thank you judge larry good morning your honour's may have please the court under either side's case law in this case without lexicography or a disavowal one cannot limit the plain meaning of a claim term to features of the preferred embodiment but that's what the district court did in this case with message the communication between a sender and a recipient but the case here is even stronger for reversal on message in particular and that's because there are usages of the term message within the intrinsic record that are just not consistent with the limitations imposed by the district court the meanings imposed by the district court so first  turn attention to notification message that something in the intrinsic record it's a message and i think nobody in this case disputes that those can come in over the internet which is otherwise excluded by the district court and those are e mails another sense excluded from the term message by the district court second even if we were to focus just microscopically on incoming messages into the preferred in s ten incoming messages because we're asked to focus just on those we have yet further examples we have an incoming message that's in e mail that's a column twenty three lines two to five i'm going to refer to the o c seven for patent i believe that citation is column twenty three that was new matter that was later added that that particular verbiage yes your honor was added there were a couple columns of more than a couple columns  material but new matter added that the that may be new matter in the sense of the words were not there but it's not new matter in the sense of disclosure that was nothing already available for example i guess i was wondering if column twenty three reference is really a red herring because it feels so aberrational compared to maybe a couple dozen other references to this very repetitive troika of types of messages right i understand on messages fax messages and messages ok and then finally you know there's this one place where it says e mail messages on messages  you look at all the context before and after that quick reference it goes back to the repeating of types of messages so i guess what i'm trying to figure out is to what extent should i give some intentionality there too the reference to e mail when you look at the other twenty some odd columns of suspect well first dedicated to lying op about in a messages like the phone line has to be set up to receive either a phone call or a fax or data message and so that made me wonder ok are we talking about a particular kind of data message the time it comes over a phone line that is somehow the equivalent of a fax message or a phone call so let me answer the question and then i'll expand back to my argument because i think this is a good segue the data dedicated data line column for actually proves our point on the other aspect of the claim construction because it's not necessarily a telephone line to merge is dedicated data line which means that a person of approaching the intrinsic record knows that one can have a dedicated data line bring in dana messages we also as i mentioned a moment ago you know confirm that they'd a message was known in the yard as including after reading this entire path correct and so what i'm trying to figure out here is when this pattern issued or filed in twenty years ago after reading this pattern and understanding what this person  is they're trying to accomplish in with the ultimate claimed it would see that the inventor was trying to solve a problem where if the person was away from the office and was receiving a phone call or a fax message or something call the data message that the person couldn't get access to because they weren't in the office and they needed to be in the office and this is some kind of system where you set up a server that can somehow get those messages and then email the person wherever they may be maybe they may be on vacation and then they didn't get a notification that such a message arrived and then they can access if the server  that you would have a system set up to send a notification e mail to let the person know that they received an e mail it does that's not really what the written is describing and it doesn't really make sense to me why someone would create a system like that or at least when you read this patent it doesn't appear that that was being contemplated at all your honor did correctly identified some problems being solved by the preferred environment in the claimed invention that that's absolutely right but what what your honor perhaps has overlooked in the statements that you just made is that the use of e mail into a central secure server where you have the nikkei to log in and then sending out of e mail of a notification message one is coming in itself circumvents the problems identified in the back room of the invention so we we also see i mean this is perhaps not intrinsic evidence but i think it's a valid point that it's not nonsensical to have e mail into a central machine and then a notification e mail out and that's in fact what the entire infringement case is about so the very fact there's an infringement case means it can't be considered nonsensical to have a system like that if i can point to one more area of the intrinsic record and addresses some of your concerns judge it's that column twenty six lines sixty six through cantone seven line five shows messages coming in to the end of the us over the internet the word internet is actually in the passage us so the this is something that the intrinsic record a message and it comes into the m s d s over something that's not just a tell us is the translation system for the future that's right there has been an intermediary in this environment as described there has been an intermediary action where initially the message comes in and over a telephone line i don't dispute that as a description of the preferred body image but again we're searching for the meaning of the word message in the intrinsic record in the significance of being intrinsic evidence in conflict with the district court exclusion of internet or requirement rather of telephone line but of curious you've got a plot of claims here twenty  your honor there's there's nothing in the deep end in mind that explicitly claims e mail as an incoming message but i don't think that's the test you are i mean again the test is plain meaning and then we ascertain if there was a  who we looked at the specification and the prosecution history which i haven't yet spoken about but in the prosecution's history e mail was explicitly noted and agreed to by the examiner as something within the scope of an incoming message into the system exam or even applied prior art e mail against the claims in that aspect essentially with the panties consent with the applicant's consent because every party in the prosecution history understood that e mail that comes in over the internet into the preferred embodiments m s g s can call as a message in your honour's we would ask that the court reverse on all three areas where we pointed was nothing limiting with respect to these disclosures if we follow this court case law that has existed philips we see you know one number of cases whether that be more recently trustees of columbia that must be read in context and when you read that integrated document and each of its columns with the claims there is only one conclusion and that one conclusion is we have a system that has messages that are inbound different the notification messages there is a species of communications or messages that are greater but we we have effectively started there's a generic communication we have species here that include for example in the messages notification i suggest and they don't overlap added to this case and j to global why is that because if you look at that separation of assets that is on respondents brief page fourteen the statements that have been made to the central district of california about these assets and the claim arguing and they argue that these messages are on an incoming telephone line they argued in fact those claims actually resided on a telephone right some of the claims did resign on telephone line three to one patent which actually was separated the bottom left of its own respondent actually is not psychic on a telephone line and more importantly in the two thousand and five litigation council floor j two now empty subsidiary so the patent was the repeat the question you're sorry a message can be a fax message a phone call or data message and it just kept saying that over and over again the twenty four times with that in your mind the enough to read and interpret the word message in that claim as being restricted to those three things i can't answer that in the abstract because it may not be enough and i think it's a again given colombia given philips we have to look at the entire context and here we have the problem of the eventually being soft that we couldn't connect the user with the telephone line of communication and the problems with sex similes with voice mails with data transfers and that problem then being resolved and conversion process of the go i guess to what extent should and articulated purpose of you know  the incorporated into the claim language i think that's another question but my first question i guess you're saying you can't answer it because it depends on context but if if that's the only context i guess it sounds like maybe that would be going too far to read the word message that particular way i guess stated differently i would say this court has case law and i i wouldn't deviate obviously from th as your honor noted ninety seven if you want to include that you matter from twenty three and much like in trustees of columbia that new matter is perhaps in kompany three at bats confusing and perhaps referring to the stor notification messages it's unclear because the trick as you use the term is mentioned over seven hundred times in this patent and even in that context around click on twenty three or even a column for where it does differentiate between data message and e mail messages right after that the troika is handled in terms of what is described and called for only those three items and email messages in the problems of email messages are not described there homely the problems of the troi a the three items that are described at length in this patent and then when dealing with the conversion process which is ultimately important about what you're receiving over an incoming call on the system because of the problems of  is then after we deal with the conversion and the patent has clones about the conversion right especially about a fax but also about a voicemail and about a data transfer doesn't have anything about a conversion on email for the reasons you know already this pattern itself already tells you in column three of the other mention of email that those systems already existed and i would suggest to you that one of the reasons the apple and charles bubble the inventor converted his system after doing a change and have something that was patentable which lends leads to this is them of dealing with the three items converting them and providing notification messages and move you quickly to the attorney's fees question  sanctions motions and they responded and the judge below ruled against your will and then nevertheless said that they have to pay your attorneys fees papers but in fact it sounds like they did identify or or propose a willingness to at and t as a party to the case well i can answer that your honor first and to disabuse the notion that they ever offered to add e m t to the part of the case in their briefing they did everything possible to ensure the mt was not as a party to the case they just noted that there's just if there was a standing we didn't have any discovery in the case the parties agreed not to have discovery in the case until after the market hearing so at the more common hearing we were surprised to hear you amass was the only party in the case say we're not privy we're not bound i was party and it was only through this breaching process which that briefing was structured as an unforced ability not structured as a standing item based on the fact that you know really the parties you know are not the owners n the interim we had martin here and we had these motions that motions were denied just wondering you know sometimes there are standing related motions you know that occur and then ultimately the plaintiffs recognizes  why what happened here you know litigation is oftentimes an educational process where you learn about issues that need to get prepared and and so why wasn't that what happened here i would refrain the issue and what the judge learned through the two eighty five process as we file an exception is that actions of what you mess and j to say and t need to do need to be deterred under octane and it's not the in fact as we argue we should get fees broader than emotions as she found you know in in her words or that they that their activity had to be based on lack of candor and transparency in the sense that thinking about what happened through the mark in process so it's a low she granted fees soley for those motions in the standing and bringing empty that's why we come forward and say really these people knew from the inception of the case and they it was motivated as she found by the lack of candor and transparency for them to not add any anti they oppose those motions both in that were to die strenuously vigorously saying that mt shouldn't be added that they have the rights to proceed and it's at that point in the two eighty five when we have all this of information that the district court can see this and see that under octane this case does stand out they'd newington should have been a party to this case and that there was a litigation strategy that was an act of based on lack of candor and transparency and just like octane says in this report we should be deterring others other plaintiffs from doing the same and manipulating those statements made in the prior litigation if they had been re leave available and they weren't able to argue lack of privity and that they're not a party here would have been ultimately damning to their positions with respect to message and other terms that are not here on appeal because of what they sat in   that is that the theory of the cross appeal that there is sanctionable conduct for the whole case is that there was a plan i think you just heard to conceal the involvement of a m t or conceal the involvement of  is or can be a fax message a phone call or a data message and it said it twenty four times what would that mean in terms of our claim construction law i think it means virtually nothing in the sense that it's a preferred  statement and no matter how pervasively a preferred environment is characterized that doesn't necessarily mean that you import features of the preferred and volume into the claims and that that question is actually answered explicitly by the former case case one or both of those addressed that exact scenario and say that even exclusive usage in a certain sense won't justify adding this feature as a limitation one comment terminology was byte sequence feature in the lexicography said that had to be a machine code extraction rather than a file resource so it's not our case or today obviously but it was   doesn't discuss them necessarily as in a can be a kind of a context and then the summary of invention talks about how the president of engine involves receiving an incoming phone call and then when you look at the true purpose of the an invention which can be a tool for a claim construction it becomes clearer that as i was mentioning before that it  feels a bit a logical to collect up emails and then send a notification email to say that you've received emails at least in the context of this pattern and everything your hon or recasting my friend's argument falls under the heading of a disavowal argument my point was that it's not a lexicography argument and this is actually important this has meaning in our patent law because implied disavowal which is what he's going after is something  that addressed in the unwired planet case it's addressed in the voter case and particularly with respect to present invention statements and i think my friend when he makes that argument is referring to column five present invention statements that are equivocal as they are here simply don't count as an implied this about and even if they were unequivocal even if the statement was the present invention is your name your feature even those situations confront the vote case which we cite in our papers which says that that gets neutralized if you have broadening intrinsic record disclosure elsewhere and we do and i can point to chapter and verse on that in response to any questions i see my time is expiring unless there are any question