a concept remit is discretionary under oath to micro i think the question is there should have been a construction and there's no question under oath that micro that that's true the question then is should this court based on the evidence before it go ahead and construe the claims or shouldn't remain for a construction we think that it should construe the claims there is no factual dispute about how silver springs meters work the only dispute is a dispute about the meaning of the terms fourteen of your three years running credits in the record at three o six and the construction in particular that we proposed is that the terms mean capable of being easily and conveniently moved from one location where operable to another location were operable and designed to operate without a fixed look and we think that construction is evident from the face of the patent the patents repeatedly distinguish portable  think that nature is that not your position we are not arguing that they must be operable well ok i think frankly you could read the patent as requiring that we offered what to us seems a more generous interpretation which is it has to be designed to be used in different locations designed to be moved around well that's not quite like that clause seems to say operate without a fixed location it sounds like it is operating in the absence of now i think that certainly incorporates the possibility of using it while it's in motion and frankly i think the patents contemplated use while it was in motion but we are not we don't think that's a requirement and we are not articulating that as our definition of portable  safe so a stationary bike is different than a normal bicycle not because it can never if you move from place to place of course it can but its intended operation is to sit in one place while the intended operation of a bicyclist to move say that the meaning of these terms of a natural and ordinary meaning of the terms i am and then he quotes the dictionary meaning he says he as he understands and says i'm not going to allow you to argue a meaning that departs from you so i think that i think the rule that we don't have to object again at trial is there for an important reason that is if you if you show up in front of a district court and i and we object to pretty much every piece of evidence they put on  this issue again and again in front of a jury that just a different judge is not going to be happy with that knows what the all we have to do is object by arguing that it should be construed that said i think part of the problem is that while the district court said some things that would lead one to believe that he actually agreed with our construction he said that your construction seems right it just happened to have this and not infringement slants written into it and i'm not going to adopt it he also said things that opens the door for them to argue a different scope of meaning so he decided to dictionary definitions which frankly have different meanings they attach themselves to one of them and said in effect that portable mobile me anything that could possibly be moved they put a law professor on the stand to testify to his understanding of the meaning portable and mobile which he said with anything that could be moved including the house and the problem is precisely what it was i think was on cross examination you are were a portable mobile and that turned out to be rather hard to do but in closing arguments what the lawyer for yarn said was the district court said you can define the terms jury it's up to you and then he said look at the patent talks about meter reading now the patent actually talks about portable devices being brought by a meter readers to the electric meter if anything that seems to be a pretty powerful indication that it didn't include electric meters in the definition of portable  mobile devices but i think the broader point is that none of this for a long before the jury at all if they wanted to put a law professor on the stand if they wanted to put the inventor on the stand in a clean construction proceeding and choose to focus on those instead of the intrinsic record they welcome to do that before the judge but we shouldn't have a jury trial that's all about the instruction and when you look at those for the record the specification i think the specification is replete with instances that portable mobile can't be defined in the way that they implicitly do and anything that can be moved about so they distinguish portability both from fixed and stationary there are separate claims that refer to fixed and stationary devices and under their implicit construction i don't know what those claims might cover since everything seems to be portable and mobile the patents talk of quote low cost portable battery operated milliwatt transmitter subscriber units that may be moved throughout the base station geographical area no your honor to be said earlier while i think the patent would certainly be susceptible of that construction were you for something the error which is this is a device that is ordinary operation is designed to be used in different locations so for that let me give you the example i am not standing things that can be moved around they are attached they are also locked they are they're put in one place and they're designed to stay there for their entire thirteen year operable light the testimony was they are never used if you take it out because it doesn't it's thrown away or we take it back to the lab to see what was wrong with it but we never use it we never remove it from place to place what the patent is describing are things that are designed to be used in delivery trucks designed to be used by people who are carrying around a handheld device that's why they have that rhes you don't need a battery in something that is physically wired into the grid that's why they have to communicate across different cell network and reach different cell networks when they can't find one it's because they're being moved from place to place and so i think at a minimum the court failure to construe the term led to any ambiguity in the meeting affordable mobile that we had presented before the jury and  that simply wrong do we have to agree with you and your claim construction argument for me to prevail or could we find that the district court properly said these terms how they're playing an ordinary meeting and and sort of are you can still reverse you order i think if you if you disagree with the claim construction argument the standard of review becomes more difficult the question becomes is there of sort of any reasonable evidence from which we could conclude that these things were portable a little under the ordinary meaning and i think the evidence will suggest that they are right there is no dispute about how these meters work that they are physically secured to buildings they're locked with tamper proof devices they're like prickly wired into the power grid insulation removal is time consuming difficult you can't do it without a certified electrician and they can be used well they're being moved they have no battery which suggests they're not intended to be used while travelling customers aren't allowed to move them they are used all of that evidence is testimony about flame five as being relevant to claim one in fact the other you don't think though that dr binges therion case was sufficient to put you on notice that this was a answered bolt of them in trial and so there was in fact evidence and testimony about one way transmission because there were claims at issue in the case that covered one way transmission another jury didn't find for them on those claims that they have appealed that decision but the result is that it was not frankly until the jamie all briefing with anybody figured out that what they were really arguing with that the language transmitting to and receiving from digital data messages meant receiving digital data sixty one line be to twenty four so i think frankly they are they just consistent with their theory that they don't have to have data they have to have control signals but not data but that is a theory that d three or during cross examination of dr almer off actually said under pressure you know you can carry these things around yes it's portable so it wasn't where he was talking about mobility after he made the concession with respect to portable he tried at how these devices were portable and mobile frankly even under solar springs proposed structures and that that evidence was was the following the jury saw a video which in which a technician pulled a meter out of its socket and plugged another one back and this was all in a matter of seconds you can see that referred to in the record at a five ninety there was no testimony that the meters themselves were actually permanently bolted in place in fact the testimony was that silver springs own fact an expert witness said that meters were so easily removed from the pl spring founder and executive vice president who each testified that the smart meters which are wireless devices will plug in play and would self conceit here and would automatically wake up and connect in the network every time they were plugged in no matter which socket you plug them in in the silver spring network thus the smart meters were not designed to operate in only a fixed location they could operate from any location within the network the jury was shown evidence from silver spring technical docking so this automatic self configuration figure was built into every smart meter deployed in the silver spring network no matter where a smart meter was plugged into the network it automatically wake up and be able to communicate into the network the jury also hold her testimony from young's expert dr case and without any objections from silver spring that this type of capability being able to work from one place in the network and also being able to work from another place in the network was another way of explaining what was meant by mobile and portable and that's in the record in a six three four and that is the jury heard testimony that testimony a mobile device a fixed or lock in place for fifteen or twenty years that that intent would not disturb the device as fundamental character as a portable or mobile device you can see that in the record at eighty five ninety two footnote twelve in our briefing catalogs a laundry list of these concessions by dr omer off finally yawns expert dr been stated without objection from silver spring so the capability needs to be there but not that it actually has to move and those last two points bring up two issues that i think are important and won't really teased out system this really didn't get fleshed out in the briefs but in the in this prior art system the thing that they said were the portable and mobile subscriber units to invalidate the patent were actually fixed radio units that were mounted on top of a pole and connected by a wire meter and that that rate unit on top of the pole could only be reached through g p s coordinates so you could only communicate with that radio unit if you use that address and that address was tied to an actual fixed location just that single location unlike silver springs meters which are plug and play devices that can self configure and automatically wake up no matter where they're plugged in in their network so that's the distinction is that under their instruction subscriber to that operates in a wireless network so you view claim terms through the lens of what one of ordinary skill in the art would bring to the table and one of them are still in this art would be somebody who understands wireless communication networks and what portability and mobility means in the context of the wireless electric meters but what it would eliminate or wireless devices that couldn't communicate multiple places within a network so for instance you can't distinguish other meters based upon the terms portable and local you are distinguishing them what other words in the past up and transported there somewhere easily or local i think you have to apply this capable of being easily moved a definition that both party used to the jury and understand the other limitation of the just because it's very hard introduced a sort of ambiguous term and my guess is if you're in that the jury is left to construe what easily move means or not the jury was left to apply that definition that both parties said was the court's construction applied to  can be integrated into machinery in the figure ninety that's describing a portable subscriber unit that is a set top box to connect to a conventional television receiver this plugs into a home the wall and it sits in your d n a your living room and you use it to do this interactive television application of the invention now that set top box the portability feature with respect to that ninety set top boxes at the top of column eleven and in the want to one patent actually says that the portability feature allows it to be quote  sure as i say as opposed to easily move to the personal cation and solve as i stated the devices were described by their own fact witnesses as plug and play devices this is unique for any evidence ever to suggest that these devices once in a root put in and how can be either route by the power company moved by the customer really by anybody to a new location and usually reinstall yes because they would work from anywhere in the location they could be placed founder and executive vice president is discussing how these devices can self configuring would automatically wake up and soon as they were plugged in so that means no matter where you take them and put them into the network they would automatically wake up and be able to wor doesn't require any intent for a finding of direct infringement so spring was accused of direct infringement in this case for making and selling and infringing network and its components including the smart meter how the end user the utility decides to use them whether they put them in multiple places or move them around doesn't matter the capability was there in the excuse devices to be capable to be easily carried and operate without moving because the work from anywhere in the network was just very quickly  addressed this issue in his reconsideration order and what he said was that this argument that that testimony was only about twenty five is countered by the fact that dr ben said hey there are similar components in many of these claims i'm going to talk about them all together and the fact was that the differences between upstream and downstream communications path couldn't have been a surprise to silver spring because that was in the courts martin orders from other cases and were applied in this case as well that because of the receive  pressed my learned friend on this question the answer was not oh yes here is evidence of where they reuse it the evidence was you plug it in once and it sends a wireless signal to find the network as any wireless device would have to do that doesn't mean that it is ever really used it doesn't mean even that it is capable of reuse there is no testimony that it is ever really used and in fact the testimony is all to the contrary it stays in one place fifteen years and it's done now i think there's a little bit of a rabbit that went into the hat in the argument you just heard because a lot of the discussion was not about the actual electric meters themselves but the communication socket that gets plugged into the broader electric meter and they have tried at various points to to argue that the communication socket that's really now the portable and mobile thing but that was not in fact what they argued below and it's not what they presented to the jury trial they accused the entire electorate commuter not the communications socket that communicates wirelessly that is in the record today for twenty eight page ninety eight lines fourteen to seventeen it's again in the record a four fifty five page seventy four lines for tonight they did that for a very clear reason they wanted damages from the entire electric meter not from some small component of the electric meter they can turn around and now say that the portable subscriber unit is not the electric meter know you're right if you if you will for us on portable and mobile you do not need to reach either the damages issue which we haven't talked about or the or the four hundred one issue and one thing to note on this point is that mr scott he knows entire argument started with the premise once you get past the a problem and claim construction cases and that's one of the reasons why you shouldn't just eliminate the last phrase from my proposed construction that that last phrase is actually central to understanding what distinguishes devices like a mobile phone that are meant to be travelling from place to place and used in different places and an old fashioned landline with a cord which yeah you could pick up and move but i think but which is notable for that last clause would throw out my portable generator you're under i'm not sure that's right because i think a portable generator is designed to be used in different locations but i agree that it would make up for question and if there were right dispute if this were a case about a portable generator i can imagine a fax dispute going into the question of trial but in this case th