the shopper plaintiff appellant in the con this appeal involves a construction but two sets of claim language in the kinds patent covering the computer days indexing and i preventing a computer system like to start by addressing the statements in which in the kind of providing an overview of its invention and it says that there are occasions in which it provides all instances of the link terms but i think it's important to remember a couple things when looking at that prosecution history and that prosecution history appears at pages above and seventy eight to eleven eighty six of the joint appendix so a couple things i'd say about that first there are certain claims in the cons invention in particular claims fourteen and fifteen which do actually require all instances so when in the congress providing an overview of its invention it's not remarkable that it mentioned that limitation but the key distinction that in the crime was making in the prosecution history was about another distinction over the prior art for the prior art that was being discussed in the prosecution histories was a source called for the of us the primary distinction and this becomes clear when you read the rest of those pages from eleven seventy between for you as as described in the cited references and applicants invention applicants and this is the key sentence applicants are mindful of the fact the difference between the disclosures of the two references does not necessarily shed any light on the scope of an applicant's claims and then it says the next section in the next section certain claim limitations are specifically identified in reference to specific claims in the next section what that next section is unfortunately it doesn't appear in the appendix facebook doesn't say that next section but if you look at that document which you can find obviously in the records or on the p t s website page thirty two which is the next section where in the can actually goes claim by claim in talking about the every instance and there's good reason because some of the claims that in the wrote and that were approved had instances and others had all instances so that when you read the prosecution history in its whole it becomes clear is yes it did say every instances in its general description of the invention but when it got down to the nitty gritty of describing the claims the clear focus was between manual generation and folio views and automatic generation in the kind invention which applies to all all of the claims and that certainly falls well short of clear unmistakable and deliberate disavowal of claims go as you well know this court's precedents omega engineering and others when you're talking about prosecution history of stop or claim disavow it has to be clear that the inventor is giving up that claim scope if you read this prosecution history against for your viewers i just don't think you could get there and so that would be my response about the prosecution history you know when they were added your honor i don't know the precise point in that in the prosecution history that they were added i would say just to be fair to the other side it's not independent claim those are independent claims claims fourteen and fifteen what i would say about that now the other side of course makes a point that claim differentiation a stronger when you're talking about independent independent dependent claims clearly it is stronger but that doesn't mean claim differentiation principles go to apply across independent claims and this court has a number of cases i would focus on the arlington industries case which i think is the most back truly analogous to the southern plains we have here and it's a case discussed on page five of our reply brief and what you had there was a claim that involved there was plain language that said metal adapter that was one independent claim and the other independent claim said split that all that out there and what the what the argument there was well all of the claims of the defendant in that case argue well look we don't really claims like that there's when you have a modified claim language and then that unmodified plain language you presume that the inventor is meant to add that modifier for a reason and it w problem this is not well your honor i would agree with you that that's true but i don't think that you can say that this limitation is unsupported in this as a patient to be sure in most instances when you're doing a database you would expect it to return sort of all links and that's that's kind of the general understanding but there are certainly situations and it's not hard to imagine that you would have situations where you want to system to return something less than all names and although it's in a slightly that i don't want to return every instance of this term if it appears you know in a separate paragraph from another term i don't want to see it the same sort of functionality is described in the specification with research with respect to searching there's no reason why the hyperlinking when you're setting up hyperlinks should function in any different way so i think there is support in the specification for the idea that you could if fact return something less than all instances and we know that that's not a crazy idea that's not just a hypothetical because the accused of bytes in this very case is a system where it doesn't rip the doesn't return as the party stipulated in the joints relation it doesn't actually return every instance of the fact the invented there's no reason that the inventors would have won it given up the possibility that you could have certain databases especially in the internet age when there is sort of a stream of information and sometimes about jack objective is not capturing every instance but actually filtering extraneous instances that you would have a database system that would return you or that all instance if you have a system set up like that and if you had a system that returned ninety nine percent ninety nine percent of instances but not one hundred percent instances there's no reason to assume the inventors would have wanted to give up their claim coverage over that over that other device so i think there's enough in the specification when you looked when you start with the principles of claim differentiation and you start with the plain language and then you claims the talked about of each instance when they were added right that was they weren't original claims right right there was i don't know the exact order of which of when they were added with respect to the other claims what is clear from the prosecution history however was that the examiner never raise an objection based upon the absence or the introduction of the all instances versus the instances limitation that simply was never a ground for coming back to the inventor and saying no we need to break a scripture problem or something like that right so so that much that much i think is is clear and undisputed front from the prosecution and another question for you which is if we were to agree with that just right and one construction but not another i would be the result of that so if you were to agree on this claim construction on the instances vs all instances and you disagreed with so on the other it would still require vacate or and it would it would it would just be an affirmative because this instance is vs all instance appearance and all limitations so if we win on this claim instances vs all instances that requires a date at her and the man to to the district the joint appendix it is abundantly clear that the two most important patents the delaware and the hobbs patent were part of the extensive discussion back and forth between the patent examiner and in the con and so when you look at those patent what you'll see is they make continuous discussion of hyperlinks link terms and pointers and target the very same terminology that the inventors used in the in the contact they use them with respect to equally with respect to text and graphics so pretty using if we keep in mind that the inventor who used the very perilous of the cited patents that are part of the prosecution history history i think the default understanding should be that alias which presents as a hyperlink whether it's directly a hyperlink itself as we would submit or whether you accept facebook's assertion that it's it's it becomes a hyperlink once the custom linking functionality is added either way it presents in the invention as a hyperlink and under the relevant prior are hyperlink was always understood to be text and graphics same thing with link storing search results from various sources including the internet with internet format files objects or documents the locally stored results can be automatically indexed for fast searching and hyperlink by the user to make subsequent finding of the previously located information quick and simple so it's talking about files objects and documents not just text and i think a more explicit description there would be in column at the bottom of column thirty two carrying over to column thirty three if hypertext links and layout to the database name in the database name file and then if you skip down the line ten a few lines it says the file can be saved as a normal text file and h t m l file with without  l file with images linked to their internet source or and h t m file with all images retrieved and saved on the local computer's hard drive pressing an exit browser button causes the software the system to create files saved so i think that language and specification supports the general understanding in the prior art and specifically in the patents cited in this very patent that hyperlinking technology and this sort of the term database generation of a searchable index of the day that contained in the database including the custom link in terms of making relationships and that therefore since an index of the data would necessarily or at least logically include each iteration of the relevant term indexing function supports the conclusion of the district court that the system must be capable of identifying and displaying each link term each instance of the term as a link and that's just inconsistent with an ordinary understanding of the claims council relies on the word instances as judge read as a question suggested the term instances was not actually construed in the country not ask the court that way because otherwise it would be pointless but when you needed it in the paragraph you're looking at it might not know how to respond to the position that that part of the specification is talking about is simply refer to by name and what's happening here is that the district read something from the furnace body many of the claims why is it that there is a disclaimer or something else here are some something that requires that you read into the word linking that there has to be threshold and i think in the cause sometimes misconstrues the construction by suggesting that it always or that the construction of the study claims always requires that all of the links terms actually be displayed as a way that's not what the construction says it it's only that the system allows the user allows each link term to be displayed as a link so it provides the capability not the actuality which is one of the distinctions between the asserted claims and close fourteen and fifteen which they argue for claim differentiation purposes those claims automatically generate the all of the way so they require all of the links to be automatically generated that the other claims in the other require the capability which of course is a distinction between capability and actuality that of self is efficient if the claim differentiation argument but try to back to the specification even within the specification there are two i think principal responses to your question the first one is the point i already made about calling to terms the normal rule is when when a term has a customer in ordinary meaning a pointer you can't then you don't you don't get to hit a bottom and then limit the meaning the ordinary and there are the meaning of the ordinary customary meaning but here that rule doesn't apply because see what they meant because that's what a person of ordinary skill would do that can't just insult fest very meaning because it doesn't have one so we have to look at the spec and in those circumstances when every usage in the spec shows what the term means and it's consistently and a big us they used to mean as in this case each instance is capable of being displayed as a link the spec controls and that's even before we get to the prosecution history of courts of course which provides a completely independent and sufficient and compelling ground selected link terms with any of the plurality of file if the invention must be capable of associating any term it must therefore provide the capability to associate each link term because otherwise there are any doesn't include each obviously must include each then again the construction does not say for the asserted planes that they must always do it and only that they have to provide the capability and this confirms anything can be linked and similarly column six lines twenty three to twenty six any selected link terms defined by the link module also indicated in a similar manner that is being graphically indicated in some fashion color style highlighting and the display utility they say that the link term can be displayed in the getting to be displayed as a link quote when the link term is encountered in a file called eleven lines twenty nine to thirty two quote when the fed supplied word is encounter from twenty five lines three or four quote whenever a user encounters something poured on thirty lines thirty four thirty nine quote whenever the term appears on thirty two lines twenty four to twenty nine quote all such words should link words with the file by clicking on the link word in any file you can then see the five so again over and over and over again consistently the description of the invention the specification which is controlling here because this is what these a something that generally compares the prior art to specification and then what we're missing is something that more directly says it's these various differences that we've pointed out on the prior page to rely on the path of the africans description of his or her invention and the can't get broader scope than the panda has said what the invention is and here the applicant in the claim in the prosecution history at issue repeatedly and consistently was history they also say eleven eighty two applicants invention provides the linking control panel illustrated in figure eleven and pages seventy to seventy two applicants specification and and figure eleven i already mentioned all sorry whenever a user encounters a link so again in the prosecution history they specifically referred and relied on the very language that we acquit out held the instruction adopted by the district court in addition to reiterating in the prosecution has to be the same point explicitly so it all ties together is very clear and unambiguous i don't see how any person of ordinary skill reviewing the prosecution history and the specification in light of the claims and destroying them in light of the full information provided in the intrinsic record possibly could be confused about the scope of this invention and it makes perfect sense again that why would you not why would you not want to have the capability when the purpose of the system i to claim differentiation first of all in the cause and seems that most what we're talking about here is a weak form not the stock form because if this is close fourteen and fifteen are independent claims but  see this but it's true not even a weak form of claim differentiation applies here because the presumption that forms the basis and defines the concept of claim differentiation is the presumption that claims are intended to have word term is given its ordinary meaning in this patent as a text or expression indeed it claims require that because claims eight nine and eleven equate the word term with the phrase quote words and places close quote they say part of what's required in each of those claims is you locate words and phrases and then you highlight those located in terms so the patent claims and cells make clear that terms are words and phrases text and the file so does the term or alias term on the one hand of the file on the other hand and there's the linking relationship between them so those are three different things obviously associated but the state and indeed in the pattern you look at figure eleven and  and then finally the searching and indexing function description in the patent likewise confirms that the that images are not to be as equally to do with aliases or with one terms because  twenty two one hundred sixty three to sixty five and it focuses on quote visible characters that's column twenty three lines forty six to forty eight and then they give a reason to give a reason why they search the index and process discards images because two and a half years later in two thousand and one they cite something that's not in the record google announced the ability to search images well this pattern was filed in the beginning of ninety ninety nine there's no enablement no description i haven't i have not examined it but i just in the course of this morning wallach what when you asked the question i looked through the information that we have available and so this is what i go again i don't know more than what i'm saying so please don't take me for saying whether i am page eleven seventy eight of the drug offender acts it appears that claim a seventy eight through one hundred fifteen which were therefore include one ten and one eleven were added as part of the very submission that we rely on as the prosecution history that's a level seventy eight is where they say we had seventy eight or one fifteen and then they go on later in that very same document to say our invention applicants invention entails the ability to display every instance of the letter as a way an ambiguous lead disclaiming even if there even if the specification were had not been so clear there were quite a big asli disclaiming any attempt to claim an invention that doesn't convey the capability to display each in but we do have prior art in this case that's in fact cited on the face of the patent that's in fact discussed back and forth in the prosecution history as shown in the office examination on page eight and thirty four of the link term refer to both graphics and links so we're talking about point terms it's not enough you should look at the actual point terminology that they're using you don't have to limit yourself to dictionary definitions which facebook unraveling the claim it in the claims no your honor but that's because it uses terms that were meant to encompass but it doesn't also just say tax it was meant to encompass both text and graphics and so i think that's probably the best reading if you look at the fact that the inventors were using terminology well known in the art to encompass both tacks and graphics they should also have to repeat it in the claims itself so that would be your response on the coin in terms argument the second point i would mention briefly is the fact that players fourteen or fifteen are independent claims are clearly independent claims and all independent claims have different scopes than other independent claims otherwise they wouldn't be independent claims but the key point is under facebook's reading the word all would be completely superfluous they but if you read claims fourteen and fifteen and you take out the word all in their view it would read exactly the same it would not change the interpretation of how those planes operate that's the definition of rendering the words of her actually link in the chain stats i don't think that that that's not my understanding i think they rely on the word automatic generation for that point and whether it's all instances or instances when it changes the construction of place fourteen fifteen the point i would make is coming back to the prosecution history which of course will submit the for document and i think it's just best for the court to read that will document and come to a judgment but i would just say a couple things about the prosecution history again if you look on eleven seventy eight when you're talking about prosecution history of stop are you talking about clear unmistakable and deliberate disavows of claim scope that's the standard here it cuts exactly the opposite way when it says applicants be mindful saying it's putting the copy at so when you're talking about clear unmistakable disavows you first have to read it against that copy out in the section then even if even if we do look at that to women every section which is talking about the invention which