processes the necessary qualifications and i just like to say you know for all of us i think this is a bittersweet time of the ear because one of the good things i suppose about the way our law clerk program runs is that we have turnover every year or two and new people come in and our families continue to grow but of course and this case many like me tika go on to bigger and better things and from the teeth of that includes not only her professional chambers and she's distinguished herself as not only a terrifically talented but a well grounded lawyer and leader and she  structure for sensing she reactions to sound sensors without also including motion sensors which were expressly disclosed in the specification that's issue one issue two which also involves the fourth one patent as the previous issue did and sensors for sensing the motions of the animal's lower jaw under this court's decisions in cases like make overs to select a linear in s three d this disclosure is enough this court has been the words of the elected decision quite generous  sensors accelerometers in particular were well known generally and well known particularly in this part since the late one nine hundred ninety s if you like cites for that proposition that's a forty twat faked excuse me let me try that in english a four twenty limited to what's called a bolus regurgitation sensor apologize this is what happened is about but that is is not the point the point is that that shows that a person of ordinary skill would understand at the time of this  microswitch would be one of those sensors and if there's any doubt left after that the claims themselves give the answer dependent claim to which is this which says the at least one sensor is a sound sensor and that being coextensive with independent also a legal error figures eight eleven they have those air flow charts and they show that at some point in the flow charts here there's a calculation of the time of each  and also the number of choose her time interval right right and then claim or not claimed figure six i didn't see a box in that flow chart for measuring the time of each and the number of said chewing actions per unit time interval for determining the chewing rhythm of the animal so what does the time of each changing action mean here in this context the district court and our friends say well it means that there must be like a specific stopwatch time or consulted in understanding what it claims means it's clearly things to this remember that this is you agree that figures eight nine eleven those flow charts they do indeed have a box that provides that in those processes you for your bleeding into a lot you're losing time so i just want to quickly get to a couple other issues actually a couple broader issues one was it's not clear to me that the accused product is measuring the time of the chewing action so that is limitation in the claim and secondly perhaps another fundamental point is that i didn't see anywhere in the record below where your side was arguing  by walking through any of the figures six eight or eleven those algorithms contained there in trying to match them up against whatever algorithm the county manager is using in the accused product and isn't that a fatal defect in your case and went on infringement with the answer to your second question is no now let me go back to explain the answer to your first question which is the time of each to that correspond to the means put function limitations to whatever structures clash algorithms in the q s product in order to make your case for infringement i wrote i was not saying that and i wouldn't say it here and i'm not telling you that that's what the record is here in fact i was going to tell you was th problem here of course just changes that is that we were the mark of cain the same time as the summary judgment decision so we didn't know until we had the ruling against us that the judge was going to rule out claim make please the court in order for this court to overturn the district court finding on the for it one patent for specific findings would have to be overruled the the structure being limited to sound sensor that an algorithm disclosed in the patent was used by the accused device that if used device accumulates and senses the time of each two and that the accused device counts each two per time interval just curious in a lot of materials with and i think it would be sufficient for the public to understand what's going on here it's to simply describe our particular algorithms as statistical functions in the public opinion the specific statistical algorithm that my client discovered is a very valuable trade secret we produced our source code right at the beginning of the case that is usually the crown jewel of the company of the crown jewel of ours and we think that the specific advantage our product has over the rest of the world would be disclosed if our particular algorithms are disclosed but since we made reference to those six letter unpronounce district court's decision none of the district court's findings on the four one are in any way in correct and i can start backwards and judge ten us to question about does the august sense or measure time there never was a dispute as to what measure time or sense time me early in the case in the infringement analysis s c r defined the term as sensing the length of time for each chewing action the figures eight figures eleven which are clearly in body and of of the data processor talk about measuring time and it's not only measuring time it's measuring time within a hundredth of a se there is no dispute that we don't do that we can't do that that is fatal in and of itself to the claim additionally fatal to the claim is even if the figure if figure six counted as an algorithm know what numbers in his hand but i don't know what numbers in his head but the problem in the record for plaintiffs is up until summary judgment they deny that these were means plus function claims so there is no evidence in the record as to what structures one of skill in the art would have gleaned from the the disclosure or what algorithms counted in indeed evidence was people of skill in the art would know all different algorithms that so this the data processor accumulates the total time of rumination that's the ultimate output to the farmer to say the callus been ruminated for x number of minutes during the day but there's nothing in figure six  that shows how long each two is taking the duration to chew and both the time of each two and i don't want to make sure i understand of the specification talk that if it if you conclude that there are a time there are two times that are being measured there is the time of each two so that time between point seven and one point four three seconds then what the ultimate result is so if if there's a yes that is added to what's called the rumination register and that tells you how many minutes during the day the cow is ruminating on it it's important to determine the health of the cow how long during the day to ruminate and so there are two time measures and the set time memory i believe twenty three b is for the ultimate time time two during the day that there's no measurement in six of time of each to it and the fact that there is a measurement of time of each choose between the two numbers shows that it's not an inviting there was some discussion  and i should add as the district court found we don't count each choose that there's no way for our system to say two and a number to add a number so we can't find the and that the all the the figure eight and figure eleven have and figure six implicitly has of how many choose there are per given time period it's just not  a finding of the district court i don't even know if it's challenged on appeal but but that in and of itself would be fatal again the claim requires as the function not as the means for the function but as the function both the time of each to and the count of each to do your program measure calculate the number of shoes or sample return period no it does not what it does is it gets all the motion after doing the calculation of those two almost unpronounceable ratios what those two unpronounceable statistical calculations looks for it has a motion number for each minute and then those are put in yet another algorithm in the server there's no counting of choose at all that that's not the way our system works there was a brief argument about microswitches microswitches are not linked to counting choose but more than a functional description chewing of a castle is the movement of the job and down so something more some life would have to be bred breathed into that description for to fall into the case law cited by s c are as to what i want to ski on the art would would view has disclosed as a structure so you're saying the reference to motion sensor in the specification wasn't good enough not only was it not good enough well one yes i'm saying that absent any more evidence in the record according to this court case w sufficient what it looks for is testimony of one of skill in the art as to what they would see if there was no argument that one of skill in the art would be sensitive any particular job centers being disclosed and in fact that was shied away from because we put in prior art that the jaw sensors were known and would invalidate the patent why would but what if what if it said drastic answers are sensing the motion or  is simply too functional it requires the structure and provide the definiteness required for first i mean structures is that what you're that is what we're saying because had there been any evidence that mobile particularly known motion sensors at the time were disclosed structure were disclosed or known to want to skill in the art to have been disclosed that would be sufficient as the home med instrumentation case said this court has been generous  finding structures disclosed but there has to be some evidence in the record and simply saying sensors for sensing motion would do it is it correct more importantly a number one nine seven two one four nine patent but he said acceleration sensors were neither well known nor was their use in a wide variety of motion sensing application of common knowledge as of january nineteenth two thousand and five of course the for one patents from two thousand was so their own expert did not what this requires to broaden what structure disclosed as he said one of skill in the heart would not know excel wrong in terms of measuring two there's an argument trying to figure six and i'm sorry to be jumping around that that we somehow argued it or conceded the history is in the background of our experts invalidity position and simply as a background not as part of this as in that report he mentioned figure six as a structure that was disclosed by the time of his next report one month later and several months before summary judgment he said i  be my initial disclosure we never made that there's no judicial stoppel there was no argument there was no concession of that other than there was an error in our original expert's report which was corrected time to the extent there is any argument that this court somehow did something unfair by not having a claim construction of the event early schedule or that there will be no separate claim constructed consistent with the procedures in the district or the western district of wisconsin plaintiff chose the western district of wisconsin if the parties tell the court or make a motion for a claim construction here in the court can consider that no such motion was made the district court did nothing wrong the briefly in my last two minutes and attenuate the energy level of an acceleration signal the did the district court got it completely right  must be attenuated there or there never was a claim construction argument made by plaintiffs in the summary judgment proceedings and the definitions were all over the place and no one addressed the particular language itself attenuation as the energy as the indication of eating is stronger and happy just something that when it reaches a certain point and there's an indication that struggle and you have to tell you there's nothing about personality not playing plainly which what the district court read was as it is stronger read that grammar that way it is consistent with the specification which  attenuate more as the head of the animal is further down the significant point and one which doesn't seem to be rebutted but was argued below on appeal was we don't reduce adding values or we don't do anything that arguably attenuation as there is an indication of eating the proportionality while the court put it in the opinion wasn't necessary for the finding the simple fact is our statistical calculations are done all the time whether there's an indication of eating or not an indication of eating while proportionality might give yet one more reason why obvious doesn't infringe it wasn't necessary to find it but it is consistent with the grammar of the in our in our opening remarks the court's precedents require a clear link to or association between the claim language in the specification we've got that in spades here because the data processor is what is  the one of the reasons for allowance was that the new invention neutralizes accumulated motion data which is what the take away she was talking about so with your best understanding of the claim term because if the claim says one thing goes down is another thing goes out that sort of suggests maybe as you're fine tuning one thing you'll find doing one thing down if you see one thing increasing right of course the whole point of this is to try to to minimize or least one microprocessor for attenuating the energy level of the acceleration signal is the indication of feeding the stronger it just means reducing it it doesn't mean inducing it proportionally it be done statistically it could be done a