another for a number of reasons including that under speed it the experts agree on that point in the in the in the evidence or hearing before the district court after heavy haulage expert agree with dr islam on three different occasions at twenty one fifty two in the joint appendix twenty one fifty five and twenty one fifty nine that turns in bannon out of band have a general and had a general meaning and generally understood meaning to those were very skilled in the art at the time of the invention which is two thousand and one and that that understood meaning was that they're separate and distinct from one another but it is separate and distinct is that enough well so there's more certainly that that helps get us there but the claim language itself provides considerable context the in band communication provides the additional context of being with the between the exercise apparatus and the local server it also must be but if you can see that that both in bed and out of band could change over time correct that's right so you're saying that you know what's in band today could be a totally different than what it is tomorrow i understand that that might be useful for the innovators but how does the public then judge its conduct based on those descriptions of invented out of and if they're necessarily moving targets because the inventor now ben are used in the claims in the same way that you might use first and second so if you go through the specification and substitute for time c in band so the two were first in every time see out of band substitute word second it reads exactly the same we're just talking about two separate and distinct instances of communication and but when you have a situation i got it so so you're saying that i could have first and second and don't define what first is and don't define what second is and sometimes they overlap no i'm just said crossed over  i'm referring to the places in the specification that polarized is trying to draw out as being inconsistent with the idea that first and second are that invented out of band refer to separate in the same instances of communication that's the main point the specification the claims don't cover every single thing that's in the specification claims only cover systems that have both in band and out of bank medication going on at the same time so if everything was in band claims don't cover that they don't purport to cover that  the example they they illustrate the distinction of separateness using in band and out of and and invent communications being tied to sort of a simple apparatus a simple mode of communication where things such as a commune interactions with sensors and actuators very low bandwidth very low tech communications are provided for out of bank communication that was something that required additional componentry in two thousand and one these days a lot of that could has those two separate and distinct instances of communication in the claim language says that out of bank mutation must be with the user and it must be related to the embankment occasion or have a relationship to the in rank communication and in bank communication must be wireless by directional and between the exercise apparatus and the local server so we were provided plenty of specificity in the claim language itself that helps us understand when we're talking about invented out of band but  the questions you're asking plays really into the argument that the district court bought into that the idea that the patent is speaking in terms of specific bands and that the claims are directed to specific bands are not directed to specific bands are directed to instances of communication the referred to as an in band communication which is between the exercise apparatus and local server and everything else which is out of band communications i have ever both of th specification by way of illustration to distinguish that make that the distinction between inventor now to ban it said that over time things might that are in band these days are out of band these days might become in band by way of illustration that doesn't mean that they will meet used just like the first and second so the characteristics of it don't matter if it's if you invent as f in ninety two point one in everything and out of band as everything else that's fine in bang can be any any other specific you know band and everything else subsequent advances but in band and out of band or not that they're there really referring to first and second and not referring to a particular band so if something migrates to a different type of specification what the experts what the experts said this first and second communication i didn't see the expert testimony embrace that idea at all i thought both experts said that in end and out of the end have meaning to want to kill me are when there is a reference point to understand what you mean by invent another and in fact there were ten transit references that were cited ten pieces of prior art discussing the inventing out of band that were presented to the district court and none of these said it's the first communication the second communication if i'm wrong show me in the appendix where any one of these references describes in the end an out of band a simply a first communication versus a second communication i understood them all consistent with the expert testimony to be in band and out of band with reference to something with refs with a starting point a reference point whether it be frequency or i don't know anything any criteria and then say everything like you said ninety two point seven well that's a frequency right so in the end is defined in band so now we can define what's out of band everything that's not that and my wrong a missed missing something in the ten pieces of evidence submitted or the two experts testifying it did one of them say clearly and unequivocally that it just means first and second to want to skilling are what we're arguing now it would be inappropriate for either of those experts to do that because that's claim construction that's internal assess the assessment of internal coherence in the context of the patent no no time out the supreme court said into that expert can tell us what terms mean to one of skill in the art and i thought both of these experts did testify to that point and neither of them said that to one of skill in the art this term means first and second communication i don't see that in any testimony present i'm not arguing that that's what they mean to want to skilling are magni arguing that's what their legal meaning years in the context of the claims o china so you're saying that this patent really defines the terms different from their meaning to a skilled artisan i don't intend to say that no no i say i'm testify to that he was asked about it i can't take you to it in the in the appendix right now but it is in there it's i believe cite to it in the briefs i'm not certain of that but that was part of his testimony at the evidence rehearing he did say that you could he said you could call it first and second you call it i think he even said you could call it ralph they both said with regard to a reference point and that's that's true you do but the you when you're making the system the claim system you can that's consistent with the entire context of the specification every single example is given in there in band and out of band or killing present relationship once in the entire case relationships in a plane an ordinary meaning kind of term  the word does not appear in there but in band and out of band undeniably have a relationship throughout the entirety of the specification they're always referring to the same their communication regarding the same exercise  it you can't talk when i'm talking and you had a proposed instruction that did not argue it was indefinite right yesan ok and why doesn't that why wasn't that enough why couldn't band communication in a goes to and from the exercise device below that there is a transmitter receiver that constitute in manned communication that's plainly set forth in the patent so this figure shows in band an out of band communications going to and from the actual size device and consequently the initial proposed construction and the proposed construction is before the court threw it from alan's is or differentiated and consequently the as i just demonstrated in ben and it's the original and then construction was plainly wrong shape faced with that the district court asked for the input from experts and found three fundamental facts as discussed recently the terms are generally known there's no dispute about that are generally known to have be relative terms and importantly they only have meaning in a given context with a reference in the district court as discussed earlier went through the testimony looked at her testimony about five extrinsic ref it always reference a reference to the machine it's in band if it's on the machine because both both communications are involved with the machine so does provide any kind of any kind of reference there's no way of distinguishing whether as a district court said here  we come to the fundamentalists is that our brief of page twenty one we come to the fundamental issue which is that all of these things as the ten references require a reference without a reference you cannot tell what is in or what is out and that's the fundamental the court made that fundamental ask what to one skill that the art bring to the table in order to try to read this that the expert testimony is a court found your background technology tools work with respect to the issue of the relationship between the two claimed communications that was touched upon briefly in the in the opening argument there's no question that as as mentioned a few moments ago that the term relationships not in the patent specification it only appears in the claims was entered into the claims by amendment so it was not part of the original patent and at the time of the amendment there was no hardware is out of out of band hardware however the patent also says that as things get more complicated and better processing becomes available everything can be in band so the rob invention is a sequence of steps where certain communications take place at certain stages in the relationship and the explain what a person of ordinary skill would look for that as i briefly mentioned the terms in band and out of band woud generally understood like left or right collar short or hot or cold as a general or standing but do not have only have meaning in a given context with reference an expert testified at the hearing that as exhaust or exhaustive review of the patent specifications the patent prosecution that could not find a reference to distinguish the terms in band and then out of band and moreover simply removing the terms in mandan out of band from the plane and replacing them with one and two changes of the issue before the court that's not what the contradictory overlapping and circular discussions everything that can be in band at everything out of band can someday be in then or doesn't have to wait to some day if you use the appropriate hardware everything is in band and principle that everything if you pick in band everything else is out of an address is to communications but the claims has a third so that guiding or that argument doesn't fit with the claim language which has three three communications are both claims one and five as we discussed in our brief but do these issues of infringement if you get to infringement depend on whether any particular of the case had been advanced far along it is my understanding that it rests on certain communications being in band certain communication is a being out of band and the question arises and it is here today how what in what is an end and communication what is an out of band communication and what is the relationship between these two and this testimony before the court below and as discussed in the brief the relationship can be the same thing pattern says they can be the same thing they don't have to have a temporal relationship the patent specification because it doesn't discuss any relationship does not provide any that finish and with any reasonable certainty of what this claimed relationship is between the two communications out of band and invention indication i may be able to find any any authority from us that would indicate that whenever have this just pen for example that because now it has a palmer in the plastic is is not is not in not infringing simply because indefiniteness and as we discussed in the brief the other example is if we're going to have changing over time you don't even have the weight of changing over the time you use the complexity or the expense type of distinguishing factor that  depends upon the manufacturer or some manufacturers get good prices so that there's all in then because it's cheap other manufacturer making the same device doesn't get good prices and consequently they have an infringing device that's not a guiding princip that's not reasonable certainty at no one but one other point with respect to the issue of labor appellants case before the court today rests on having separate instances of communication exercise device and all of the communication is out of the hand but their argument as stated in for example in the reply brief give me an page sixteen of their reply brief and this just illustrates that the fact is that their place before the court today is rests on a new construction they state that they have these different hardware components illustrates the correctness of its construction it's being held up that these terms as used in the claims and no separate and discrete instances of communication well that's not that's a different construction that's not one of the district court below addr the of the claims in them by itself because the patent does not support separate and distinct hardware limitation as we pointed out in the claim and we discussed recently this morning i was respect a figure for change which shows how the band communication going into the controller and in band communication going into two controller the same hardware processing distinguishing criteria articulated in the spec and certainly not in the claim or what i want to distinguish in band from out and it's like saying i'm going to form a group and then telling you you can or can't be an a trip not tell you what the criteria for the group is not you any idea of what i'm looking for to distinguish between this group and that yes and that relates back to the fundamental principle that their idea that the district court found that you need some sort of reference what's the and thanks for any patent ever issues if you want to make a concerted effort to try to be confused you can do that and you can find ways to do that in the specification the what defines the invention are the cla and the claims to find in band and once in in man communication what's an out of band communication the claims do not suggest nothing in the specifications suggests that when we talk about in band we have in mind something specific in fact in band and out of band used in the varying ways that we're talking about that denotes a breadth of meaning in the case law is clear on that well if the the problem is is that when you say  but that doesn't satisfy the question of whether or not you have definitely claimed what it is i mean definitely describe what it is that you claimed i'm a believe it does because we have if you're practicing invention if you have a system that has two separate and distinct instances of communication one that then band that you do need to choose you need to pick what it is support specific and then everything else is out of band but there's additional context provided by the claims as to what's in band and out of band we've gone over one hundred times already you know between the exercise the vice and the and the local computer wireless bi directional that's in and out of band is with the user so let me let me give  say you've got one of these little exercise devices that has the time on it and then can tell you how many steps you did and you're saying that if if you claim that is in band and everything else is out of and then you get an apple x that ha no i don't think so so the example that comes to my mind is a bicycle and a bicycle computer and the that's the bicycle is the exercise apparatus it's got sensors on it for cadence and your pedals it's got  sensor that that tells the the i mean times the wheel goes around for the speed and you've got your local computer which is which is that they knew mount on your handlebars tells you how fast you're going so you've got signals going back and forth local computer science in the information the sensors are saying here's some information that's wireless it's by directional and it's between the exercise apparatus and the local server and then separately you're out a bank mutation you get done with all that you send it up to the internet and send it to a remote server and then separately later or in real time whatever you can you can sit down and have an out of bank mean occasion to review your data regarding that exercise session that's a separate communication it's out of band it involves the user that's how we know they're distinct and where does it say that it is that's x it provides context for the bicycle use that figure thirteen in the bottom quadrant there it shows bicycles and in the the little they call it mobile local server in that context that's a that's a by computer if you look at figure thirteen it looks like this and in a specification they talk about words george could be inserted in but you don't choose to or use the word george and nor would want to skill in the r have any understanding of any meaning of the word george in the abstract nor did you use it in the specification you said in the end communication and that has a meaning to that's what their expert said there were ten pieces of extrinsic evidence that were introduced there cited in a red brief and the district court made fact findings about what one of skill in the art would understand these terms to mean outside the context of the patent we that's consistent that's fine but you don't have the reference there's no really don't need to supply the reference in order for a person more new skill new york but that's not what that's his own unsupported conclusion there's nothing that he points to that says that he points to things that look exactly like they do use in band and out of band invent specifically out of and i mean everything else but he doesn't say we can't it's impossible to have a generalized discussion of invented out of hand that that's nonsensical of course it's possible to have a generalized discussion of things that are in man and out of band without first saying what's in band and out of that what's in that specifically i am out of time and more questions