thank you your honor and may please the court and the district court in this case construed over twenty terms and five pounds on appeal robey challenges the construction of only two terms in both cases the district court made the same error ignored the literal language of the claims and imported limitations into those claims based on what this but a cage and described rather than what the claims cover with your permission i'd like to begin with interactive program guide in the six ninety pound the district court construed the term interactive program guide as quote an application that produces interactive display screens that identify the channels and times on which television programs will air and then in reconsideration we want to add another examples a schedule television program but i think the specification also makes it clear that that's just an example and that in fact if figure two which does give a traditional time and channel grid is described as quote illustrative only other program guide display screens are generated for ordering pay programming the quarter the specification in the very first column says interactive program guide to allow users to view television programme listings in different display formats for example a user may desire to view a channel ordered list alternatively the user may desire to view program listings organized by time by theme movies sports etc  by title alphabetically ordered so i think the first reason to reject the district court's construction is the specification while it does clearly contemplate time and channel information as a possible implementation is not limited to that time and channel as the only one so i said that's how i understand the column one of your patterns where it says this is what interactive program guide do they permit you to do this they also permit you to buy some pay per view show but at the same time now there's new kinds of pack pay packages that are offered by cable and satellite providers and our invention is to permit you to use that interactive program guide not only do channeling time information and that it must be forward looking for programs that have not yet been displayed ignores or misses those those additional implementations but but i just when i understand your argument that an interactive program guide and now and so you've described in your pattern can be an either or situation you can be either something that just the program listings and  certainly are so the patent never uses the term video on demand and ever uses the term video on demand which is which is i think what is primarily at issue here but a number of indications in the patent indicate that you don't need specific preprogrammed time or channel information figure seven and eight for instance talk about buying a package of all olympic swimming events when in fact we're about to see in sochi the times for those events are not necessarily set in stone they're not prescheduled so if i buy a set of olympic swimming events as in this example i'm buying some future programming that will be displayed regardless of what channel it is up appearing on regardless of what time it happens to appear the idea is i buy the whole package sounds some future to me well your honor i obviously i'm going to watch shows that i have not yet watched the question i later is a requirement notable in this regard i think your honor is a figure six which is on the record at two forty two figure six is a flow chart for selecting programs for purchase and if you follow the flow chart down to determine whether there is a purchas e event in element ninety we determine whether it's part of a single package or whether it could be purchased individually if it is not part of a package we move to the right and we display starting time channel etc that's the conventional television programming that that amazon refers to but if it is part of a prop package and is going to be purchased only as a package rather than individually then we move down the flow chart we display the contents of the package in the price  the time window in which i might be free to order it but we say nothing about displaying channel and time information as the district court require i guess the question i have though for this flu turn is your flow chart contemplates i guess both in body there are going to be times where you're just buying a package and maybe you don't have to worry about dark times but the interactive program guide and not also also lets you display starting an interactive program guide it might well in fact appear many of the embodiments will have time and channel information but it's not a necessary component the interpretation that amazon offers for this is well it's ok that the screens don't have the time and channel information as long as some way or in other applications there is time and channel information that's a very odd construction of a pattern that says something it is a program guide if but only if the other parts of the god is my only you're saying that we should be understanding interactive program guides that divine that physical thing whatever it is as morphing back and forth sometimes it's something where we should just really understand it to be something that has nothing to do with displaying times in channels as program with things than other times depending on how it's used we now will really understand the terms with respect and i think actually that's exactly what amazon is arguing in that we are opposing what we are saying is a program guide is a way to find a television programming you could find that television programming in various ways one way to do it is by looking up time and channel information and that's a fairly conventional television guide what other ways prosecution disclaimer to exist several things have to happen the first thing that has to happen is we have to affirmatively disclaim scope and i don't think that that's true here by removing the internet delivered data limitation altogether we broaden the claims we didn't narrow them and it's well established law in this court that if you're broadening the claims you can't be disclaiming matter altogether i also think that the evidence that amazon relies upon here to suggest that the examiner thought we were affirmatively disclaiming the internet doesn't suffice first it's worth noting that this court suggested in in over peer vs safari water it's the applicant statements not the examiner statements who added we altered the claims to to eliminate the internet delivered limitation we did not say in doing so that we were giving up internet delivery of data quite the contrary and here i was no two points on his instance write the patents he's didn't argue during prosecution that regularly received television's signal also included digital technology the court says that doesn't matter because the absence of such an argument does not necessarily indicate a clear and deliberate disavowal talks about that so that's correct i think it's worth noting here though your honor that far from acquiescing to an idea that we were giving up internet delivered data are what the applicants said was quite the contrary what we said was various types of non internet delivery means quote our only examples of such ways of delivery we pointed to the specification as saying that quote those of skill in the art will understand that numerous other transmission schemes can be used to transmit that data scheme and i think it's also worth noting that the patent itself talks about implementing the innovation in quote a distributed application in a broadband network architecture without the in the innovation here has to do with taking its information supplemental to a t v programme from the internet and feeding it into the user alongside the television programme so while i'm watching a sporting event for instance i could get a  that's the internet delivery of data was going directly to the user so that you you deleted that and then you rerouted that internet data delivery over to the remote facility which is not the user it's central with the delivery in fact i think now is entirely agnostic as a result of the change in the claims so what that what the claim original said we're delivering the data via the internet the examiner said the specification doesn't require internet i don't see support for that so we would change the claims to remove any limitation as to how it is delivered and just to say we gather the information in the first place from the internet we package that together with the television signal into a da feed and then the user receives that data i think by removing any requirement as to how the data feed is delivered to the user we've pretty clearly broadened the claim so that if we imagine imagine for instance we had an originally a claim to a red car and we changed that claim to just say a car i don't think the proper interpretation of that claim is any car except a red one by broadening the claim we haven't given up ground quite the contrary  please the court like to begin with the data feed terminal moved interactive program guide with respect to data feed i think the only way one can interpret the prosecution of history in this case is to find that the applicant excluded internet delivered data from the claim in order to secure approval of that claim and i think hope that the point of removing a limitation broadened for the i think the problem with that point is they didn't just remove internet delivered data they replaced it with the term data seed which the examiner had made clear to did not include the delivery of internet data and that's at pages one thousand and two and one thousand and three of the joint appendix so you have the removal of internet  replacing it with the very term that the examiner had to find not to include internet delivered data and then the third aspect of this which destroys any argument on this front is the very change and just general for it to which is at the very time that they a lemonade in it delivered data and replaced it with data feed they also made clear that it was the remote facility that received the internet data and they did not challenge the examiner's conclusion and this is a own actions the amendments any construction of the term that would include internet delivered data we have to make them inferences to get their right we're not we're not working with them more classic form of prosecution disclaimer where it's the applicant that's making certain express statements and then we can see and read and evaluate and understand what the applicant is giving out here to the examiner saying something you have and making an amendment and now we have  second i think the applicant did make clear that it was adopting the examiners interpretation i don't think there could be any stronger indication of that by the very amendment to the claim which eliminates the termit issue and replaces that with data feed which the examiner had to find to exclude in that delivered data and then the separate amendment with respect to a remote facility and then if you look at what the applicant said and doing that this was on page ten thirty seven of the joint appendix it said that the reason that they were making those amendments was to moot the one twelve objection the very objection of the specification did not disclose internet delivered data that made that crystal clear so i don't think they could have been clearer and if you lined this case up with cases like biogen and plan genetic a actually the prosecution history is much more compelling here and the in the plan genetic case the court said that the applicant didn't have to use this very term issue or make clear that it was a defect disavowing it in this case the apple can't eliminate at the very term an issue and then use the term data phaedrus the examiner had to find to exclude internet delivered data and i think that in fact if this prosecution history doesn't lead to the conclusion that the public is title to draw that they excluded the term that there are going about here today that it's hard to conceive of any prosecution history that would and i think again going back to that the purpose of a line in the prosecution history it's the public notice function that the public is entitled to look at this why i think that the the more pertinent part is the examiners conclusion that the specification did not disclose the fact of the damage what the examiner said at one thousand and two is going to panics was it didn't even mention or hint internet delivery service and so it and so i think again that takes you back into the prosecution history of the of the apple can seeking to resolve the one twelve objection and it's amending t claim to make clear that he was excluding internet for data if we didn't think the prosecution disclaimer was really clear enough then one well i our position relies on the prosecution history i think if you didn't think it was clear enough then you would be an odds with your president in the biogen case in the plan genetic case and you would be completely reworking the prosecution history of intrinsic evidence of the prosecutions and i guess i was just wondering if you were thinking there's a written description defect or something like we're not arguing written description here today your honor i think what's critical for the prosecution history is whether the examiner was right or wrong and written description we think he was or whether he was right or wrong doesn't matter what you look at is how they responded to that rejection it was at the point that the examines examiner had twice rejected their argument that the patent did encompass internet delivery service they had a choice they could have appealed the examiners rejection they  could have refiled and instead what they did was they speak to they sought to address that rejection to move it in their own terms at one thirty seven of the joint appendix by eliminating the very term internet delivered data and replacing it with data feed with the which the examiner it had said clearly did not encompass this is a carryover same from one thousand to one thousand three internet delivered data and again they amended the claim to make sure that it made clear that was we've decided that the technical dictionary definition of that term may have no definition this is the one nine hundred ninety six definition at page fifteen sixty one of the joint appendix which provides that it refers to electronic program guide but but acknowledged in this case that page six hundred thirty seven two or three of the joint appendix that electronic program guide an interactive program guide should be conservative consistently and what the definition definition says is that the program guide refers to forthcoming schedule and he would have thought that meant forthcoming channel schedule information which is precisely what one would think today precisely what the plain meaning the dictionary definition non technical meaning of those terms would mean a guy tells you direct his client invented a new kind of interactive program guide everything you're saying is right about prior existing interactive program guide and then they went ahead and vented a new car and then if you look at figures six and seven you see the embodiment that don't have any display screens showing an ability to scroll through program listings for different television channels and so therefore maybe there's something going on here that not quite like what everyone it understood before to be an interactive program guide and i think the problem with that is because twofold one is if you actually go back and look at the patent the figures that he's referring to you together is that as your honored mentioned and what we're talking about here is interpretation in which time and scheduling forthcoming information is is the minimum requirement of an interactive program guide what the invention tr claim is additional features adding on top of that of this time schedule forthcoming information and sure that they can do that but they can't change the fact that the person of the skill of the art would have understood the interactive program guide in one thousand nine hundred seventy two at least include time and channel forthcoming information about forthcoming programming and that's the problem with their interpretation in the district court correctly recognise and i think you know look look at their interpretation of this term and then i think it all falls apart their interpretation of interactive program guides is that it's anything that helps you find programming well that would include a google search i could put in the name of the programming and find a list of things and in and of content it clearly interactive program guide can't mean that the only the only way that makes sense that in light of the extrinsic evidence of the dictionary definition is that includes forthcoming information and roe v itself and the jumpstart case and we've mentioned this is a seventeen eighteen of joint appendix said explicitly a program guides provide us rescheduling information for upcoming t v shows and that's the same as i don't i don't believe it's the same time you're on the liver but a bit it's it but it's the term that we're referring to and so i think it's evidence of how that term is understood just as those technical dictionary definition is and i think to that end it's also relevant to the specifications of the one twenty eight and the two sixty eight patent which is to succeed patents not for this court but if you look at th specification they give you further indication of what a person skilled in your would understood stand that term to me and they made clear that they would understand that term to include scheduling information about forthcoming program what course we would all think of when you picked up a paper copy of the television guide and what the person of skill in the art would have thought an interactive program guide meant in one thousand nine hundred seventy that even though it's electronic it would still require you to have time and schedule information because that would that is the information that would tell you where to go how find to the programming that we're going to the word boys something like computer state of interactive program kind of claim and then computer twenty years ago with something much less than a computer today what would you be saying fame thing you know this claim is stuck to the computer as it was understood back in the mid ninety's and look there's there's no question that technology can  meaning of the disputed claim term there was scanner there was a technical definition texas tech technical dictionary definition that gave meaning to that to the person still on the out what it meant it understood that term that might have that meaning that meaning can change case where the court was confronted with a situation where it was clear that the technical term had a meaning to a person to film and if and even that the pattern itself contemplated that it could mean that the television signal issue could have a broader meaning channel information that meaning cannot change over time and that meaning is strongly supported by the ordinary usage of that term a program guide something that tells you where to go to find the programming which will require time schedule information thinking it's worth noting that i think there are three independent problems with the district court's claim construction each of any one of which would require reversal we've so far focus most of our attention on the first one the specification i just want to briefly highlight to others the second is what is what are people of ordinary skill in the art what would they have thought at the time that these terms might meant mean or would include  my learned counsel suggests that we should look at other robey patents from the same era as as persuasive evidence if you look at those other ruby patents they tell you that people of skill in the art at the time that this application was filed clearly contemplated a programming guide using video on demand the roe v six forty three patent filed less than a year later was intitled program guide system with video on demand browsing suggesting that a program stipulated that interactive program guide an electronic television program guide should receive the same construction so the district court construe them the same way we have a feeling that you know your honor and for the simple reason that the district court in those patent claims also construed other terms adverse to us so that while we think that construction was wrong had we appealed it it wouldn't make any difference we couldn't oppose the summer the simulated summary judgment of non infringement even if we won so i think those claim definitions are mo as one suggests that there's a waiver argument but but i think frankly that can't be right the only reason we didn't appeal those is that it wouldn't have mattered it would have made a difference we'd be asking this court as to those patent claims to case is a specific issue a patentable subject matter where the question was or do system and method claims stand or fall together i don't think it can be right that you must appeal everything or you or you lose the right to appeal anything  o with respect to the final point to make happens a lot has always allowed later developed technologies to fall within the scope of the claims what amazon has done here is to try to  define temporal limitations into claims that lacked to say in effect program guides of the type that existed in one thousand nine hundred seventy and we think even those guides would have included video on demand but it's wrong to say that