whether automatically as a result of an overlay activation quite cheering being satisfied or what i would term manual use for the use of an overlay activation signal and then we also have claims directed to how the user can interact with those overlays via an overlay activations that i want to start by stablish in that the term overlay each the parties and their experts agreed that it meant in the context of these pat back to two thousand and five they were examined by two different patent examiners for more than ten years if you terms that issue were added by men that during the prosecution they were discussed specifically with the examiner many times and examiners well let me just just starting where you left off which is these claims these terms the two terms at issue here or add fast well we maintain that the terms should be afforded their plain ordinary me and i think the point you're getting at is that the experts agrees that the terms in the whole phrase like overly activation criterion didn't have an give the terms of playing an ordinary lead aren't you left with a stark contradiction between t well no i don't think so your honor i think overlap of nation criterion is used consistently across each of the the three past i'm sorry for the patterns and one which it appears it's always referring to what i would refer to as an initial overlay such as shown in figure seven a the pattern in each instance where overlap division criterion appears the result is the the initial display of an overlay when we get the overlay activation signal and yes the claims use it in two different manners one to display the initial overweigh and then secondly using the signal to select the initially displayed overlay to display the underlying or associated ip material remote control to after they'd already displayed an overlay and that doing so results in the display of ip content associated with that overtly so here's my problem the claims re site displaying  generating or obtaining an overlay that is not yet developed but the specification when it uses the only overlapping word which is activating described selecting an overlay that is already displayed so just  tell me i mean this is i think the concern the district court was having how does one of ordinary skill in the art understand when the disputed terms result in activating an overlay that is already displayed which is what that she should open to that because it's the only word from the claims that appears in the spec i don't have a problem with with the district court study in that particular section of the specification but i think the question is what one of what are ordinary skill in the art understand by the other half body must disclose in the specification for example on the overlay activation criteria we have examples where the user can program the system to activate the only overlapping group and to define it is arguably informing what you mean by activation and all those terms in the class that's fair game right it's fair game but i think claim term is activation is really just bringing making something operative and that's consistent with the way the specific examples used in the specification and again when we talk about overly activation in generating the same thing but how does one ordinary skill know that i mean they're different words so would one fear leak assume that they meant different thing no i think when you're talking about prosecuting five patents in one hundred claims over a ten year period it's not surprising that they use different words to describe the same outcome if you look at the actual claim language that tells you what face exactly i think it's very good but here's here's i think that there's a problem with that and the way anderson your arguments are you're looking for the plain meaning of the for the playing term and as you just said that during the standard on the face but there's still a discrepancy between the claims of the specifications and if that's the case if we're looking at a discrepancy between the specifications and the playing written description argument in this lengthy claim construction process we went through i think the other point i want to make is we have the claims you can read the claims and even the just corporate understand ok and this claim the signal is resulting and splaying overlay in this clan that signals result in splay of ip material the question is is there support in the specification for those interpretations or are those plain meanings when you read the claim and specification where we're using the signal to generate the initial overlay council before you sit down i think i heard the term before you should done let me ask you so how do you respond to l g s argument that different claim term should have different meanings well i think that it's certainly permissible we've cited you the relevant case law that that there's nothing wrong with that what we tried to do in our proposed construction and say ok yes and some claims the signal results in the court never really considered that i wouldn't say we're shifting we're just saying ok if you want to construe it here's a way to construe it that would cover all the various aspects and body most of the claims of covering that are support thank you may it please the court in a careful and thorough analysis after several rounds of briefing the touristic district court correctly concluded that the terms overly activation criterion and overly activation signal are indefinite and i think my friends argument really highlighted the problem with these patents to what we're looking for here are objective boundaries that one of skill in the art could use to determine what is claimed by these patents and what is left open to the public and not going as was pointed out it's undisputed these are not terms that are commonly used in the art there's no suggestion that one of has a known me so i think that's of they would respond to your suggestion that there's no plane in the like name meaning of the phrase so what do you say that well i would tell you it's wrong legally and factually you honor and legally of course the fact that each word individually has an ordinary meaning doesn't mean there must be an ordinary meaning when the phrases when the words are put together if that were the case there  technology but this this technology here what we're looking at in this plan is not complex and it's rather simple respectful of your honor i disagree and i agree the concepts may be fairly simple but i don't think the words are so my friend suggested there's no dispute over what an overlay is that's and in the context of a pattern that has simple technology what's the difference between the words activates and meaning in any kind of software context you know my friend suggested activate might need to display to show on the screen if that's the case then i suppose my computer activates every program on my desktop when  an icon when i turn it on activate may need to interact with a piece of software in some way and that's the issue that activation here this is not a word that is used in the specification it's not a word  mr peterson that it's not we're not looking for even if you're not looking at any particular word in the claim even if you're not just looking at the phrase if you take the word what's going on with respect to the word we reasonably gravitate to because that's the only mention in the spec with there's an overlap with the clay we're talking about it a piece it arguably appears that there are two different things going on with respect to as big activation be so when you start talking about activating that overlay my friend suggests that that's exactly the same thing as displaying the ip format material that is associated and when you start trying to put that together with the claims they start running into each other i'll point out to you just as some of the inconsistency is you'll see here in the claims if you look for example at the six dollars to one dollar patents and claim one and just trying to to understand the differences in the signals so in the six dollars to one dollar patent there are two different i suppose there might be signals there are two different interactions perhaps one is responding to  activation signal by reading out overlays from memory and generating display derived signals to display the overlays and then there's a nd response to a user's selection of a displayed overlay by generating display format material so in the six to one patent you have a user selection that causes the t v screen to display the ip material and three hundred and thirty nine patent you have an overlay activation signal selected by the user conclusions so let me just as a hypothetical if we were to agree with her analysis for example pages eight through ten i believe wish i'm talking about the and just one note on these phrases this is not an accident these phrases are included in the claims this is not a case where we are picking a stray phrase out of one class and this is a case where these phrases were used  judge raina it raised an interesting point with your friend on the other side which was well why isn't this kind of a written description issue i might also add or it  we see a lot of these cases a lot of cases where you claim there added somewhere in the process and we're looking at what the match between what's in the new claim for a thing and whether it's sufficient written description in the existing specification or even whether or not it's the naval meant i get that i mean we see a lot of these cases but i guess your view i assume would be that maybe that's right and maybe you could have a written correct and i viewed the indefiniteness use you as a plumbing areas you know that one would st have to resolve what the claims mean before then going on to address written description and enablement certainly i think there would be serious likely three minutes changed thank you your honor all be very brief you've mentioned the dependent and the independent claims and the source of the overlay activation criterion i do think it's important that we not look at this just as a potential conflict between the scope of it and then an independent claim but if something it does actually bear on what an overlay activation criterion is i think my friend in the and there they were in patika that the overly activation criterion was not a condition that a condition was something that was set by the user and that the overlay activation criterion was really just any kind of information that may have some relevance to the information or to the condition that has been set by the user so we do think the presence of user command information in that dependent claim it's not just a question of conflict of the scope that you claim really is what is this intended to be and as i understand the argument below at least it was that overly activation criterion in that being essentially any kind of information we're simply not seeing at the outset to answer the question i asked your friend just about the mapping is hypothetically if all the district court discussion at a through ten which deals with largely the specification language of after they in the claim language if that we would cover all of the claims in dispute in this case well i would say you do conditions match if yes overlay the ip material or overlay the icon one of the skills we are reading that passage and looking at that figure would understand that that is overly activation criterion the criterion is purpose of the invention which is how do these displays go ahead of these overlays appear on the t v screen which two different ways they're going to appear automatically through the criterion or they can appeal appear manually through the signal and not every claim term needs to be defined specification i'll give you an example my friend on the other side mention this overlay enabling digital data that was a term that they initially disputed but then they dropped it and they were they were fine with the plain ordinary meaning of that term but that's not a term that appears there is no requirement and they haven't cited your case that says every term that appears in a claim needs to be defined somehow in the specification or even appearance specifications are also point to the prosecution this is not a term that just appeared once and kind of slipped through by the exam these terms were specifically added by man they were subject to interviews with the examiner where he asked where these terms support ok the control data butler is the same or allegedly the same as the overlay activation criterion specification and then many rejections and again interviews and sessions for the exam or so i think me yes it was thank you very much we thank both sides apologize for the glitch