n puts all of its legal legs in the district courts basket so beaten comes of this for they don't have them offer any reason to from unless this court exactly adopts the prosecution disclaimer ruling as found by the district court district court stated that premise by just one i don't have a particular record citation to show where we disagreed with that proposition but i think your honor is observing that the prosecution comments use the term streams is there a genuine dispute of material fact with respect to any other claim limitations or is it just the different video files limitation that's the limitation of the ruling on appeal here i believe there are some other claim limitations that  were brought up in some of the summary judgment motion but they weren't reached by the district court outcome so the district court the point of our appeal your honor is that the district court misjudged the point of distinction in the words used to distinguish group dea and here's how the parties both agreed they both agree that goop discloses switching between it's different streams but the streams are different even in group up and you see that on page seventeen page thirty of the read brief and you see that from the word itself in group and i can go to page eight or nine of the record paragraph ninety six of the reference this is a quote directly from their quote the video streams have different timelines and also vary by quality if you're looking on the geography of that page is the top left i'm sorry the top right of the page a few lines down the second column the video streams have  timelines and also vary by quality so everybody agrees that group they had different streams so it just can't be that when the inventor stated in passing that their own invention has completely different streams that that was to make a distinction that was a point of similarity not a point of distinction and what ended up in the district court's ruling was some some idea that the statements that page thirty four sixty two were or unable to some similarity in the way group does which screams render in the same way so the district court use the terminology from stores multiple street versions of the audio and video content for playback speed which is completely different from cascades video switching from one stream to a completely driven stream without any alterations to the video or audio that's that's an interactive factor and i was going to right now read those exact words ok this meaning group the system is completely different than applicants invention where the video is switched from one stream to a completely different stream without any alterations to the video or audio so the what's being stated there is the point of distinction is switching without any alterations to the video or audio the exact allowed the claims it said the allowance was based on a pont upon its agreement that quote cascades i'm putting in a listener but cascades claims all features  switched from first video a switch from first video data to second video data as the squoze by cascades the first video dad and the second video debtor data from differing points of view that i mean why then doesn't the prosecution history support the district court's claim construction because cascades of this claim it's now argued for construction when an attempt to do avoid rejection based on who on that point your honor the district court actually rejected arguments that the claims are limited to switching among different points of view there were that was the actually the focus of the claim construction briefing the marking briefing and proceedings below for the  defendants b t n advocated for a limitation in the claim construction so that the different files had to be different points of view but there is a claim differentiation that that's contrary to that position and there are a number of other reasons contrary to that position so in fact i don't even believe your honor that that excerpt that you just cited your honor from the prosecution history the examiner statements i don't even believe that was mentioned in the red brief i think that ship has sailed in terms of the parties trying to limit the scope of the claim to only switching among different points of view because that that argument just didn't fly even a no no no that's not what i'm saying isn't that an unambiguous disavowal of a claim scope that encompass video files that are not completely different from each other if i understood what you say correctly your honor you were naming the examiners statement after these are that i'm asking you sure question that why i'll tell you exactly because the words of the applicant which well which is what we really focus on when ascertaining prosecution disclaimer state completely different than applicants invention where the video is switched from one stream to a completely different stream without any alterations to the video or audio again emphasis switched without alterations yes and passing completely different stream is a phrase in this statement but that's not a point of distinction and it could not have been a point of distinction because group the had different streams everybody agrees that group to have different streams so it was therefore wrong for the district court to find a clear and unmistakable unambiguous disavowal because there was no distinction of let me turn up to the infringement issue there was no distinction in these comments over a system that used image resolution differences among the different files that's what the b t n system is it's called  adaptive bit rate streaming and that involves say switching from a to forty p image resolution to ten a t p image resolution so b t n switch there's no dispute it happens with alteration inventions switch it happens in the prefer to bottom and in the claims without an alteration and where it comes to the point of distinction allegedly found by the district court b files are different group those files are different inventions files are different that just wasn't the point of distinction and especially so in the way the district court found that it was a point of distinction the district court found that the emphasis was supposedly on cosmetic differences in visual experience differences but you just can't glean that from the words i read from the record nor from the rest of the larger paragraph so your honor there's a briefing on on several other grounds for reversal and of course i can take questions on any of those but it's enough your honour's that the district court misjudged the point of distinction in these prosecution remarks from thirty four sixty two and we therefore respectfully request  not very much but we brought that up in part as a service to the court as a service to the bar because it's very rare that this court or any court of appeals gets to pass on the proper legal interpretation of the discovery rules and the issue here is that the discovery rules as they stand do not state any mechanism for shifting of fees to reimburse for the briefing on a motion before us the second deposition  all the cases that were brought forward by by bt and none of them actually hold that briefing cost reimbursement is available when you get a rule thirty order allowing the second deposition of an individual and i can go into detail and you have any of those decisions so there distinguishable but the main point of argument is you really rule thirty seven it doesn't apply to the scenario you read rule thirty it doesn't boom my point says that the prosecution history language that was cited by the district court does not in fact result in the disclaimer that the court found but he glosses over the words of the disclaimer and and says that in passing the call the inventor distinguishes it over got the mentioned that his the dreams were completely different in the cascades invention if you read the the two it's only two sentences you read them in context it's very clear the first part says that cup that is directed to a system that stores multiple speed versions of the audio video content so what does that mean it's got the same audio video content but in two different speed versions fast slow ok then he goes on to say this and this can only refer to what was just said in that one sentence because that's the beginning of the whole argument and this goes on to say this is completely different than applicant's invention where the excuse me where the video is switch from one stream to a completely different stream now he would gloss over those words but in context that can only mean that we're talking about a stream that has different video content because the first one is the same audio video content just at different speeds and the second one is saying we have streams that are completely different without alteration to the audio in video so they are completely different different content and we're not changing them we're not making them fast or slow or anything else we're just using different thre so he's making two points there and i think your keyword is completely yes completely different yes i think modifying different i agree with that and based on that the judge correctly found that this is a disclaimer of streams that are not completely different and that if you simply have streams as the judge put it in his claim construction that a mere alterations of each other then those are not within the scope of the  has been specifically disclaimed and i think that's all there is to this case there's not much more to it it's very straightforward the judge did a detailed analysis of the prosecution history the argue the particular office action response a tradition here is not very long all of the arguments that they make as to why the judge was wrong simply don't fly for example they say that well really what this was all about and i think you probably saw this in their briefs was all about smooth switching inventions all about slow switching well first of all there's no mention in several of the claims that run to rejection at the time and all the claims warrant a rejection there's no mention anywhere in many of those claims about the concept of smooth switching you'd have to somehow read it in there nor is it mentioned in this passage that we're talking about the judge very carefully took the paragraph let's be clear it is mentioned in the passage but i think what you're on some thirty four sixty two in these acts in paragraph but i think you're missing what for me was the argument that persuaded me they were right about clinton switching which on page thirty four sixty two in the same paragraph right after the sentences we're why who is different that is different from the one i just made one hundred percent and what i was trying to say was when i referred to the passage i was about to speak i was referring to the entire paragraph and i was going to make the point you exactly just made that there are other points exactly in there where they do reference and switching but certainly not in those first couple of sentences i agree with you on exactly on that point they also they also make the point took that long passage which he broke into four separate categories and he pointed out how each one as judge moore pointed out was a different argument as to distinguishing over got to and with that i will said if you have any questions about the sanctions we're happy to rest on a brief on that i think the statu the cases are clear that you can indeed grant sanctions it wasn't just for a second deposition it was because of a belated production of documents as was stated in the fact that required a second deposition and the single case they cite from the seven circuit on that point was in fact didn't deal with the question of whether sanctions could be granted against the party in that particular case the only thing that was reversed was and challenged in the first place was whether they could grant the sanctions against the lawyer the sanctions against the party were not even challenging they were upheld well having been a project for sixteen years i always felt i had you know addition to inherent powers thirty seven gave an awful lot of leeway under a n c i think i agree thank you that first sentence from the passage as saying quote it meaning group has got the same audiovisual content but that's not what the passage says the passage actually points out that there are different streams in group just the same is the invention and again i come back to my main argument it's not a point of distinction they are making to say even the word completely different streams because they are completely different streams in group paragraph ninety six of group says that also when quoting that passage from the file history what we just heard is that  my brother ended the sentence he was quoting at completely different streams full stop period but this passage actually goes on without alterations to the video or audio and finally judge moore in response to your observation about the word moreover we address in a reply brief that page six and we showed that moreover an accepted use of that terminology is for introducing an additional and important fact that supports or emphasizes what you have just said well see i read this very clearly has another reason to support or emphasize that group does not result in the rejection not of reason that is the same as the priory i don't see snit switching which is in the more over sentence as being what's being talked about versus that i understand your honor and that's that is how the district court viewed it as well the only final request i would make of the panel is to see how this how the paragraph actually ands and if you if you  view what's interesting to me is the district court did not i believe it did not quote the final sentence of the paragraph in the final sentence to me is if there's a tiebreaker to resolve this ambiguity is the final sentence and  we're on the record this is the same page it's thirty four sixty two i believe  is the summation of all the sentences that have come before and it's the wrap up which to me it resolves that all these really are talking about the same thing otherwise what would alterations in the video or audio mean we've never heard any position from either the district court or from bt and what switching without alterations could possibly mean other than some emphasis by the inventors in these remarks on the way we have smooth switching which means the first of the comments group that doesn't have some switching so unless there are any further questions your honor of know if i apologize one more point there was no order on documents distance covered dispute and it's because of the documents were produced before there was any need for a motion and the need for a court order the only question before the district judge on one point during the process it was subsequent to the first didn't prepare for that question but it was very very soon after the deposition when they first made the request for the e mails particularly the e mails were produced so it was never before the district court that it had decided whether there should be an order to compel documents so that means that the