mr lee whenever you're r findings of disclaimer made by the district court with respect to client contraction as well as the district court's further error and failing to draw inferences and choruses favor with respect but just hypothetically we like to know that these cases out when there are multiple issues is that correct that if we were to agree with the district court's claim construction and cellular based location data  yes your honor should this court be inclined to agree with the district court's conclusion that chorus disclaimed any and all views or crowd source we found for example that the district court correctly construed that term with that and the matter are there other pieces dealing with that that would have to be dealt with  this court found affirm the district court's decision as to the disclaimer with respect to database that would resolve the case with respect to infringement ok thank you the underlying statement and prosecution had to do with the whites reference wherein the applicant chorus distinguished the why the wise reference as lacking a database of property information that was stored locally on the device the only database disclosed in wise was on a remote server accessible through the internet and then the prosecution course explained that the claimed invention in addition required a local database on the mobile device from which the property information must ultimately be obtained database and as such there was no disclaimer as to access to ever most server via the internet that and michelle determination by the district court during original claim construction when that issue was fully briefed it up itself demonstrates that there was no clear and unmistakable disclaimer respect to the internet access now the district court subsequently concluded otherwise months later at summary judgment but that was based on a missed after henchmen of the district court's original claim construction order in that original claim construction order the district court found a different disclaimer the district court held that statements made in prosecution require that the term storage unit that appears only in claim fourteen must be limited to a database that was the only disclaimer found in the original claim construction order summary judgment the district court cites back to that disclaimer with respect to storage unit but incorrectly concludes that that disclaimer was with prior order in a summary judgment order similarly the district court erred in defining a disclaimer with respect to the cellular base location data limitation the court summary judgment determined that the court that the chorus disclaimed used the sources of location information during resume anation tellingly zillo never advance that argument below  it seems to me that we're really several limiting changes made during week sam to the earlier claim language would you agree with that your honor i would agree that there were certain certainly amendments and limitations may during read them a nation i think it's important to remember the context of those limitations and amendments and they were primarily with respect to the florence reference and the florence reference disclosed overcome so certainly the claims of no issue here on amendments were made to the claims to overcome the prior art florence reference and then i some cellular baseload cat location data must be used the disclaimer that the district court found a summary judgment was with respect to any few other crowd source sources of location information that may include location data beyond cellular base location data and that within th is judge crowd i'm a little confused it seems to me that the modify plain language explicitly narrow the scope for acquiring location data to an external cellular based positioning system added at summary judgment was to require that that location data come quote directly and quote from the cellular positioning system and in doing so the district court explained that it was adding that language to remove any fused sources of location information from the scope of the client noting that those few sources of location information are not coming directly from a cellular system but are instead necessarily utilizing cellular information in addition to non seller information and a fuse or combined manner there are at least five and dependent bases from which this court could affirm the judgment below three of which relate to the database limitation and at least two of which relate relate to the acquisition of cellular data to define an area of interest in terms of the database like the database limitation this court could affirm based solely on the essentially the source code here not just the source code any other so if we look at the infringement contentions there are there is no theory of database they simply say defendants products have a database on them to store property information in zillah's responsive not infringement contentions we pointed out you haven't a dentist site where this database is and deny that we have any such database on the mobile device nevertheless despite looking at source code despite taking discovery they never articulated any theory of how the defendants had a database on the mobile device until the expert report by dr martin is so source code is part of it the motion that was brought which i believe is that a  appendix had three bases its it asked the court to exclude any theories not disclosed in the infringement contentions it asked that they exclude any reliance on source code because source code was not disclosed and  asked that it exclude any reliance on the doctrine of equivalence because there was no such theory under the doctrine of equivalence articulated one thing courses raised in this appeal is well in our motions elos motion they refer to a theory just one theory that is only in the heading and it's unclear what that's referring to but if you look at the actual contentions there is no theory no explanation of where the database is on the accused devices and zillow asked in its motion that anything that wasn't disclosed in the in the contentions be excluded and the district court in a very thoughtful opinion granted that request that the court found that there was no diligence on the part of course to amend its contentions that the local rules in software cases require the identification of source code if you're going to rely on source code and that even though prejudice is not required to have granted that relief to zillo th you if you'll indulge me let me just start sort of from the bigger picture the claims were allowed in during reexamination they soley on the limitations relating to selling their base location dat and as the court has pointed out those claims were even narrowed at one point the claims were having having a code that corresponds to receiving or know that the area of location data and then it went to configure to to be clear this is undisputed the accused products don't have any way of determining their location the queues a all they do is ask the operating system where am i and the operating system returns a lat latitude and longitude which is then used by the accused at the  any specific way to use cellular base location data but it's true as counsel said we did not focus on disclaimer during our for summary judgment motion the district court did that analysis on its own which we think was correct and found that as an alternative basis to grant summary judgment counsel we started draining explain to me a question that i have here and how does the operating systems of the mobile devices see the i o initially and growing operating systems how do they determine location we don't know your honor this is one of the bases for for summary judgment well all we know is that that st of all it was undisputed that they keep it secret the two operating systems are apple and google and neither apple nor good will disclose exactly what algorithms they used to determine the location of the device even course his own experts and mid they did not know how they worked so and critically chorused took no discovery of apple or google they never served a subpoena on them or sought to learn how they worked instead they relied on hearsay in web statements by apple and google that they use a combination of sources which include cellular they use what apple and google say in these web statements is that we use we use said at one point he thought they might ask the cellular carriers where am i so in other words my phone if i could ask could send a signal to the cellular carriers and say can you tell me where i am and the cellular carriers could possibly use some type of triangulation to determine where the phone is and report that location back now that would be as the evening when one system works which is referred stirs and all the witnesses agreed they didn't really know how that was done and eight sec at least one other possibility is that they use crowd sourced cellular tower location information and let me just explain how well mr starr's explain this to the way it works is when you have your g p s on your phone your phone is receiving cellular signals and apple and google might  three in this manner it's probably located in your room all of this happens where is the location of the food stored on the on the   rely on remote databases on the internet and now what it sounds to me like what you're saying is that we don't know and it may it may be you may rely on the on database issue is unrelated to the determining location by cellular based location ok i meant determining the location yes there's no issue about where that stored that that doesn't matter because the database is based on storing property information applications so into the there it's not really stored what happens is if you want to look at a map of where you are if you've ever used the you can be anywhere you are and hit a button and it will use the my location button and it will show you a map of your general location and it will it will display icons of properties for example for sale in that location so one of the issues is where is it getting its location is it based purely on cellular data we know what data is being used and that is determined and controlled by the operating system with the algorithm for which we don't really understand and one of our arguments is they have an implicit claim construction that any use of cellular data in any manner satisfies these claims because they don't really know how it's done and there's lots of different ways it could be done but that implicit claim construction is wrong as a matter of law but separately from that is where is that where are they getting this property information because that's a separate limitation is the property information coming from a database on the phone or as in the are they required to access a remote database to pull down this property information and frankly it's undisputed the latter is correct just as in weise the accused apps cannot do not allow users to search for properties without internet access mr austin lines here i was wondering if you could address the disclaimer issue that mr levy discussed a debase construction there were two issues presented to judge of our st of all claim fourteen did not have anything about a local database it just said a storage unit for storing property information we argued that based on the the disparagement and amendments to the other claims to distinguish we we see in file history that you had to read a database limitation and to claim fourteen judge robot agreed found that with a disclaimer and read the database limitation to claim fourteen now separately we hadn't we made another argument i know this is unusual but during  examination they your original claims based on the we cement ment's simply said the property data was obtained from a database on the local device during reexamination and and no for no reason to distinguish prior art they added from a database on the device and a remote database they but we argued that limitation rent the claims indefinite because this just shows what you're saying is they took back in reexamination with regard to the florence reference what they had given up in the original disclaimer  connection with the we see reference exactly your honor we argued they were attempting to broaden the claims back out because they knew that the scylla accused dabs relied on getting data from a remote database now what judge robe are decided which is reasonable is that it was an iraqi style of all because it's possible they could in the st instance get the data from a remote database but this has to be stored in a database on the local device such that it was ultimately retrieved from a database in the local device now that is actually how the the product made by the inventors worked st of all it had no cell cellular connectivity at all so that was just there's one sentence in the whole pattern about cellular connectivity that's it they never invented anything to do a cellular connectivity but that's beside the point but the way it worked was they didn't have at the office they downloaded the multiple listing database to the device and then it would work in a standalone manner without any internet access and that's the st embodiment disclosed in the past it's a standalone device that doesn't require internet access now judge ro bart never addressed whether the disclaimer required standalone capability he never addressed that and claimed construction because it wasn't right for decision there was no term to construe to address that issue we always believed that that disclaimer required that prevented or disclaimed any device that required real time access to a remote database to operate as a passel of does you hear me yes i can was downloaded from a remote server into a local database on the mobile devices that run the apps from which the adat property information on the local database could be searched and retrieved as the user select a different property icons on the map and with respect to councils argument that course broaden the claim scope during reexamination that's plainly not true that the property information be obtained from one a remote server and then two stored in the local database that's not broadening that's an additional limitation specifying the manner in which this property information is going to be obtained and utilized and with respect to the cellular bay it cellular base location data council concedes certainly that the apps are there that they call the utilize cellular signals and paying cell towers now it's true we don't know exactly how that cellular information may be combined with other non cellular information whether it be fifty percent cellular and fifty percent g p s or some other combination but that's not required by the claims under a correct claim construction of the cellular base location