specifically what i'm addressing is the first part of flame one where it says a link program adapted to both interrupt streaming and access ancillary content t board said that the definition of the only program which we don't dispute was a set of instructions that tells a computer what to do when only to select a set of instructions program itself has no special meaning within the context of this patent and if a computer programmer is told to go out and write a program that can perform functions a and b a computer programmer would not believe that that program already exists because there's a program over here that does function as a and there's another program over here that does function b but that's exactly how the p interpreted this language saying agent link program adapted to both in iraq and access because it said that the channel reference had a program for interrupting and i have a program for accessing a question to separate sets of instructions to some it's been a long time but when i used to write programs and if i used to write programs that included a sub routine a sub routine had to be present so that it could be called by the main program so therefore it was part of the program in other words that some protein didn't exist as part of the program the program wouldn't perform its function a program to separate team maybe go to line one thousand and twenty seven and perform the sub routine  a different set of instructions in the decoder and he different set of instructions in the hotlink and they said well as long as both those functions are met there exists a program that can do functions and can be and as i said if a supervisor went to a programmer and told that program or write a program according to this functional specification and that phone functional specification had function and function be and that computer programmer went back to his supervisor and said already know  program that does say i already know a program that does the my job is done i don't think you get a very positive reaction from his supervisor datapoint because that's not a pro think there's anything in the spec that describes what that application let me repeat my question is do you think there's anything in the specifications that describes what a link program is as opposed to what a link program does yes i do your honor and i think it's not only in the specification it's in the original claims as presented because the written description requirement encompasses what is in the original claims as part of the specification the claims are very specific about what this link program is go field would understand how to create a program that could accomplish those two functions there's nothing new or unique about the source code about the language that he wanted to program and there was enough in the in the specification algorithm this described in there that embodies this program yes is there a specific description of source code there is not what about the prosecution history to look at simply the question of whether or not there was written description support for whether or not the link program was going to be transmitted or provided across the network we can look at appendix page of leaves three three nine where would understand there were interface links there were elements of the interface linked program and then interfacing program is another name for a link program what about the sentence above the paragraph respectfully because little program has to do both functions and it's the only program that has to do both function this is not an instance where the claim was written words as a device having instructions capable of doing actual why this is not a capability claim this isn't one of those kinds of claims where we often see where there is a computer that's capable of doing something it doesn't really matter where the instructions are or whether they're part of a program or part of multiple program but this is saying the very thing which a provide over a network another of the elements in this claim only part of the program so when you're providing the interface links you're necessarily providing the link program the interface links are elements of the interface link program if i were going to provide a program and only provide half of the instruction set over a network i wouldn't have a very happy recipient on the other read because with only half of the instruction set or half of the elements of instruction set it wouldn't be able to perform what the plane requires but if you're one thirty one declarations then your response to the written description requirement describes what's going on in that way then maybe that's what we're forced to understand as as to the meaning of the claim that that you're not necessarily spending over the paws on one over the network along with the hyperlinks network for this service and that those hyperlinks included this visit in the gas to all those hyperlinks included what was necessary in order to perform the link program functions that's what was said there was no unequivocal disclaimer here where anybody comes in here and says my invention is sending separate programs across the internet to a recipient this is all of the discussion of whether or not a link program was provided the link program was defined as something in claim one that could have both functionality is the access and the interrupt functions it stated expressly in the claim and moving on to the rest of those two elements in the claim we believe that people have got it wrong the other elements says that the interface the interface programmer link program is provided over the network and it says that the easily program is associated with the video stream now what the p tab says well that doesn't mean that the entirety of the link program is transmitted over the network or is associated with the video stream and i would suggest that that is also a misapplication of the plain ordinary meaning of these claim terms and moreover it's not logical and it doesn't make a lot of sense why am i providing only part of what functionality is required for the link program and i'm meeting the requirement that the link program the one that has functioned a m d needs to be provided over the network and i think it's important to your honor because it begs the question what's the difference right what's the difference between sending back in the late one nine hundred ninety s in the early two thousand when intrade taylor was a pioneer in delivering the video on demand streaming services one of the very first and they were rolling the services out and did so in thirty five different cities around the country cable networks but they had to provide it to video players media players like windows media player that were not programmed and not built to be able to accept and read video on demand with what they call the click through capability that is the ability to interpret your a lynx hoplites that are embedded in the video stream so what they had to do is they had to make sure they could service their customers and doing so they had to provide a link program along with the video that what a lot of those media players that their customers were using to both interrupt and access that ancillary content and all that meat sounds like a simple step in hindsight but back in the late one nine hundred ninety s in two thousand when video on demand services were nascent it's even available if you were working with a windows media player that wasn't built to do that when it comes to only sending over the access function but you're also sending that interrupt quoting i will read the exact sentence from the prosecution history and it's on appendage page three three nine program is the same as the link program and that the link program is delivered to client software in the manner described in the eighty four application and that includes where there is a program that does both the interrupt and the question was a computer program and it was a computer program that recited a statistical analysis request corresponding to two or more selected investments two or more selected investments must be part of the statistical analysis analysis on two or more investments and this court and if that is a twenty eight sixteen or thirteen fifty two so that was an improper reading of that claim element why because it says doing something once and then doing the same thing again is not the same thing as doing something at the same time simultaneously and to borrow the analogy that this court issued in this in great form a decision if a dog we're looking at what our options are and it's the same basis so i suspect we'll be back up here if i think that whatever is decided here might very well have an impact on that case trial but that's that's not been decided adverse to entertain thank you w why i think there's serious flaws in the owners arguments on appeal i did want to address the more important point which is that even if you were to agree with them that have got the construction of one program wrong in some subset of sense and even if you could identify a competing construction that they're offering on appeal that was preserved below which i seriously doubt you'll be able to do in the record it wouldn't matter because the p t have also found that the claims are into supported by chance hotly stream alone by itself nothing else is necessary so because of that even if you were to give them some additional construction that further cabin then the only program to somehow have some definite structure where you could say this is where the limit of the leaf program is the hotly stream in chen would satisfy that construction and the people have is already told you that they don't address this in their appeal groups at all they've made no attempt to show that there's any harmful air here in the claim construction so for that reason alone i think the court would have constitute the link program they never responded that argument below which was the primary argument that petitioner was making so all of this noise about whether link program could be one or two for what even that would mean completely irrelevant of course it simply  council agree that the construction was correct when they stood up a few moments ago saying they don't dispute the construction nor could they in their reply brief they effectively admit that that's the construction that they proposed that they rely on so really what they're challenging is the application of the claim construction to the chen reference which is of course a much more deferential standard of review that this court must apply to what the people did here and our contention is that peter did nothing wrong for i think the reasons that the court is already probably aware of based on the conversations you had a moment ago with my co counsel so the first problem is what with which if we're going to adopt the construction that it's if the if he gets construction was correct that it's just a set of instructions that  peter what to do what more are they asking you to do to this construction whether that's a little unfair is it not because the pete town subsequently clarified its construction to say you didn't need to be limited to a single program and that ends up being the dispute required why isn't that preserving ok what i would preserve the issue except that i heard co counsel stand up and say they don't dispute the construction you know he read what the construction was right before he got to the whether it's two programs around and he said where you combine the streaming winks program with the decoder what is a construction that would distinguish that from the claims the answer is i don't know because they don't they don't tell us i mean if you look in line why can't you program to be a program i think that's  the issue so i just get the premise that we know what a program is it's not clear at all that there's a limit to what a program is so during questioning during the appellant's presentation i heard the problems with trying to identify what a program is program of instructions that are executing on a computer at any time and what's the structural limitation of if they want to make this this grand argument about some structural limitation on them where the scope of the program is it's up to them to tell us what that structural limit is show support for that you need to the claim language this isn't right to conclude that any two sets of instructions located anywhere on the network can somehow be plucked and smashed together and deemed to be the single set of instructions i think if those separate set of instructions were working together to carry out the functionality of the claim not give me something ok well those are facts so you don't have to worry about the extent of this hypothetical but i think even on that hypothetical my answer would be in this case yes because of what the what has happened during the fall history i mean in particular in this case to obtain allowance of these claims the patent the inventors and their expert had to come in and swear to the patent office that any disclosure of a computer performing this function is enough so that's what you if you have if you see the computer performing these functions that's all you need to see to assure yourself there is a link program and that's what we have in the general franks i mean there's clear as day the check reference does exactly i mean it's almost literally word for word what they say this gap demo was that supposedly product so you're referring to let's look of like program as well i mean there's nothing in that sentence that takes away from what what was said in the sentence before that any disclosure is is enough i mean it's not like this was a one one are sins they say at numerous  he says again any disclosure is where this language comes from any disclosure of a computer performing various tasks necessarily means that there is a corresponding program providing the required instructions to perform that task therefore the fact that the computer performs the disclose functions when a user interacts with interface lake unnecessarily requires that there is a link program and struck in a computer to perform those functions if you agree with your friend that we requiring a clear and unmistakable disclaimer in th circumstance or something less required to turn to rescue you well this is not a disclaimer case so i mean i agree in general if i'm trying to narrow down or otherwise broad claim by using the file history that we need to find clear in a mystical disclaimer but that's not the argument that's being there and that's not the case because there's no plain meaning to their term program well that's certainly true when there's no evidence that there's any plain ordinary meaning to the term link program the only expert testimony is dr both who said there is the to the term like program but there's there isn't you know several cases from this court where the process was used in a similar way to understand the claims in a broadway which might even contradict deplaning so for instance noting that the way you produce this program this idea of a practice doesn't seem to be sent in accordance with the claim language because there's no link program here it's just a stream of hot links talking to something else the same argument they're making here application of software operated directly by the user the term program in quotes is more general cover and also software that's not operated directly by the user such as code libraries background tasks and operating systems so even in the fall  st self we see that this notion of program to find in this very amorphous way purely in functional language to talk about anything at all on cute or the performing its functions well sure this is three sixty two of the joint appen which is the declaration testimony of the doctor lawyer that's referred to in the in the file history section we looked on page three thirty should be none of which are consistent to be honest so it varies from a single link program which i think is the construction that we're sort of talking about two on page fifty seventeen of their opening brief they talk about a multi poem and program being within the is that the hot link is both provided over the network and associated with the video stream we don't dispute that but that does not mean that the hot link by itself comprise it's the same argument you're on or who are saying that there is no link program and that the hot link hotlink stream by itself does not constitute a legal program and that's what we've been saying all along we've been saying that ada link program that does functions both the functions to both access and interrupt is not a link program we said that about the hotly program and we said that about the decoder and chad and so this is the exact such one having ordinary skill in the art would appreciate that the claim link program is merely the list of instructions to perform the disclose functions the list of instructions that's a program and we know that one of ordinary skill in the ark and identify where lists of instructions exist and are separate from each other because that's exactly what dr boe their expert did and it's in his deposition at appendix page twenty that interrupted the video stream and the third set of instructions was a set of instructions that displayed whatever content ancillary content was pulled down from the internet so dr both have no problem whatsoever in identifying him chained where there are three separate set of instructions which he said don't necessarily relate to one another either and that's on twenty seven fourteen and twenty seven forty one of the appendix and his deposition where he said no you know the hotlink instructions are necessarily associated with the decoder and the decoder is not necessarily associated with the video stream but the point being is he knew how to identify a list of instructions and all our experts said in the prosecution history was that in the in the environment of this invention that entertainer rolled out link which is an element of the interface link program which is an element of the linked program element of the linking program not some separate set of instructions so the suggestion that one of ordinary skill in the art here would know how to