believe that our prosecution disclaimer law requires that you have were successful in making that argument you were quoting to me with the examiner didn't immediately allow the pattern after th disclaimer do you believe it's necessary kind of like in the field of this collateral stuff and like the issue preclusion do you believe it's necessary that your argument resulted in success before the p t o in order for a disclaimer to be found no no you are our latch prosecution disclaimer it's drek its position that individual questions of prosecution history that were discussed at l'anse in parties briefs and the prosecuting history as a whole do not support a finding history of the specific it portions is also reasonable or even more reasonable than the district court's interpretation because it's always threatens positions that only a single not multiple basis you on us you may ask why give it up to mention set up being a continuous recording device at all because it provides a context for the actual distinctions because that's the first estate is continuous and the second is about the initiation of playback you want me to believe that you only distinguished a little on the basis of the initiation of playback but this sentence seems quite clear that you would you distinguish  also the district court and defendants reading but that's not the only or if they're right that's not the neatly right but that's not the only only reasonable interpretation because if you continue to read it talks with an examiner like a reference against you you come back with an arsenal of reasons why he was wrong it's not uncommon to have more than one reason that you think the examiner is wrong and so here it seems that you are going to lead to quite discreet reason the first part at all because the standard being a continuous recording device provides a context for the actual distinction because you for the sat as being continuous recording then statement that dragon's counsel just made the judge andrea's found that there was a disclaimer of all recording devices and that we're somehow backing away from that that's not correct if we look at what judge andrews actually said he said quote the me in the prosecution history what you think the two clearest examples because i think i don't mean this is a question of law right it's going or question of law yes so you know certainly it's great whatever the district court said about it is lovely and can be persuasive but why don't you ok so let me let me point the court to fourteen forty six fourteen forty seven there's a statement there fourteen forty six to forty thousand and fourteen forty six forty seven in the appendix quote it is not clear by any and i'm reading off my notes any means that sites or even intends to provide and they continue in fourteen forty seven any control at all over the point at which recording or playback begins and ends thus construed in the light most favorable to sata again for the sake of and then the the last sentence in that paragraph since the prior art makes no mention whatever of the desirability of controlling the point at which recording is to be again it cannot be argued that it would have been obvious to add and change structure as necessary to achieve an on suggested  here appleton is arguing that it would have been obvious to add a record to siteswap because science is always recording it's a continuous recording device which is really the same way that the accused of isis operate in this case when you turn the device on it's recording when in the case of the cable t v boxes when you start the cable t v box up and start watching a show it's automatically recording you don't need to push a record key in order to begin recording so that certainly is is one good example of the disclaimer your honor pointed to part of the difficulty with what you just cited to me for me these seem to be simply characterizations of what they are sata however you say it discloses and doesn't seem like a clear statement that this is not what we do or we are distinct because you know that a clear and unmistakable disclaimer is usually this is what they do and we don't do it this statement seems a little bit more difficult for me to to see the clarity of this particular one is  here where you want to point out that they don't just say such as community recording but that we don't continually record when that's contrary to this invention right there or there are multiple times in the prosecution history where they point out that they have a record key that begins with for the recording process and the claims are amended actually to make it clear that when you activate the court there when you push the record you begin the recording process and so they continually well i could point to thirteen ninety  three about the middle of the page such as device not only fails to include a record key it cannot accommodate a record key since it is always recorded again pointing out that sata is a continuous recording device and it doesn't have the record key which was the thing that with that they were emphasizing repeatedly to the patent office as distinguishing their invention they have a record key to start the recording process sata doesn't need to record  court for example that to begin to begin a recording by initiating storage of the broadcast program information and said memory in a term the court construed as being to begin a recording by causing the storage of broadcast program information that otherwise would not have been stored in said memory unit so dragon emphasizes the the a recording part of that tries to argue using their unusual construction of the broadcast program information arguing that  broadcast program information is a different term than broadcast program information and has a completely different meaning which the court rejected but they're not really accounting for this language by initiating storage of broadcast program information when you begin the recording the plain language of the claim you initiate storage of the broadcast program information that clearly means just by its plain language that if you don't do that then you will not be storing the broadcast program information what else could initiating storage means and dragon has never really grappled with the plain language of the claim the plain language of the claiming you initiate stories you start storage by pushing the records and that fully supports the court's construction and supports the stipulated entry of of judgment of non infringement because that's not how any of these devices work you turn the device on and it begins recording you don't have to push a button to initiate storage no dragon argues in the grave three hundred seventeen the judge andrews relied soley on the prosecution disclaimer to support his construction of this term that's just not true genders rejected dragons construction because he had solely on the disclaimer to support this term finally the specification just plainly supports that construction to the specifications says quote basic operation of the instant invention begins with the user watching or listening to desired the disclaimer of course because they explain this language the patent office over and over and over again and said it's not about continuous reporting it's about you need a record key to start the reporting process so certainly that's a stronger argument your honor i agree but i think when and when an inventor or an applicant says starts talking about the instant invention the operation of the instant vention certainly i think that's something you can take into account and it's again it's the only way that it's done in the in the specification mentioned by the other council we have a different name in front of an argument for eight hundred eighty but there was a point that i just want to clarify which is you would ask about the question about how even if they give the construction they want how that works and the answer is that it's circular and that they say they argue that program information was just the stuff that happened after you're pressed the record so because they had a circular argument or they said well the only thing that's program information is what happens after the recording and then they said the program that the record keep a knish a program information they basically made that language to begin language circles because there was no way the way they defined it for you to ever have a program information before you pressed record so it was a that allows me to do that the second thing i point out is that on page up in exchange fourteen forty seven it was previously discussed and this is about five lines down five and six lines down they did say this does not seven yes and so we discussed the language at the beginning of that paragraph and i just want to point out that right after that language it says this does not achieve the utility of the instant that invention and you your honor asked about how did it relate to the invention and that's where they said it related to the invention and that's the same instant invention language that you pointed out in fourteen forty four moving to the broadcast program information issues drive them to a position below that there is no need to construe broadcast programme information page one zero seven and this is right at the bottom rung it's the third line from the bottom of the second line in the law i find as a fact based on the technical dictionaries eighteen contributes to the broadcast to climb here and you've got a judge that is had many many many many patent cases and i believe he said in his opinion if i'm not mistaking this is the clearest case of disclaimer he's ever seen the second  a separate recording device that is continuous recording i think within that context we believe the district courts language is unnecessary strong which actually triggered additional proceedings and for the reasons i just mentioned earlier and