beginning what do we need to decide and what if we decide again resolves the entire case your honor so the only issue that addresses would address the entire case is the claim construction of the authorized or unlicensed claim term that addresses all three of the claims that are currently asserted the two summary judgment issues one of them has two of the claims the other one has two of the claims so both of those were resolved against us that would resolve the case as i said that is the only issue that is potentially completely dispositive of the case now the claim term which appears in all three claims for sites unauthorized or unlicensed as a disjunctive term in the a or itself these terms well your honor st of all there are places where the term authorized is used in the same sentence or in the vicinity of the word license that's true but that makes grammatical sense because as we pointed out in specification of the patents and not even the district court found that there was an express definition the district court relied on the quote interchangeable use of the terms on authorized and on license in the specification now as an initial matter we disagree that there is interchangeable use of the two terms and when i was getting ready for the argument today i went through the specification and i saw that the term license appears twenty five times or variants of license the terms authorized or variants appear for neither of those things happened here and the district court didn't even find that either of those things happen and never found that we disavowed the full scope of unauthorized and they never found that we defined authorized unlicensed to mean the same thing instead the district court relied on the so called interchangeable use now i disagree that there is interchangeable use but even if there was the only case that the district court relied on to say that that matters was the bar on case but a number on case the two  interchangeable terms did not appear in the same disjunctive claim limitation they appeared completely separate parts of the claim so i think it is that it is a massive stretch to say that you can go from quote unquote interchangeable use to suddenly saying that th of a disjunctive claim term mean the same thing and then argue that would that would take away from the public notice function of patents because now the public would need to dive into the specification and tried to see ok it means what it says there are alternatives and here one of the alternatives is an authorized and we do believe the special this is what is just or has to be true to and not just simply notify that you have should and should well i think that's been the the holding of this court in many many cases around or including the stewart case where this court said it has consistently held the board's enough alternatives and again i think that goes back to and i don't believe there's ever going to case that this court certainly wasn't cited by a pelleas and we didn't find any where or in a patent claim but found that just me since they did find the supreme court case on statutory construction but that was entirely different that was so your honour's like to move on now to the next church i'd like to move on the next claim construction issue which is the construction of content dependent name now this court already addressed specifically the same exact language in the all at least some of and at least in part language with respect to content dependent name does not require using all of and only the data in the data item and the district court based its contrary finding a finding a prosecution history disclaimer but the disclaimer there was allegedly happened in apparent application now this court's law is clear from the mega engineering that the disclaimer from apparently only applies if the claim language is identical and here the kind of language could not have been more different so we submit that construction of all of it only should also be reversed and should be construed in accordance with the plain meaning of the claim moving on to the summary judgment issues st i will take the permitting then the question of infringement boils down to the legal question of the undisputed operation read on the claims now the undisputed operation is this the accused servers receive a conditional get request from a cast that wants to serv current file on the server if they match that means the file hasn't changed the server sends a field for not modified message if they don't match and that means that they have changed so the server sends a two hundred ok message now the key point is that under the age  p specification it is mandatory that if the server sends the two hundred ok meaning that the file has changed the cache must serve the new version of the file and may not serve the old version and that appendix pa problems of preemption yes what personal web is reading these claims on in this case and it's kind of indicative of where we had a user but those are not accused in this case what is accused is the generic use of cash is an e t a now cash is on a fish and sea mechanism right it's a way to reduce the number of requests that have to go to the server and then number the amount of data that has to be sent back and forth across the internet but that's all they are they're just a mechanism to allow a browser to more efficiently give  display the content to user and eat tags are just a mechanism to make that caching more i've not used to control access to content or determine whether content is  it's kind of a simple point which is when you do want to go in a browser does one of these conditional get requests they're basically asking the server to give me this object at this u r l if it's different than the one you already gave me and when the user has a browser or when the web server make that determination it's not really nagging the permission for the browser to have access what it has already been provided by the server the browser and the user can do whatever they want with that contact they had that had been previously provided and in fact the h t t p protocol requires that browsers make that stored content dates when the user wants to look at their browse history so the user has the object i think is not permitting the user to access the object and in fact the ability for the user to continue to access those details objects is required by the h t t p protocol so as judge freeman correctly found these claims require an affirmative allowing permitting or not allowing construction question and what he characterizes as the common practice of reviewing two alternatives yes you is what judge rayner proposed and what the supreme court did in that hawaiian airlines case which is saying that these are alternative substitutes they are synonyms that reinforce each other and that is confirmed by the specification because the only use of an authorized throughout this part is the context of the license table and the lack of a license or a valid license of the content and as i think the judge laurie indicated and it's confirmed throughout the specification the terms are used mostly throughout the license is identify the identity of the user authorized to have access to  file or designating part of a disk is read only have nothing to do with authorizing and authorizing access to content and none of those descriptions used the word authorized or on authorized at did but even if you are going to adopt a person was proposed construction there is still no determination the content is not permitted or access to content is not permitted  and it's a coin canada for forty patents and if you read it claim it very closely tracks the licensing audit procedure described in the past and if you call in the pattern with the true names every computer based on the name and then you determine whether that file is authorized or unlicensed right so you're checking this auditing the computer nothing like this is done on the web using received but that comparison doesn't tell you anything about what other files are on the server to server could have the old version of the file as well it could have a different version of a file with a different u r l it tells you nothing about what's on the server and in fact it's funny below person was expert said that when the q e tag do not match that means there is a copy of the determine what files are on the server or just used to determine files that have already been located whether they're the same or not and even after that there is no determination whether or not the copy of the file whether it's the server or not is an authorised license that is just this is nothing like that done in the h t t p protocol because there's nothing to do with the german whether content is authorized or permitted or not addition to the back button and history mechanism because even these very if none match requests that are being accused in this case the h t t p protocol specifies  browser can actually include multiple text for all the prior versions that it has currently stored and in that case the web server compares its current tag against each of those and basically only if it differs from any of the old versions that the browser already have that just confirms that nothing is not permitting the browser or the user to access the old versions of the content the serve raised with him on how this all of the the entire case he led with claim construction you lead in your briefs with the summary judgment of not infringement but i assume you agree with him that the case could be resolved hypothetically one claim construction question or alternatively on to the summary judgment on infringement case claims absolutely right  and judgement and the other whatever eighty cases the customer cases and personal never appealed those judgments so i believe at this point the only cases that are still in play is the amazon and the twitch case thank you and just one last point on the what matters and what doesn't matter this content dependent name construction doesn't matter at all it is not an issue in the summary judgment order judge freeman did not grant summary judgment on any claim element relating to that construction so i'm not actually sure question the construction of content pendent name matters because it could affect personal web civility to prove infringement certain circumstances going forward and also of course this is our one and only chance to appeal the adverse construction now i also want to address the argument which server and wait for return message if the return message says the file is already locked prohibit the opening and and this is on the context of the open file mechanism so this is specifically saying look at this oranges or citrus and then that would render our inches superfluous and i don't disagree with that and the claims as written do have a degree of redundancy in them in that yes unlicensed is a subset of unauthorized but when you have a claim like that that were say the genus or species the rule is patent he is entitled to the full claim scope absent disavowal so in that case you have to go with the broader genus alternative not the  cases submitted