q logging to steal confidential information and then frequently money or other assets this is a case also where the specification teachers what the coins mean and if i may i'd like not say anything about presence of detection nor should that be read into the claim in fact the specifications absolutely clear that it's quite the contrary the pattern explains the same thing the whole problem here you've got claim limitation that seems kind of plain on its face and a specification that says just the opposite and so that's what seems to be the problem here with respect to why the district court below how that the claims were case that for example my adversary relies on like alan engineering where the claim says not to and then when there's a there's a conflict between parallel and perpendicular the question is what is in response to me and in this case the only way we know is by reading the specification the specification says the solution of the present vention does not depend on the what the claims mean the problem is in response to is just plain language has a very accepting meaning and you're asking us to look at the specification to find that it has a very different wording but and what you're on or the issue is when you say in response to has a plain meaning a plain meaning in what context this is not a case about what you and i if we were having a conversation i set aside this courtroom might mean my in response to the question is what is the positive read this to be and the only way we know what a positive reduce to be is if you look at what the specifications us i think that what is really a question it's not so much what in response to me that's a question of what the object of in response to it is whether it's talking about a malware invasion or it's talking about a threat of malware or invasion and the problem is on the what you would you agree that's the question i  where you don't get the answer of the claim you have to go to the specification and i hope it went ok but let's look at the claim first is the answer in the claim the answer is not a claim the answer you have to go to the specification to find the answer on the face of the claim seems to say in whom and it has to be read by a partner and i go back to saying we all use in common speech in response to it's a little bit more difficult than some of the cases in front of this court in the computer area where it's highly technical you would not and even so let's say that yes this part of the specifications makes reference you say but but you're avoiding the the question or that i'm imagining doesn't the claim itself refer to bot ret and the attack absolutely not your honor there's no basis to think that what you do if there's a question about what the claim means as a score descendant any number of cases is you go look at the specification and you go look and you one which which on the face of it seems to be pretty clear and maybe contradictory to the purpose of the invention which is why we've gotten a definite problem but on the face of it it seems to be very difficult to read this fla referring to a threat rather than an actual invasion now i don't think so your honor because if there's any confusion about as you put it your honor about whether or not in response to means an invasion or a threat one looks the specification of the specifications lays out first of all use of the word threat and also points out that the whole point of the invention is to give people better protection i said although when i was your work and i think your specifications might disclose both in the event of a track and in the event of an invasion no your honor because the whole point of the invention is that the software that the software is always running to protect  protect against a threat whether the threat in turns into a reality it really doesn't make any difference but what if it does become a me and then the software is designed to prevent the invasion but that but that does not mean indefinite or does not cause the claim to be indefinite on account of that what it simply does is to shake in in response to what i think it's also helpful to consider what performed and that was something that this report i think struggled with because the district court did not look at what the specifications of the claim limitation proceeding the problem is that this is the these claims are software works for purposes of a threat as it also were for purposes of an invasion your honor it's there to protect against a threat so yes of course if it does it does it work to in response to an actual threat operation doesn't change depending on whether this man actually asian it does not because the point is that what what gets the software going is simply installing it because of the threat whether or not there is an invasion but it does more than just sit there and and and wait until to detect a threat it's always running so that whether or not you know what's worse the actual invasion occurs then the soccer also has that software will always encrypt it will take it through the level three area which is the area where the malware is operating and it will only deposit on encrypted data where it should be for your position i still have a problem because your claim specifically satirists and response to the kill of and as judge rated pointed out you know you look at the claim and you see in response to earn it you look at what comes after that question about whether there are things that are done when malware is detected if you look at column six about line thirty nine through forty one it specifically says in describing various aspects of invention the software program one in twenty three i believe it in response to in the parlance of computer system technology has a meaning meaning and frankly in general parlance has a meaning too and it has a meaning in reason that's not modified by the specification which is there is an action and that causes something else to happen that's what in response to means and that's the problem with this claim because it says very specifically that there is one of  last of three steps that are described in the process that there's a process consisting of two separate events right i understand counsels argument that there's the word while someone happens while another happens but that doesn't change the fact that there are two different events there number that when the claim and i can do two things in a computer system or in life it at the same time two things can happen at the same time doesn't make them the same event so then the language goes on and very specifically that in response to the software key logging through the a p i stack to an internet communication port right so that that doesn't tell me in that particular claim or in the specification anywhere that action the in response to what is it taken in response to what is the triggering event for that that's never discussed anywhere in this specification never laid out in the specification and therefore we don't know what it mea a system that does certain things when malware is present take certain action and another one is that it doesn't do those things now what other ramifications that has with respect to divided infringement or things where that's not asked is software keylogging is actually a specific form in this pathway because if you go back to the beginning when it taught at the beginning of the patent and where it's talking about various forms of attacks that software keylogging begins a time i believe six and you'll see that there's a description of software key loggers and how they attack and what they do but then there's other techniques described for example in column t example of merriment malware your honor but remember their argument is that the in response to language which if i read that language and just to remind myself it says in response to the software key logging through this does this claim make sense if it's written literally in other words to say that this happens when there is an actual invasion of software keylogging no it doesn't make specification your honor because there is no description of such function so it's just ink to go back let's just accept their argument and set aside that we're talking about a specific form of malware here if we say it's in response to the threat of step or excuse me two other steps and in the specification if i just accept their argument to talk about malware generally all of those things would happen in response to the sort of they're all part of the same thing so a claim that tries to refer know the basic the most direct reason why there is indefiniteness and this goes back to the climate which is my understanding that jesus yes you read the claim language in light of the specification you don't discard the claim language and say i'm just going to go to the specification and rewrite it and figure out what it what it means and here the claim language is specific and if we look at the last element it says a process of one submitting the keyed in data to a designated entity through the a stacks while to clearing confidential data from intercepted data at the zero ring level prior to a subsequent transmission which does not contain said confidential data in response to the software cheat logging through the a stack to an internet communication but let's say that i read in response to two that it could be either one or two or both but the fact that it's set out in the cleaning would then make i well and that that doesn't make it doesn't make sense in response excuse me it doesn't make sense there in response to language in light of the claim itself right because there there needs to be when it says it's in response to it needs to be in response to something there has to be some triggering event it could be one of two could be the rat or but that's not what the claim said your honor in the specification doesn't help us with that so and that just up their argument you know if it isn't their argument and just to go back to the public notice function the problem with that is it doesn't set the claim language does not say that if there were a description of the specification that was very clear then maybe we would have a different case but the problem is we're left with somebody writing an ambiguous claim and just to take your on your honor's example they can go out there and not try to enforce the claim seeing what people are doing and say well what i really meant is one or two or what i really meant was only one and not two depending upon what that prior art is and that's the problem with a public notice function with these cases your excuse me with these claims is that at the time when you're doing your bargain with the patent office you got to make your decision you got to make your decision of what the scope of your claim is right that in clearly some people who are still in the art are placed on notice not have some kind of ambiguous claim that still ambiguous in light of the reading in the specification since i can't point to any language in the protects the data and it's designed to deal with to act in response to threats of malware then that might lead to the kind of is actually present detected and there are ones that are when it's not there but in addition we would still we'd still have the problem of software to be logging setting aside the fact that there the intent was to say i'm doing all of this in response to the threat of malware that's a very easy thing to say right but to attempt to perhaps write it in there or claim and i don't know what was in the minds of the they at the when they were in from the patent office and then come in and say well what i really meant is go ahead court and fix this just say i was just referring to essentially what would be throwaway throwaway language now and all this works in response to the threat of malware is inconsistent with a public notice function look at a p i stack the a p i stack would that was i think we had an agreed upon definition and i think it the ok yeah but it's i mean basically it's the set of a p i as that would be used for particular applications most commonly to be provided by the operating system but not always necessarily fro functions yeah correct i mean you can you can have those things often times something at that level which would go to the hardware level would actually be taking care of a lot of what i would call below the level of a particular form if we take the input from the application to take these particular field so that i can encapsulate those things in packets and send those how things like that would be have handled through a p i is there the typically it's a division when you have an a p i would be a division in the the programming so that the operating system for example on the underlying software may provide functionality the application itself doesn't need to provide that same functionality to write all that code and repeat of that code it can just make a call to the operating system and say do this for me so that's generally what we're talking about here but but again on that particular point if i go that wouldn't be the only way that the software based you logging works that's why i say it's a very specific form that's in the claim because you see that income for that language i read it line forty seven the present system to tax attempts to place hooks by techniques such as modification of important tables or the insertion of inline hooks so there can be other things modifying the operating system tables and things like that which again leads one of ordinary skill in the art to the point that what is written in this claim is very specific isn't just a general statement about a threat ok thank you mr no thank you a contact all and the debate was does that mean a single contact or are separate and distinct contact holes on the court correctly thousands of based on the specification that it met something totally different than the common ordinary english meaning what have it i can't see it in ink and in any better than you did judge dyke in your descent and straight path where you said if i may we must look to the specifications of single best to meaning of a disputed term even in cases where language on its face appears to have a plain meaning because as philip states the specification is always highly relevant to the claimed construction analysis the only meaning that matters in the path and the path are there any claims that operate in reno there are not there are not the relevant part again of the specification is where the specifications specifically says it does not depend on