want to address today are addressed to an issue that crosses all three matters how are patents describe wireless communications in which a signal is transmitted into portions the first portion is transmitted at a pre determined bandwidth and contains an indication of operating band with a further portion of the signal for the porch is then transmitted at the indicated operating bandwidth i guess most of you shoes on appeal will rise and fall with the construction spec was you have a ship rate you send a trip rate over and then from that ship grade you can calculate and determine what would be an ideal frequency range of britain then with that isn't the same thing as says the specification of the howard patents tells us though that that shift rate also serves as an indication of a particular event with because as for example howard seven nine get howard what i'm trying to understand frequency y so that the header itself does not contain the frequencies but the header itself as required by the claim requires an indication of what you're describing of the frequency range and that's done in the howard patents for example  is higher than the low chip rate and then i'm a skip forward to the relevant language here once that's receives configured into a second state in which the analog section three sixty and the digital low pass filter are set to band w well it's only that it takes place based on the indication it's not that there is some information of any kind that may have some relation to band with and then somehow that is that is figured out in some way maybe there's some additional processing that occurs and then you arrive at the band with the receiver sets itself that it's that that serves as effectively indication is effectively a pointer to a specific band with but the receiver will use that's what that's what it's meant by it will be set to the bands appropriate for the higher chip rate it's not just not describing anything else it's required it knows which is different from the prior art prior art doesn't do that the prior art in some instances has things that are associated with bandwidth but it doesn't describe actually problem with the construction of the board arrived at and it was it was a construction that the parties never argued and so this of this wasn't fully sorted out in the board's decisions whether what was being sent by the prior actually indicated band with  and so let me just so let me go back in school so it's the indication that it's in the claims the board's construction did not actually require that it include an indication of band with the board's construction merely quite say that the runner in so let me let me give a hypothetical that the hypothetical system that made it will bring home what's wrong with the courts with the board's current structure so the board's claim construction is the first signal portion can seen sufficient information so that when it's received the receiver is able to configure itself to receive the data portion of the signal for further course signal corps transport channel at approximately the same range frequency range or band with it which has been transmitted by the transmitter it doesn't say at approx me the same frequency range for band with indicated by the indication it's just saying you receive what you got it so hypothetically we have a system that has a fixed and if we have it with a fixed band within a system so picture this the first portion of the signal  same band with and get two different data rates but it does not impact and with and so my point here is the first portion of the signal indicates something that is necessary that is used to allow the received circuitry to receive the information and it just so happens that received information is received going back to the claim to the board's construction it's received at approximately the same frequency range or band with it at which it's been transmitted by a transmitter will of course it is because it could only be sent i think the question with what is the difference between our proposed construction in the boards construction yes and so yes i am pointing out that the board's construction does not require any particularities in fact it does not even require that the indication include water comes in and goes out approximately the same frequency really close approximately the same frequency because otherwise it wouldn't be received it would be used again not necessarily director right in under that construction which we believe to be the proper construction as a starting point erickson never put on a case with respect to that construction so if that's the proper construction we believe it you well that's what that's my point it's it's it only required for profit of the same ranger ben where you want it to be the identification of the actual specific band with it  not require reconfiguration in any way that has anything to do with it and with it simply says it says sure does if that is the receiver they want to configure just to receive the data to receive the data portion signaling going back to my example that would be the case when you're indicating something that has nothing to do with and with for example q p s k vs p s k it's and then it's that where the construction really breaks down is the second portion it says at approaching the same frequency range of band with at which it has been transmitted by the transmitter that is not at the same frequency range or band with that has been indicated by the indication and we know that the board that's what they meant because they emphasized in the footnote to the construction they say the key consideration is that the receiver is able to receive the data that the transmitter transmits that's the key can skip long as it receives it we don't care what the indication actually told us as long as it's received therefore there must have dense enough in there to tell us th refers to the rate at which you are sending a single bit of data can be multiple bits of data per carrier but that's a good enough you have the symbol rate and the number of carriers should be able to figure out the proportional but that doesn't be simply being proportional doesn't tell you what that specific curious facing a certainly is for that for example it can be a multiple it can be off by percentages and still be adequate to receive the signal  even proposing a construction they're explaining what for example trump tower does once you presume the trump tower has received the indication of operating van with so it's pretty plain that the that the the petition not argue for that claim section so when the claim construction comes out for the very first time it's not a construction that the parties ever argued in the case below it comes out in the final rescission for the first time without any notice that's coming had an owner  construction by you google comes back and said no that's not the right construction it's really the the right construction and understanding as you can see by our proposed prior art action is that look at that whether the header has sufficient information so you can figure out how to reconfigure the receiver to receive the data portion so it's at a minimum that's know it right then and there and then you talked about it in oral argument they provided a proposed construction we could have reacted for example with asking for a survey to address that proposed construction not had been previously provided but let me go to the language this is google says so google first of all says no construction is necessary  the indication so even google's imbrie seeing a construction that would require the further signal portion have something to do with what is provided by the indication the board's construction again does not even increase that so google's can to the extent that you want to treat it as a construction that's not the construction the board used to take away ids patent rights which we believe it's due process thank you very much question happy talk about but it doesn't really matter beyond those two points and the second of those points disclosure specific upper and lower frequency bounds i've never argued that before the war and in the free from this court clerk this well we benefit is whether there needs to be a disclosure of carrier space and on that point we know the basic point there is simply that the indication of an operative and with does not have to take any particular pacific form or be of any specific type much less disclose anything else as detailed as carrier space we know that for a couple reasons first the plain ordinary language of indication indication is obviously that and take other information already known to the receiver in order to then come up with the appropriate and in my correct here that the that the that the high chip grade the follow through is its what indicates what the and that's important then because under any construction really beyond the higher level instruction wise both both mcfarlane's and cover this and for mcfarlane the bandwidth except for carrier spacing the receiver already knows the carriers face what that means is that the signal that macfarlane is sending out isn't sufficient to use it and if i specifically the appropriate bound with based on the other information knows which is and then it in the relevant part of the specification striving figure fifteen be it describes how to go about determining the carrier spacing so what this means is is that you have  but what he did adopt is a claim construction that in the relevant part at least is comparable to what google and ericsson have been arguing all along google's proposed plan in ordinary reading for example  portion based on information provided by the indication so the indications provides information that allows the receiver to determine the frequency range of the now that's phrased in terms of the transmitter because the indication and that the receiver works period and that there's no nexus between the two but that's not a reasonable construction of the board's construct of the boards of the boards to traction because the point of the board's construction is that the indication or even as of now there's been no demonstration of prejudice i was never done a fide if it had known the precise wording of the ultimate claim struction what arguments rather dissimilar presented differently and the reason is that when it now there is no material substantive difference  there is no discussion the out of the one vs two filters issue i don't know if the court would like to briefly hear on that but the simple point is that the claim language requires a filter for one function and a filter for another function but consistent  expressly to the point where is the specification does spot say that view of what's necessary is either providing different filters or reconfiguring the filter the single filter and then in that point  n system and then in response to the arguments raise we explain that while that combination of the teachings is appropriate in practice making a physical combination of the u s g s system is already implemented so you're saying you didn't abandon the be systems would know about the spread spectrum technology of you and us would also know about d m a and so they find that the person of skill in the art already has this basic knowledge about applying those and then apply add on to that that it's easy to modify the indication van with this really used three times in the claims i claim fourteen of the three five three pattern is probably the best because it has both a transmitter component as well as the receiver logic forward covering the indication and then further logic for that's incorrect it was actually cited for a claim fourteen for the logic for recovering and that's that x four zero five zero on two four zero five three but it's in those and the application of those piers that as you walk through and say there's the indication in the claim requires that that indication be used as applied to the references it's clear that each of the references recovers that indication from the head and then reconfigures its filters or system to receive the remainder of the portion at the indicated operating band with it so it can recover the data at the higher data rate is there anything further no i think that's not ok very good thank you very much i tower which is count thirty three was never addressed with respect to indication of operating van with it was thrown in to discuss what would happen in a dependent claim when filters are reconfigured it's a dependent claim issue it was never cited this is this is an issue where the board is not free to van gogh take the priority record and create their own case of on patentability and that's what happened with that section of trump tower it was never cited for the purpose of that section of the independent brief if you want to pinpoint it took yes when we did raise this is it is a separate distinct issue on due process this was more rather than a claim construction of that this was an application of a defense section of prayer had not been previously cited for the proposition that the board you would use the if it were you referring back to the same filter and it is true that the preferred inviting it describes to two different patterns or two different guides you can use two different filters or you can use a single filter but the patentee has a choice of claiming something narrower of course than its preferred and bo  and that's what was done here so as a filter a filter and then it uses the term our it is not the unusual situation where you need to come up with the right word when you say one more that's not the claim set if that's what the patentee had intended it would have said one or more system in the macfarlane system you can to negotiate ahead of time that i'm going to use this much bandwidth then all i need to have you know so mind then what is going to be this going for that in the first signal portion i receive an indication of the number of carriers then what i do is i fill that space with those number of carriers the carrier spacing doesn't have to be known ahead of time it's not in we know it's not in the unification nobody's argue that it's an indication it's not there but it can be filled after the fact and that's consistent with mcfarlane's purpose of taking into consideration things like multipath and other types of interference where you have tradeoffs between the number of carriers and the simple rate given how much bandwidth is available to you and it makes sense that you would negotiate that that available bandwidth ahead of time because it's the receiver that knows how much bandwidth is available not the transmitter which thank you very much