the which unequivocally stated that the plain meaning of the term must be from the perspective of some skill the art in light of intrinsic record i just tell you what i've been concentrating on here it seems to me that to overturn judge young's claim construction you need to present a defensible alternative construction that would in fact result in a possibility of infringement and in your opening brief you've presented two alternatives as one to cut through switching when conditions permit here here's what i want to ask you first of all you don't repeat that in the reply brief and what i'm concerned about is that  seen to preserve any possibility of infringement in particular the un controverted allegation that cisco allows the user of the system to program it to say don't do cut through switching in certain circumstances where it would be possible but we just don't want to do and so i don't understand how that alternative possible implied wherever possible condition produces a basis for saying there's condition that that that means no condition at all well that's not a condition your honor what it is is that the each message is describing the circuitry the functionality of a message going from the input circuit to the output circuit it's a way of describing for cycling the functionality of cut through circuit one skilled in the art looking at the patent would understand that there's different groups of messages that we're talking about here the first group of message ones that are undergoing cut through switching or those that are discussed in claim one the ones called the art of go no further than playing two to see that there's another group of messages out there a group of messages that different functionality or honor that we have your system claim with functionality there's a circuit as a circuit that performs a cut through switching that circuit is described in terms of messages that are being cut through switched so there is a very front of each message that's being cut through switched the very next plane talks about a different type of message a message that's stored for it's a different circuit it's an add on to the system claim one so we've got claim one we could talk about the circuitry that does with could be built with cut through to talk about each message in that cut through circuit for the to each message subject to the cut through circuit likewise one school new york would look through the applications to the patent specification and understand the preferred environment clearly contemplated different types of messages those that are being cut through switch and those that are stored forward indeed a substantial amount of the patent is dedicated to a situation in which the messages that are received are not cut through switch but are rather stored  married and it really was and i can i can summarize very quickly what that a minute was all about the claims as originally it filed that they had and they had a claim imitation where we talked precise language where each message is is transferred from an input circuit to an output circuit in connection with cut through so there was no argument that we're somehow disclaiming all messages or  i also like to emphasize too that we're not trying to claim change mclane turn here we're not looking for d h to be someone that's not our position we think the term each message is fine it has persisted to the claim that during the mormon hearing and should be understood that that the interpretation of each message changed in the summary judgment that's why we're having to respond to change in this appeal we were very content with motion each message becomes all messages without exception we submit that there's there's no basis for that in the specification how many exceptions are allowed in your view the definition of the exception if each in claim one doesn't mean and i don't understand the difference between each and each and every so if it doesn't mean you that you think gives you an opening to cover systems that do not in fact to cut through routing of each message that comes into the router well the language of each message is i ational with just the cut through routing so i would submit that each each means every one of a group or aggregate would separate define the group that group would be in this situation those messages undergoing cut through switch the the purpose of each message was to provide clarity on what was happening for the message it wasn't intended to to limit the visit the type of messages that are being subject to that circuitry each message  describe what's happening to that message can i can i didn't return for a minute to where i started when i noted that in your blue brief you present two alternative constructions and then in your reply brief you don't talk about the second on the where permit where conditions permit i think in your answer you again did not events that where conditions permit halted construction and i assume that that's no longer  being advanced as as a alternative construction your honor i would say they are very similar to the first one under conditions that was invented initially in the context of an infringement allison are different in position  and we think of it as a as a as a related construction if you want to take that as being of the the infringement position and then apply the refrain that in terms of the construction it's essentially every message is defined in every message board sorry each message is every one of the messages that's being cut through switched so we think they're related one came from the indian ocean for interpretation came from of our brief our argument in connection with the infringement position apart from infringement position and now that the the definition of each message really constructive each musters change that it's done before a long message comes into the input circle circuit so that you could actually start switching it before the message full message had gotten into the input circle circuit sorry and yet buffer so that claim to could in fact involve buffering and sending the message be fr input to the output before the full message has arrived at the input or those two things simply inconsistent i don't i don't believe they're inconsistent i don't i don't believe that that fact is relevant to this too to the to the products that we're talking about right now to message and that message is being offered is unambiguous and should be construed according to its ordinary meaning of each meeting every message received is there a way to reconcile i think if there's only one paragraph in your read grief that tries to really reconcile response and actually until i heard judge toronto's possible alternative i i don't know whether you could reconcile those two claims so that what you propose seems to us that it might be one way to do it so we're not relying on that ability to reconcile claim one and claim but let me just say that the notion here that that there is some different group of messages that applies a claim to is clearly wrong because claim one refers to forty each message received by said input circuit so that everything that applies in claim one is for each message received by the input circuit it would do with that message it would then possibly serve if the claim to there is no separate group of plan i just asked and i haven't focused on this enough in advance to have to have a clear thought is it possible that the input circuits scree for two in claim to don't have to the same input circuits that are referred to in claim one so the the inputs if i look at the language  lines and then then little stories a switch connected to said input circuits for each message received by said input circuit right so so so far what you have is a system that has to have a bunch of in input circuits and the following thing has to happen now turn to claim to yes maybe the input circuits referred to and claim to tell me why if not are a different bunch of input circuits group it's probably is that now and not actually what buffering is doing that buffering is actually supposed to take care of roughly speaking the impossibilities situation on the very same inputs or i think those i think that this said input circuits are the inputs circuits connected to the if of the message router not the all of them that's not some other subset so that those goes counter to my interest because i'd like to have can train to be consistent with going one but i think that it was meant to refer to the same thing and what happened is when they amended the claim when they chose the wording that they chose to specifically movie for each message received by said input circuits up to applied to each of decoding establishing and maintaining they may have created a problem for themselves but i admit judge try but i have not considered the a hard turn to that you propose today that possibility of it might actually be able to occur within the context of a message that is switched according to the claimed one language but it is in under this court's precedent it doesn't really matter because when the language is unambiguous and there's been no suggestion of any ambiguity here where there were each even though mr driscoll admits that the word each has an ordinary meaning of each and every one of a group and they claim defines the group specifically as being each message received by said input circuits and the only way to end it is through these input circuits so therefore all the messages every messages has to go through the three steps of the coding stablish in maintaining and under the undisputed facts we don't infringe do you agree and i don't think you're redbri record or maybe even indirectly denied this that it isn't a real world possibility of a switch in which every single message coming into an input circuit gets cut through week because because they're going to be busy it's going to they're going to be in the outputs or we don't agree with that first of all there is no expert testimony they don't tell you though you say you don't say they donated anything but i thought you kind of stopped short of saying oh yes this is perfectly possible well it's i hate to say technically what's possible or what's not but i can imagine scenarios where for example you're able to filter out corrupted packets before they arrive at the input circuits or for example where you might have a switch that has two input circuits but fifteen redundant output circuits so that there's never any contention you can always send a message out to a destination so i'm not a scientist there are ways i believe that you could design the switch that would satisfy the sign language but we're not it and in fact one of our property issues is that our system the design specifically that for any package in any circumstance under any operational conditions that's less than eighty bytes it will be completely stored before it is moved on so it can't we cannot infringe we do not infringe and there's really no dispute about the facts here about whether or not  we don't infringe under those facts the impassibility they didn't try to prove it bloweth testimony and i don't think it's the case and i don't think you can just assume that this case i was going to go line by line through the actual amendments they made in the file history but i won't do it because we should have a chart at page thirty five of our brief which really shows that you know they've they've made a very conscious choice to move the for each message language undisputed under judge young's claim construction and this wasn't a mistake because at the same time they made this and they themselves submitted the kirmani reference to the patent office and the c'mon you reference it's in the record if you look at it it is actually called country footing that's where companies switching the name came from and it talked about switching some of the messages and busted buffering others when there's contention so by making this language read each there is a rationale and it was found by judge mcmahon and judge young didn't rely on it for this if a clique but there is a rationale that would explain their decision to make each message subject to the country's switching requirements and that would distinguish the criminal reference so it's not irrational there is a deliberate choice they made to change this language they're now trying to run away from it that's why we're here they're trying to run away from what they did and i submit that the public notice function here is very important putting aside collateral estoppel ten years ago this judge mcmahon looking at this language said it means each means each judge young is on the same here the public looking at it would apply the ordinary meaning and that's what we're asking this court to do and the court's own precedents have said over and over we do not rewrite the claims even if it excludes a preferred dividing line even if it some point the language is so clear for ses there is no linguist take alternative and in particular no single linguistic alternatives that you can find a way around the strong arguments on the other side that not every single message needs to do this it seems quite counter to what the patent as a whole is about but this may be a case in which the language and i think judge young affectively found this or concluded this that the language is you can't get around it i think you're one of those you have to question to the other side which really answer that question if they did they were they able to come up with decisions that permit cutting switching which is again it's the same way of saying the same thing it's also circular music and it's rewriting the claims if that is what they had wanted to say they could have said it and keep in mind also that the claim itself refers uses the word each when they want to use each and uses some of when they want to use some of the they knew that there was a difference in the language that they were adopting here and there is no basis i don't submit know to clear disclaimer no special definition of each that you would normally look for to apply something other than the plain meaning and they even agree on our meaning of the word each and every one of a group and the group is defined by everything that's arriving at the switch  think submit is very important in this case part time a prince when shouldn't apply either because that's really just reading out the meaning of the word each saying son sometimes it we do it sometimes and then we infringe as i pointed out that least you can't you should read out the language of pain but also in addition there's no dispute that with respect to messages that are eighty bytes or less they are always under all circumstances the switching before the rest of the message arrives i don't know that that's the case at the time thing but it's a design factor it may have to do with in the accused in the queue device right so we actually default is normally one hundred twenty through and so those are never cut through switch under any circumstances so there is no operating conditions under which each message arriving at said input circuits are received by settings so what circuits is cut through switch there just is no such mode and i also pointed that the claim instructions that you're addressing on appeal they were not raised to judge young below they were and they were never suggested that him and the defense bill talked about judge young's initial comments during the marking hearing but  good basically he was focused on a certain set of elements that were in front of him at that time and he didn't reach a final decisions the civically on this each issue and there's even a reference in the martin transcript saying i may have to look at this again later and he told me  meant again that that's not final but this decision and summary judgment was where he set up so with respect to the collateral estoppel were really only relying on that if you disagree with the claim construction i'm not going to spend much time on it we are not trying to run away from our playing construction or from our claim language we're not proposing that anything be modified and in fact we agree that each means every one of a group so looking at the coins claim one addresses cut through switching the claimed each message in that in that circuitry that addressing the cut through switching is concerned about it isn't that such that it undergoes clarify something cut through switching does not claim language that that's a shorthand as i understand it that's being used for the longer language in the tautological or circular you're suggesting that this as a switch connected to said input circuits for for each mass is received by the inputs or circuit doing what the rest of the claim  requires for those messages for which we do the rest of it what the rest of the claim requires a help me see why this is not the white background turn that of wouldn't make this  circular it's not circular honor because the the term each is being used the description there is to provide the reader with an understanding of what's going on in the circuitry it's to it's to say that  limitations other than as a vehicle describe to you what's going on remember this is a system playing right this is a piece of hardware so we're doing is we're describing a message to you and what happens to that message in order to describe the hardware to you in order describe different a different group of messages one for cut through switching that circuitry just describing claim one of the other claims just describe different circuitry there could be different messages to you know be used in that context so we have to keep the context of the claim in