or motion was based on a reading of the claim language means for comparing to require channel selection and that is not a claim construction that was there prior to the trial so at trial the claim construction that was line seventeen three twenty i mean just the cortex restfully excluded those lines in the claim construction right there they are included in the claim construction but if you look at the claims construction record from down below apple made two very explicit attempts to read into the claim language for the structure of this claim turn off channel selection at the mobile fall apple first did it when it asked the district court ask district court to have language suggested that the result of the comparison would go to our channel selection function at the mobile follow and probably even more telling apple specifically than asked the district court judge to put in bought six sixty from figure six which is the algorithm performed by the control unit for and that box sixty six sixty specifically calls for channel selection and the district court refused apple's op attempt to do that and effectively rejected it so and apple never argued down below either line seven seventeen to twenty from column seven or the lines from lines twenty to thirty nine in column six required channel selection and that language there does not finish tell me why that's so because i mean apple asked for these phrases to be these lies to be included and they do relate to the figure that that seems to show channel selection and you're on it when you look at the figure itself box six sixty specific figure a box that requires channel selection if you look at the claim language itself the the function that everybody's agreed upon does not require channel selection and that's why the district court judge kept out box sixty sixty from the claim from the claim construction and in that context reading the language in column seven or in column six would not suggest to anybody that there was going to be channel selection at the hands that apple expressively made those arguments and lost in that context to try to now suggest that the language in column seven or in column six would now require channel selection as part of the structure would be wrong it would be an incorrect construction let me see then one other question when you get over to columns seven lines forty through forty two there's a fairly explicit statement quite explicit actually that the chancel action channel is selected by the mobile station and that's not as i read that portion of the specification that isn't talking about a particular by the minute seems to be talking about the  for the means for comparing is fundamentally that's a function that both parties agree to does not require channel selection the function simply gets as far as saying you have to make this comparison as a basis for channel selection that functions i mean and but the meetings through the most and the means is but the means only have to go as far as saying you have to have the structure that actually does that comparison as a basis for election not that channel selection actually has to be done claiming a team specifically has the function make the channel selection so any structure that would be required for channel selection would be with with claim eighteen cannot be in the structure for claim seventeen because the only structure that would be required would be the structure for making the comparison and it's as a basis for channel selection assumes could put in a team can be explained on the ground that claims seven that would tell us that the mobile station is not truly mature selection but the plain language of claim seventeen and particular the comparison stuff that we're talking about the only structure required there is to take the parameters and make that implies because you can send the request back to the network you can then have the decision be made at the network even apple agrees that this channel selection is simply making that request and if you're making the request one skilled would understand that th decision itself could be made at the network but more importantly the claim language itself because this is just comparison it's improper to read the structure to go beyond just comparing and to actually require selection mean as as fundamentally that's true and in the way or case where you were you look at a claim where you have the independent claim a dependent claim and the dependent claim has a separate function there's actually a presumption bad it is different and in this case the selection the very structure we're talking about for performing channel selection would be done in claim eighteen not in claim seventeen claim seventeen the language is very precise to say you make the this brief in which the inventors describing the invention and he says that the mac layer of the mobile device makes the decision between common itself there there's a simple there's an advantage gained simply by performing the steps of claim seventeen and having it value now sent down to the phone so the mobile station can know when to even request a dedicated channel that along address the congestion issue yes you can also then use it to go one step further and make the channel selection but there's no reason to have the channel selection be made the inventor statements in this case there's no ambiguity as to what the claims say no one's argued that so the matter statement would be extrinsic evidence but it is a function claim and i guess what i'm having a hard time understanding is if you concede to me that there is nothing in the written description that mentions that any of this activity occurring at the base station doesn't isn't that the end of the inquiry if you have to have you are limited to the precise function of the precise means described in the s yes your honor we are but the means that we're talking about here that apply to this claim language is just the means for comparing or you can we can't conflate means for comparing with means for channel selection  then seems to me you're assuming in the sense assuming your conclusion because you say that means for comparing for basis of channel selection does not include channel selection their argument is that it does include channel selection and the natural understanding of means for comparing for basis of channel selection in the sense conflicts that the comparing of the selection in the same entity and that if you argument during claim construction and lost so the district court when they actually had the language that would require this the structure to be including channel selection in the box six sixty is the best example of that is it explicit that's the algorithm even the judge says that's the algorithm and those are the boxes that are going to be run by the control unit the judge in during claim construction stopped short and does not  that the structure only goes to six fifty not six sixty then they've lost on that very point that we're all talking about and then not on the come back and say yup we've tried the case thinking that's what happened and justified based on control unit or three describing some seventeen twenty of the one or three is no he's not wrong that was part of it that there were also agreed with those those that citation seven comes have in mind seventeen to twenty but if you look at that citation and the advantages in language there is no structure that that sentence actually doesn't apply to the comparable limitation of it actually is because we were arguing over this for both compare and means for sending i think that's the only reason they're in both spots but really the main issue is when you when the district court had this issue right in front of it should we have structure for channel selection the district court agreed with core wireless and said no and now to justify that jama well they didn't have any evidence other than to argue that chelsea election had to be done at the phone to affirm that and deny jamel well the judge then changed that construction the judge simply changed it to say channel selection is now has to be capable hands that has to have the capability of chancellor and that is simply a shift from a basic argument that both parties head to head fatah about it's not just  side show that was the actual argument that apple lost on and that's the basis on which the entire case was tried you can look at the trial record the apple two and the whole case on the theory that the station didn't have t jury specifically why it was not relevant and the entire basis for this argument is what exactly happened at the claim construction i mean there is no other explanation for the judge not adopting six sixty because if the judge believed that structure was required he would have put in boxes sixteen to the construction because that is the only structure that's a very explicit inclusion to say channel selection must be done at the hands that oh wait six sixty th to be able to be capable of having channels doing channel selection you have data structure that does channel selection otherwise there would be no capability so that's that's too fine a distinction and in my view you'd have to say either the structures there to do or not and what the judge did when he didn't include box six sixty is made it absolutely clear that structure is not present and doesn't need to be present for means occurred my name is jill mueller with my partnership on eli i represent apple if i might start with judge price's question on the invention disclosure record and we're trying to find the page for the second disclosure record which is at least in part of the joint appendix there's also the proposal that he made contemporaneous with the invention disclosure record to the european telecommunications standards institute and this is joint appendix starting a page two seven six six and i believe  address is in part partially judge bryson on the first page of that submission to the european telecommunications builders institute there's a description of the current way that the cellular standard at issue operated at that time and it describes how the measurement reports were sent to the network and in the words of of nokia mr b allen the network can allocate capacity to the user equipment for uplink packet data transfer based on this report but then it goes on to propose a change in the change that's proposed by nokia by mr of yeah one was that the user equipment itself should be able to make the decision whether to send data packets on the rach which is a line seventeen through twenty are yet another way of expressing the same idea so we essentially express to the judge multiple ways of capturing this concept of the interwoven nature of channel selection with the language of the claim column six lines twenty three thirty nine refer to what is happening in box six sixty and you can see that from the context if you look at column sex broadly i believe it doesn't it doesn't have the interim numbers between forty and eighty that's exactly right but you're saying that that's has to be what it's talking about that's exactly right i was about to make the same point that if you look at the paragraph just prior it refers to box six forty and later tonight six eight that's exactly right and so that those intermediate paragraphs are referring to what happens in six fifteen and six sixteen it refers gives us the particular ways in which this decision is made calm seven lines seventeen through twenty could be clear it states explicitly that channel selection it's advantageous to perform in the control unit don't three was going to be clear if it left the word a the evidence in the record would not support infringement if it means advantageously and always with no infringement because the mobile device does not make the decision if it means advantageously and sometimes so i switch it off there's no infringement not depends on whether you're right in reading comparing for instance of selection to include the selection because if you're not right about that then the means plus structure only has to get you with cards comparison if you have to get your action and we would say your honor it is a perfect read that way because those words need to be given meaning for basis of such and also action but moreover there's no evidence in the record about what the network does with this measurement report which was used functionality and what w report which is a type of measurement report generated by the cell phone and such and that sent to the network that is precisely the type of report that was described in the prior art including at page two seven six six in which the change proposal was made  in the background which infringe these measurement reports the same measurement report was used in the accused phones to be executed functionality and what it does is it sends a measurement report to the network which can either ignore it or do something with it including by reliance other factors as well we don't know and there was no evidence put on by the plaintive as to what the network side operators do with that event for a measurement of reports that answer your question judge bryson to the extent that the theory is th event for a measurement report is always used for channel selection there's a failure proof that theory was never proven to the jury at trial and we think it be wrong anyways matter claim construction and that in fact the construction the judge love order judge davis adopted in judge deal struck applied required explicitly three six twenty three thirty nine and seven seven hundred twenty the channel selection occur in the mobile unit but even if that were wrong and that the the network could make that this decision even though the patents only discussion of that notion of the network deciding this is a criticism of it so proof of what the network actually does with the event for a measurement report so either is how they present lot of discussion in the briefs about whether the judge had the authority to clarify its claim construction but is if that's really even what occurred here and we've got a construction that that sets out a specific structure and i think this goes back to george well it's an initial question if if the jury was charged with that construction then and then the arguments were made about what that structure had to do i don't know why there would be any need for clarification going to do so we don't view the judge as having clarified or changed the construction in any way we argue that markman for i would describe as a belt and suspenders approach to this notion of channel selection and we asked the judge to adopt multiple ways of expressing the same idea oxic sixty that narrative that corresponds to box of sixty the judge did not adopt all of our references to that idea but he did adopt two clear references to this notion of channel selection six twenty three thirty nine and seven seventy three twenty both are clear we argued that position to the jury we took that position before trial in our submission of proposed findings of fact the judge and that is i can find it right here well i'll get to in a moment but we were clear before during and after trial that the intertwined bit of channel selection into the required functionality of claim seventeen and the fact that the hughes products do not do that was artifacts are car defense for not or basis for not infringement the judge post trial pointed to didn't change the construction he was particularly in words what the specification stated and what judge love had adopted in the market decision says no change we had argued from the beginning to the end that there was an intern twyman in the claim of channel selection three words are a mobile station and then it goes on to use the words channel selection or select a channel seven times now you're right roger it doesn't explicitly state verbatim this mobil station selects the channel but it's intertwined in every limitation claims in accordance with the disclose structures and there's no structure in this patent in which the network makes the decision so we can use claim differentiation to expand the scope of the claims beyond the disclose structure within the four corners the specification that's the first response the second response just question you asked the question could that claim be construed more narrowly to refer to a particular type of channel selection decision in which that is the only parameter being used to make that decision and it co patent in which the network is making the decision mobile station never makes this decision that sometimes it never makes that decision and that's clear both from the testimony of dr stark it's also clear from the qualcomm engineer who worked on the code that's accused in this case the actual s functionality is located within the base can ship in these products the baseband ships were supplied by then there's a cure for me and there's a jury verdict after hearing this testimony from the qualcomm engineers by videotape as well as the church we have a situation where the notion of the idea of mr b allen was to migrate decision from the network to the mobile he proposed the idea to the european telecommunications standards institute they were ejected the idea different view that the two parties had what the claim construction and that became evident fairly early in the trial would seem to me that you're taking a very different view of what the claim construction that that's the kind of situation in which we judge just denied the rule fifty but i don't see any place maybe there was in which anybody said whoa stop the train we're going down the wrong track here was there any place where an objection w request for a refinement of the claim construction to elicit this particular distinction that inch up being so important to the case now and there's two consequences of this i said two reasons for one it is for one reason  consequence we understood the construction of the judge to require channel selection be part of this process as conducted by the mobil station we understood that in the adoption of column six lines twenty three thirty nine and seven lines seventy three twenty and we during my opening statement during the examination of dr stark during the closing argument never a quest for clarification of the claim construction before i went to the jury we had no ground to request a clarification because we understood it to be exactly that  you today if they had thought that it was were otherwise there that the reference of seventeen through twenty and six twenty thirty nine did not require a mobile side channel so actually it was incumbent upon them to tell the judge that before the jury w to deliberate that never happened ok thank you honor i'm going to start with a clean make you think you'll just thank in terms of those that language if you look at that language it's all that entire claims about the mobile station and the only thing required in claim seventeen is a means for compare claim eighteen says specifically means for making that selection and that that difference in those claims under the can under your when your case has to be respected and you can't reach structuring for a meet comparison function that would include the selection function and that's simply what apple is doing and the argument that they're making now saying they had multiple attempts to try to get channel selection construed as part of the structure means for comparing will not be supported by the record the two attempts that they made and it's very clear in the papers are the two that i discussed before why didn't you o that's why we talked about it and said this doesn't matter to the point talk about them until you got to rule fifty and i think it's trial counsel which are trying now so at the time i made that decision on the ground that it was irrelevant and that was the better way to approach it but i really is it really if you look at the record the point that they're making that column six in column seven language you can search the entire claim construction briefing they've never made the argument apple never made the argument that column six and column seven were another bite at the apple to try to get channel selection as structure for means for comparison and and your case law makes it very clear that you have  this context where you have a function as claiming a team should respect that this and that that distinction and not read in the structure that would be for claiming in the claim seventy and finally the advantages for this are they vantage just for this invention you would