hundred and seventy nine they were added in the context of a reexamination in what three o five tells us and it was actually quoted in f c s pre in any reexamination proceeding under this chapter the patent owner will be permitted to no no i'm suggesting that it wasn't brought in because it was done simultaneously so the idea that they are wiped out for all purposes shouldn't apply in the context of a three o five re exam proceeding where it's done in the same proceeding but certainly not when it's done at exactly the same time and it's expressed on the basis that pres reasoning for applying its ruling that it would be wiped out for all purposes and not applied in the real issue simply doesn't apply here here they were here i mean in fact true they were a year later and the consequence was that the public had had the bill the bill the words they were truly broad correct and you saying he that's right what happened was at the same time we philosophy proposes disclaiming thirty one and thirty two dollars they add the same claims that specifically recapture that same subject matter bit narrower so the intent as a whole this was in the same proceeding as should or should was suggesting that's right and your point is that when during the public in here you don't have the same issue because here if you look at what we have and reexamined going in we had something narrower coming out of it again that's remember vector i don't recall it saying anything about particular sensitivity as to the timing of when the broader claim was introduced and when the original claims were disclaimed that's correct and and  recall victor's seemed to say something like old well once you disclaimed those claims it was just pretend like it never existed and that's how we're going to treat disclaim claims so you go back to square one as if the original pat never issued with those claims now let's see whether the claims you wish to introduce in your reissue are in fact broader compared to your original patent with or without those disclaimed claims am i missing something from spectra i know  this time period where the public could have an expectation that that subject matter had not been claimed and that reasoning doesn't apply in this case and if you look at remember and when we have other cases they're not directly on point but they clearly say that the bacteria and now assist doesn't apply exclusively that they look to that reasoning that policy purpose is to apply it differently in different contexts here this is the poster child for applying it differently because it literally was using rule three hundred and five for its purpose which was you can choose to either i'm in that claim or you can make it a new claim with the same subject matter only never broader and that's exactly what happened here that answer your question just laurie even after williamson the presumption is that the drafter did not intend to impose a means plus function limitation on the claim absent the use of the term means in the claim williamson adjusted the presumption it's not as strong as it was but it's means both function is that right that's right i mean that is the so then that inquiry then is whether or not processor subsystem is sufficient structural for performing the function of determining based on various inputs whether to activate some notifications or is that the core of the issue wrecked the question is whether processor subsystem is either on its face so structural you never get there or is sufficiently structural that it performs the function well that's that's an interesting way you put that and it gets to the heart of this case i think which is you you added an extra out for yourself which is it is processing steps subsystem something limitation and i think there's an argument for that nd piece the last one that a generic processor wouldn't alone be enough to perform these particularized functions that are recited throughout your independent claims on the other hand process server subsystem sounds a lot like processor which is a definite class of structures and so if that's all you need to do in this limitation which for of processing subsystem for doing some particularized function and that's good enough but that's really the question that we have to figure out and we've already ruled several times in a related claim construction exercise that is after you've determined that a claim limitation falls within one hundred and twelve dollars and it means both function limitations then we must go to the specification for the corresponding structure and we've said time and again that when it comes to some particularized function in the claim limitation disclosing a process or a lot of generic processor isn't enough structure you out you also have to do an algorithm and that's because the algorithm is actually the brains that performs t function and it relies on the brawn of the generic processor to undertake those operations to accomplish the function so the question is if we have said and it's not and if well we have said when it comes to inquiry for one hundred and twelve dollars f claim construction that you have to have an algorithm you know or disclosed in order to have to have sufficient structure for performing the claim function why would we have a different you determine that there is means for us function that you look to the specification determine whether question structure and that's really where we are we haven't gotten to that nd step that the district court applied jump to it and that is the problem here that you have to make one of the analyses to determine whether or not there structure in your right williamson says you can get there two ways one is is not an office right in the other is the claim or cites function without reciting sufficient structure i think it's true has structure fit what apple says to get that nd one the way you look at it is you look at whether the processor subsystem has structure within the claim does it have  outputs and specifically you can go back to linear tac which applied the objectives in operations test and i think that's very effective here you can look let's take thank heaven team it has the most to work and it's just civically has an objective the objective there is to determine excessive fuel speed and the upshift notification for excessive speed i mean excessive fuel and excessive speed i'm sorry those are your objectives and the operation to how you get there is in the process or subsystem determining using all of the sensors that are in that plane when to activate the proximity alarm circuit is i understand how apple and you're right that apple and a few other cases the show sensitivity towards trying to figure out are there other words in the claim limitation that help understand what the what the limitation is not really just only what the limitation does and if there's enough in there that tells you how the function is being achieved then you're going to not fall within means pose function that's right and so as i understood the way you argue and your experts argue it seemed to just focus on whether there's any structure and you can put any outputs any connections that are in the claim limitation and if so then that's enough and i think our case law requires more it needs to have those inputs outputs and connections to other devices that reveal therefore how the function is being achieved that that informs us exactly what is inside the black box here would be a processor subsystem and i didn't see you taking that extra step and making that kind of an argument and a couple of things there here it does show you the how how is by reading the sensors right and in different claims it reads that differently sometimes it using the memory subsystem to get there and different triggers that come from those claims sometimes it's specifically directly to the to the sensors that is thank you ms woodw court judgment here pretty common practice to use a claim limitation that starts with processor for use and or game controller for it is and that's the classic syntax under which we understand that it's on st is there a definite understood structure and nd is that structure sufficient for performing the function that's recited there after so if the stuff if here ever cited simply processor subsystem receiving data from the sensors and stuff right there that would be a different inquiry than what we have here which is a more complicated determining step a step of determining whether or not you're going to activate a fuel over injection notification circuit there's no question that a general processor does not have that capability standing alone you're talking about in regards i suppose i'm in right cats and there is you know an entire line in my cats is a very good example because it actually has processing means as does the brown versus baylor health care four rather than means for processing but that's correct there was no the court was not looking at whether it was one thousand one hundred and twenty six dollars in the brown versus baylor health care case that's what i'm worried about in terms of looking at one cold what i'm worried about is using the tail to wag the dog that cat's decision absolutely helps to internet it says processor means for needs an algorithm to be disclosed but that's because it for so what i'm worried about is so what we're judged by some was in the cat's opinion was in a place where the patentee admittedly had to disclose more he could not rely on what a skilled artist would know the spec had to actually listed question that the tests are very similar williamson which this court held in bank asks whether or not there is sufficient sufficient structure for performing whatever the recited functions are and that's very similar but when is i think in assessing one hundred and twelve whether something is one thousand one hundred and twenty six i think we can look at said process or subsystem determining and say would a skilled artisan have known that a processor would do this of physically definite structure artisan have known exactly what type of algorithm or sub routine or software would be capable of doing it and then let me tell you what the evidence says on that point on that point we asked last these experts specifically that what type of algorithm would be required here he testified and says that a p p at three thousand six hundred and eighty eight they asked you know what type of algorithm would be required and what he said as there are there are a number of ways to implement that claim structure implement the claim structure that would vary based on a number of factors such as the vehicle attributes the operating can sit conditions etc so it's just it has to do with what's in the claim limitation all right and this is what judge durkin relied on to say this is this is exactly what functional claiming is he's saying what the black box what we put in a black box what the something else is the size of processor depends entirely on what the disclaimer had occurred later because there is a difference and i heard that discussion here between canceling or amending claims and disclaimed them it's thirty seven c f r one point five three and again this is cited in the district court's opinion that says that amending and cancelling claims during a reexamination they do not have effect in till you have the reexamination certificate so there is a difference in procedure if you're trying to get a claim scope by amendment then there is if you're trying to get it by disclaimer the disclaimer takes place immediately so immediately in december of two thousand and fourteen those those claims are no longer in to be used in order to add or amend other claims that cited in our that n p p section aside in every so this certainly was a strange procedure the velocity tried to use and if you look at the reason that they were trying to do it it actually all makes sense at the time that the reexamination was filed mercedes was another defendant that they had sued in the case and were c b s was trying desk certainly to file i p r's rather than go the ex parte reexamination route so mercedes tried to file a nd i p r on the amended re exam claims and at that point mercedes asked the p t o to merge all of these proceedings so that it could participate rather than having an ex parte procedure that took place with amendments under the reexamination walls and at that point when mercedes asked for the merging of the leaves so that it could participate the board declare that it would have a status conference and  by the end of the reexamination the disclaimer had taken place we can no longer count them so when we get to the end of the proceeding and we're doing a comparison have they obtained claims that are broader in scope in the original in any time that's exactly right the most often cases that they actually occur as part of a litigation where there is no ongoing patent proceeding have i fully answered your question with respect to the means plus function you know ok well let's return there the point that i was trying to make was that as judge chen pointed out in order to have sufficient structure to perform a stat like determining whether or not to activate a funk and you have to know more than the inputs the inputs don't get us there the inputs do not make the decision the inputs do not tell us d yours looks a lot more like the sufficient structure column than it does the means for a column and what your saying about what you would like to see in the claim itself before it could avoid one t doesn't seem consistent for example with digital detector for receiving and transmission and detecting said predetermine signal doesn't tell you how digital detector doesn't tell you how we found that was sufficient structure and  post williams in case there was no issue there so why it is an island as i've gone through all of these and i i understand the logic of your argument of pulling together cats and williamson but what concerns me is does the processor have to be programmed yes to work any microprocessor has to be programmed in in that in that i'm talking about a microprocessor if you have a microprocessor that's not programmed it's not going to work so we know that it has to be have i think that for receiving storing those types of as and mike had said those types of general computer terms or functions those can be performed with an algorithm so they're the hardware is sufficient structure but where you do have more down to is that only applies once you're in one trusts and all that that's exactly the balance right the balances if you're trying to claim the software in terms of the function that it performs that's exactly the whether something is one top six or no it is not a fact finding mission of law in williamson this case said that there were underlying facts that can be part of that analysis just as it isn't he in any type of claim construction that we ever held finding i believe i don't know i don't know if you express we have but certainly in williamson you said that there were underlying facts so i think sufficiency of structure and whether or not whether or not something disposes sufficient structure does include factual findings in terms of what is the function what does it require in order to be sufficiently disclosed how to perform that function and judge stark and here found that there was not sufficiency particularly rel limitations covers any process or programmed in any particular manner to perform this function that's exactly right and that's the point that i'm trying to ma when i think about the digital detector case that george moore was referred to earlier essentially that clearly was and a digital detector no matter how it's designed  what the definiteness case law suggests that there's not sufficient structure but i don't know that the other cases are not consistent with that my understanding is that all of the other cases that have analyzed whether or not there's sufficient have found that there is something more there is enough there including the the apple case i think the m t d products case that we cited in a rule twenty eight letter to this court is another good example where you have a lot of structural language that the claim term at issue was a mechanical control assembly it was very clear what the inputs were it was very clear what that assembly was connected to the why wasn't clear like how it was going to actually excusing on yes i mean i think procedurally f c s counsel described it correctly that there's litigation going on and there's an i p r going on at the same time so the decision was made to drop those  response to moving along and i think they said that expressed fully in the in the papers that why they were doing and that was so that they could move forward with the district court litigation which had been right a part of our sometimes the choice of disclaimer versus the other available choice which was to simply cancel the court or amend i don't know i mean i don't have anything in the record to answer that question precisely i can tell you the amended in new claims occurred november rd the disclaimer didn't occur until december th so it was much later temporarily and if you go back to what we're saying that are a saying the policy reason for the wiping out the claims as if they never existed it's public notice and here the public at all times was on notice of what the claim was and what the intent was the statute three of five allows either and it doesn't qualify i want to be the other  e side that they have in their brief says it's not talking about it in the context of three o five in fact it says there's not really a mechanism for this therefore we don't do it so it's just simply not in the same context and i'm running out of time quickly so i want to hit some of those high points on the news for us function if we can look for a minute a kind judge chant i think what you're struggling with what we're all struggling with is means if it's not a means plus function claim there may be other problems with the claim none of those are before us today apple alludes to this that there may be an indefinite issue or enablement issue i'm not saying that exists here in fact i'm saying it's not but that's the struggle and you can interpose those principles on the context of determining whether means bus function claim exists in the st instance from an evidentiary standpoint process or subsystem is a known meaning in the computer industry we've established that it's a recognized class of structures and all of the case law says that's all we have to have it doesn't have to be a specified structure for it to satisfy the pro whether it's to accept as a given that you know off the shelf processor could perform these recited functions alone without programming that some specialized programming and then what do we do because if if the thing that is needed to perform the function is actually made up of two things the processor and the programming then is it enough to just law that we have so far we have examples where the claim term in question is not definite yes it's a non swerd it's a unit it's a mechanism it's something like that it doesn't really mean anything it's a black box then there's the other kinds of claim terms where we've concluded this is something that people have skill in the art understand it refers to a known class of structures to perform this particular function so we're not concerned and here we have something different where we have what just for sake of argument is an incomplete type  of structure and that is the perfect reference to the processor but no explanation as to how that process undertaking the operation to achieve function so that's why this case isn't necessarily bound up by anything done so far i don't think it's i think if i'm hearing you right what you're really struggling with from seeing a fair number of how computers work is the same interpose which is the need for the absolute algorithm that tells you how to do it and i think we don't have to have that i think that's what the case was telling us and i appreciate that struggle but i think these claims as they're written they give you the substance of the how they tell you what they're looking to you to make the determination they are looking to the memory subsystem in some instances they're looking to the speed they're telling you all the data they're taking and if you look at the limitation we're actually talking about here the processor subsystem determining it what it determines is when to activate the notifications how it does that is based upon the data it's receiving