits you provided the physical shielding benefits to shield those conductors from each other but it also paid attention to where you position to the other conductors in the circuit so in the two four one four four four patterns those other two conductors are p that can be seen in many different applications there are several features universal to all embodiment that must be noted and then says first the material can be any number of materials then the very next sentence understand the word differential coupling capacitor to require the opposite signals i understood that in your previous sentence or your pre buy previous discussion of the earlier for the other hand there's a question about well yes even if the essential element is the center conductor that doesn't require the opposite signal sector conductor pathway electrons but doesn't this doesn't this language clearly require the opposite signal as a universal feature to reference to line to line is referring to to the interaction between those two conductors but it doesn't require that they be electromagnetically opposite you can still have a differential capacitor relationship if there's a difference in their charge they don't have to be opposite there has to be a difference so what the commission's construction requires is one hundred degrees opposite phase that is something very specific this doesn't say that you're going to have a capacit r relationship you know line the line of a packet of relationship if there is any difference there that would give you the differential capacitor relationship let this is talking about is because of the the architecture of the structure those two conductors  positioned to allow that differential capacitor relationship to be present and what it's saying is doesn't matter what the chill you put in the tweenies as long as you have our structure you're going to get these benefits but it's not saying every single because my understanding of the word differential coupling capacitor are opposite signs and so i i guess is there anything in the record that would help me understand that particular term because i thought it meant to be honest with you i i hear what you're saying and you're raising a question in my mind about what it means and i'm wondering what the record contains regarding late night i believe both experts opined on that issue i don't your honor the reason we didn't specifically ask is because the finding that the commission made was that under a reversed instruction it was are to satisfy the commission's treatment of the domestic industry issue as a whole was largely not to address it because there were several issues on the economic problem but i don't see that they take no position with respect to research and development under them their members see they they took a position that level for final determination w construction is changed there may be other positions that actually like an address and therefore and i think take the position on that at this time so they did not adopt the instruction saying there is no technical they said we will take no position on that because actually i may have made me please the court time this is confusing case i think the best thing that i could do is try to get something out i think some answers to the questioning presented to the accounting differential is defined counterpart which is consistent with judge moore's understanding to determine what happens in the course of x to y prosecutions is x to y attempted to retreat from what the differential pathway  true but it should be better exactly what you have to decide are they entitled to priority this is a c i t it's not a continuation so obviously there is the matter added and so does the new limitations that aren't mention in the other patent you can also broaden patent by taking away move into nations that were present in the earlier patent when they removed purposely remove the disclaimer language because so much of the spec is the same as some of the parents but yes none of the disclaimer language is there why doesn't that constitute a broadening out exactly this dimension they've brought this to say electrocuting finding it's not the three electric sandwich here even if you conclude it's true in the other ok include the disclaimer language in here it's acceptably missing so why doesn't that constitute a broadly one exactly that to mention by not saying we're limited to a three electrode shield why haven't they now untitled themselves the plane or in removed all the disemboweling language from the patent they clearly an undertaking exide it surgically out because the spec is otherwise sort of similar you know but all that language all the language that you can point to any other patents obligation to say affirmatively not only are we taking the language out but we want to be clear the world we've taken it out because we are no longer limiting ourselves to yes where there's a case of affirmative disavowal and there aren't that many cases where  true under the disagree all should be similarly clear to avoid confusion for the public in a case where you don't have to sort out and here you come in with a new specification you don't have those issue unusual set of facts but these are the news that the cation one point right that the statements you're talking about and i believe the cases and please correct me if i'm wrong because i'm not positive the second one that the cases i think you're talking about on prosecution history stoppel are statements made in a prosecution of a parent then there's a child there might even be at the ip i don't know the facts the particular cases well that's because you mean affirmative statement the prosecution and there's nothing else in the records to contradict the idea that that statement still applies but here there is something that could contradict it because the specs are different when exactly this point and so there are even in this set something that could be interpreted as a walk away from the disclaimer it isn't just remaining silent purpose the argument the drain and i are making today is necessarily the argument he me so tell me did he identity point raise separately of the two for one and suggest it was entitled to different treatment for the reasons that were articulating what would happen if  sort of a string of symbols that the council says preserve the alternative parity dates for the four for four and two for one patent arguments were made that this one passage about differential should go back to something else that doesn't change anything on the five hundred patents and for the two for one and four for four patents there are no allegations that anything structurally is missing in these planes i'm simpler my time if i could just squeeze out one more sentence  sentence is i'd like to point the court in the five hundred patents so the sentence before the sentence that was quoted before about this of ours had a four sixty five column nineteen lin actually have a corporation by reference you know but i read every single provisional and in all of us the parents and here's the best part i followed it down the rabbit hole because some of those parents were great other things nothing was incorporated even five degrees of magnitude remove specific cite i don't have the top of my head saying back to their great for they argue all of them together but i would say that just to be clear they argue we believe none of them have disclaimers which is a different argument from whatever you pathways so you have this three tiered structure with a comic conductive pathways and the opposite or different electrodes let me pause for minix i think i can dress one of the other questions the panel raise there w opposite conductor a different layer and there's been no cure for that so i think it's to back to the beginning of the argument your honor first question your understanding is not only consistent with what the experts say that it actually is consistent with an unappealing finding of pla construction by the a so that if you take that finding and you look at the provisional and your own i'm not going to read in the interest of time that you will see that the first second and third shielding functions which are taken out of none of this language is nearly as strong as some of the other disclaimer language i pointed to and i mean just to say there are three shielding functions are found occur within the invention or maybe playing one derived in the first feeling function but that structure doesn't perform functions two and three and maybe claim two is directed to the second channeling function right and you could see certainly that each of these functions could potentially be performed by different configurations architecture architecture doesn't she doesn't imply one architecture to have all three of them every time you hear i think there are three answers to this of an outcry to get it out quickly to claim term the truthful one pet is center and electric it's the center of something and this a corporation by record sales is precisely what it is so that's point number one point number two is whatever it's a precise legal analytical framework is the priority which the commission thought was important that goes back to three fifty to four nights since ultimately becomes a public notice issue and that the question is this if you look at the two for one or any of the paths and you have a claim to priority to three fifty that has the universal feature of language of all the body that's if they claim prayer it's the two for nine which has the essential element of all  three structured feature distinguishes the prior art and that it's that concept that the commission nailed case that what is the notice to the public and the notice to the public is invention required the person when he filed the c ip to express we not just delete that one and only one sentence but to express we say affirmatively and to be clearer i no longer am using that definition or that disclaimer or think it's enough to say that you just take that apple claim priority to do original and say you may have a wheel you may not have a wheel if you have to say this is no wheel is required that's pretty clear and in the hakim case the i t c cited that's what was missing and i think the question here is if you look at it and i'm actually looking at it true different things one if you look at what the our brief and it's sixty three zero two four three nine that's when i was referring to so i think i think the answer is your honor i'm going to pick plants which is it would be a different case i think and if you take that body collectively the claim interpretation of the ale today in the commission is accurately reflect accurately reflect what's been disclosed the public and some statements about may  have been put in later are not sufficient to overcome that just about thank you very first parent package you claim priority to this they said there's a disavowal here we're going to say that but i knew automatically because of your priority claim and it started there and never left it that it said ok we think that the invention and all  invention have to have these characteristics and so we're going to require those regardless of what they claim language tests and that is exactly backwards they should have started with the claims and if you start with the claims it's kind of hard to get to the disavow that they found because if you look at the five hundred pound for example you've got two electrodes there and what they've added is not just a functional relationship appeared electromagnetically opposite between the two electrodes that are present they're actually reading it in more electros so they're not controlling the cent implies or could be registered construed as a one footed widget none the less the claims now don't cover anything but a one foot in which it even though there is no precise limitation that you link it to and so who cares whether it's the word electrode or not if there is an overarching limitation that is the place i think the break here is that it started with was there written description support right so that's the question is the written description of support for the claim it's written and with respect to the disavow going back to the three five  helpful and i feel like that goes against you pretty strongly so tell me why not to read the words differential coupling capacitor exactly like there are two issues starting with the commission's construction of different or conductive path where there was a specific claim turn and again they read the disavowal into that claim term so they're not giving you a technical meaning of that claim that that is their construction of that term which we did appeal because we were their claim we decided not to pursue an appeal but that's not a technical definition of what that is that's based on a construction based on all of the things that we're here talking about today so it's not a technical definition and we certainly have never agreed or conceded that the technical definition of differential means paragon electromagnetically opposite in the context and he explains what's the difference between a good balance transmission line and a differential signal and he said the differential signal is carried by the difference between two values such as voltage in many instances are first in the case where that difference is no respect to ground definition because i'll be honest with you i my own understanding of differential i'd miss the point when you were explaining her magazines it seemed plausible to me that my own initial instinctive reaction was opposite why doesn't this expressly mean i think the disconnect the most common example of a differential signal line is to have equal and opposite that is the most common and so i've never disputed that but if you read this passage the language is very attractive it says conduct a pathway that is usually written doesn't say required to be a business it's usually written and then it says in most cases one hundred eighty degrees it doesn't say in all cases one hundred eighty degrees so this passage actually supports x to y is position that the most common way to do differential signaling is to have equal and opposite we've never disputed that but that's not the only way to do it and that language right there confirms that because it doesn't say always right and it is usually and it doesn't say in all cases it clearly talking it seems to me about the oppositely charged and ironically you're not i don't believe that is correct well ok but it reflects there are several geometric relationships that are described here in opposite is very commonly used throughout the spec to talk about the conductor toby thereby providing the two parallel pathways again the story about geometry necessary to form an energy conditioning element and i think also important to recognize that this entire passage of palm ninety is a discussion of figure two the figure two shows well except that the sentence says essential element among all embodying answer kind of two is showing an energized circuit not the structure by itself so when you look at that passage center coming conductor may be an essential element it doesn't say that parallel tremendously opposite conductors are essential essential element language in the context