good morning well just hold on o of bias potential setting is a setting of bias potential and the parties here agree that bias potential is the voltage difference between two electrodes in a circuit just like a thermostat setting is a temperature setting a bias potential test there is a signal taken from the first potential setting a signal taken from the second potential setting and then there compared to see if there is enough of an interference in those signals to either move but the claim as written uses the deriving steps to mean something different than determining an allied concentration it basically says you derive an li enough interference when you look at driving in the context of the rest of the steps in the claim those two signals are being used in order to figure out if there is a tolerable level of interference in order to move forward with  court's decision on the abnormal trace test it was the reason that the district court is wrong on that point is that in the abnormal trace test we're dealing with her that are measured at each of the potential settings and taking information from both those curves in the abnormal trace test in the comparing stat this is the curve that gives us the second signal output trace information from that curve is being used in order to figure out if there is an interview there is no long lead and not the only information and so because this is a comprising claim there is nothing in the intrinsic record that fo closes one from using additional information along with the second output signal information that doesn't use race infringement that second output information still dictates the outcome of the comparing steps and the differential measurement that is in that step but for that second output signal you wouldn't know if you're passing or feeling in order to move forward with want to go back to bias potential setting if i may to make a few points on that in terms of the intrinsic record because that is a key component of both tests that are being accused here the intrinsic record shows persons of skill in the art understood by its potential settings could be achieved with either open circuits or close circuits both those circuits are reflected and recognized in the intrinsic record and we see that in references such as claim construction even at the market in stage by deviating from ordinary meaning and limiting the term to close circuit and to the application of a set ball to each and nothing in this particular intrinsic record redefined by its potential at the hearing that there's no disclaimer of open circuits so that leaves i can matrix with lexicography and that's what they're arguing here on this appeal and that resort to lexicography in order to read  voltage in an open circuit when there's no current flow because that is potentiometer ie that is a well known method of measuring voltage from an open circuit even when there is no current  through the circuit as a whole the problem with ag matrix is lexicography argument is that it takes the definition of bias potential from the specification of the pattern in suit and clip quote a single line that talks about the voltage difference in a circuit when there is a current flow if you take that definition we have to look at the definition as a  can't just take a line and there is no cases in this court or from this court that allows one to take a single line from a definition and ignore the rest of the definition in the specification that definition confirms that the bias potential its setting is used in its ordinary sense and the line that adam matrix clipped quotes out is not limiting its including without limitation if the patentee wanted to limit the b potential sighting to closed circuit it would not have used that language that says you're supposed to use this in the broader ordinary sense which is in addition to what aca matrix says is just closed circuit and i bring this up because it shows that the district court's importation of a closed circuit limitation from an embodiment of figure one embodiment in the specification which the district court itself recognized was an example is wrong as a matter of claim construction and as a matter of science likewise the district court's implication of applying a set voltage application is also wrong and unnecessary if that's opposed to reflect the setting having gone through this briefing it seems that a setting is something that readily understood by a jury and we can just call this a voltage difference citing the problem is that the matrix is also arguing that this further requires applying a voltage to both the electrodes but that is not necessary to have a bias potential setting you can have an open circuit you can have a voltage applied to both electro so because the claim construction was erroneous on bias potential citing that infected the entire summary judgment decision on that term and the summary judgment on that term is also erroneous even under th incorrect claim construction that the district court did which was more limiting based on embodiments the district court didn't apply its own claim construction to your point your honor the question of is the circuit acting like an open circuit but answer is that it is a closed circuit and during the claim construction proceedings the district court focused on whether a circuit is open versus closed based on whether current can flow or can't flow through it their closed circuit does allow some amount of current flow and the district court nevertheless let them escape on summary judgment on this term by not buys potential sighting so in the second stage their scientists and their documents show that by design they have created a bias potential setting that drives to zero volt potential difference that's their setting and their scientists have said we rely on that current flow is the small amount of current flow that goes through our circuit that's necessary the way we've designed our devices in order for us to be able to measure the signal but at that setting so in terms of current flow and it being necessary to measurement that's an extra step that's not required by the district court's claim construction but even if it were there devices would mean comprising limitation at the top of the claim in the preamble doesn't suddenly defeat the fact that it's limitation has certainly speed satisfied each limitation here ok so why does this limitation  that are used for with respect to limitation for are used with respect to limitation five and they haven't been able to identify a signal first that is used both in limitation four and in limitation five  of current and the entire trace of voltage ok that's fine so you can have a signal up but be the entire trace for both current and voltage but then when you get the step five you have to compare those and if you entire voltage trace and then there's no derivation based on the entire current trace vs the entire voltage trace in fact in their reply brief they do this chart where they try to say that that they are relying on the same signal up it's on page thirty and thirty one i believe it is but even on the top of page thirty they are saying they're saying well it's not actually the signal up but it's a signal output attribute and there are two different ones that they identify g and i t peek and by the time they get over to page thirty one they're relying on different values altogether so it's not a matter that the process can involve other you know other steps but it at least has to satisfy the steps that are here and they have to identify which signal output is going to satisfy both steps four and steps five in the in the claim and they've been unable to do that all together does that answer your honor's question i think here on and so that this record here granted summary judgment for six different reasons and this court need not visit them all it can affirm based on two issues first of all the track resistance test does not practice the deriving limitation as your r t address and second of the abnormal trace test decks com has failed to identify two signal outputs that are used both in the deriving and the differential measurement limitations now with respect to the track resistance test the claim or cites deriving an analytic concentration from the signal outputs to determine an analytic concentration the court held that this means that the end like concentration must be drawn from or it came from the first and second signal upis simply using the signal outputs to determine a threshold but then actually calculating the annalee concentration from other values does not derive the anna concentration from those signal outputs certainly it doesn't derive an analog concentration to determine and like concentration from the signal outputs decks come must concede that under the court's construction the finding of not infringement is correct the court gave the term deriving its plain an ordinary meaning it referred to a dictionary after all to understand what the plain an ordinary meaning was moreover the whole purpose of the patent is to calculate this is from the abstract it's to calculate substantially interference free analyzed measurements by taking multiple signal outputs the formulas in a patent show that the calculation requires using first and second signal outputs so that the signal is derived from these values there is no lexicography that would broaden this plane in ordinary definition the patent never uses the word deriving in relation to the soul and body meant come argues that deriving must mean something different from calculating but the terms throughout the patent are used differently from each other as used in the patent the word calculating is always used with respect to the differential measurement it's always calculated from the differential measurement whereas deriving is always used with respect to the first and second signal outputs probably  because the process has to go through an additional calculation before actually getting to the final calculation when the deriving step is used but the glucose concentration in all events is still d n from the first and second signal upwards as the plane an ordinary meaning requires as far as the abnormal trace test we touched on that a little bit already but the patterns require that the first and second signal outputs are used to determine a differential measurement and then deriving a glucose concentration from the first and second signal outputs differential measurement is defined in the patent it's used in its plain adored ordinary sen which is quote that difference between multiple signal output measurements decks comes the shifting arguments throughout this case continually try to recast what the first and second signal up which are in order to mask the fact that it cannot rely on the same identified values for steps four and steps five in the patent in its reply brief as i said it tries to chart out the claims at the tops of page thirty and thirty one and still can't rely on or identify a single signal output that it's relying on for step four and step five in fact between those two pages it has identified eight different values that it wants to various points say are either the first or the signal output  bowl and curiously by the time it gets to the bottom of of its charting on page thirty one it is decided to simply drop all of the square root symbols from its formulas moreover as the court already addressed two of the values that it relies on are met are not measured signal outputs at all there are actually calculated signal up with so that they can't qualify signal up it's under the patent because the patent requires that they be measured signal outputs and what they're relying on are calculated values and in any event it's undisputed that at least one of those values work requires measurements taken at two different times it's not even a measurement again it's a calculated value so it can't be a second signal put under it at a second by potential setting for that reason the court should affirm the ruling as to the abnormal trace that now as far as bias potential is concerned this term has a play in an ordinary meaning in the art that was clear to the court a potential in the field of electric chemistry is what happens when you take two electrodes and you apply a voltage difference between them and a circuit circuit has to involve putting them in a solution of some form or electric chemistry can occur circuit to complete its argument so what happens in our product is the two the two electrodes are put in a solution and in a circuit in the voltage is applied to both of them and that generates the electric chemical reaction then the circuit as is opened and one of the electrodes is connected to a measurement circuit it's a separate circuit and that measurement circuit measures the rate at which the voltage drops off of that electrode that's that electorate is no longer in a bias circuit with the first electrode and they continually say well you're still applying a voltage to the first electrode and now you have the second electrode in it's own circuit therefore they are in a circuit right now they're not in a circuit they two isolated and discrete and separate circuits at that point and merely the fact that there's a trickle current passing through this measurement circuit doesn't mean that you have both electrodes in a given circuit with a with  a voltage difference being applied to each of those electrodes in fact the voltage has been entirely removed from one of the electrodes such that there's no longer a difference that it's actually applied to both of the  electrodes and that's that that's a fundamental requirement that the judge noted that throughout the patent it and all of the prior that they relied upon i buy is potential is applied it is a voltage difference that is applied to two electrodes and as soon as you take away the bias potential from one of them and connect it to something else you're only applying a voltage to one electrode dislike as my expert has repeatedly told me it's like the sound of one hand clapping you can't have a difference applied to two things i one of them is this connected all together and so that the arguments that next come raised through the district court proceedings are relying on trying to mix together and confuse the fact that one of these electrodes is removed and connected to a different circuit and they're relying on what happens in that circuit to try to argue that these two electrodes are in a circuit together they simply aren't in the judge was able to cut through these arguments and realize what was actually happening here and both the market and decision where he said look to have to be in a closed circuit and that buys potential has to be applied same sort of just one piece and all but i don't think they're in the same circuit at all at that point the is then connected to a measurement circuit that can measure the rate at which the the voltage drains off of that electrode right so they're saying well it's in a circuit but it's not the same circuit as the first electrode at that point it's in a different  and so the judge as i said cut through this figured out during markman exactly what the arguments were that the parties were raising and then applied his very rational and well thought out and very well explored  markman decision in the in the merits decision at summary judgment again the court doesn't have to get there because i think frankly we were in on the driving step and abnormal trace the fact that they're not relying on the same signal values  address the abnormal trace tests that counsel talked about during his argument with respect to the signal output and the information that's coming from the signal outputs the patent itself recognizes that you can have signal outputs as entire curves with multiple pieces of data and that you can then take certain pieces of information from those signal outputs and we see that in the pat at column ten where the patent says you can have a curve and you can take information such as the magnitude of the curve which is peak to trough or you can take information such as rate from a cur and use that information that is exactly what's going on in the abnormal trace test there are two signal outputs in the two bias potential settings for our first signal output value that's being used in  comparing stat we rely on the peak of that first signal i t peak the second signal output that we tape from the second curve is a variable called v t mobility we take that and then we use both that information and process the v t mobility output signal into a formula which the  patent recognizes broadly formula formulas can be used equations can be used in the process of comparing there's nothing that stops out when the patent itself recognises that you can look at the rate of a perv or of magnitude of her before you get to the comp step so one council says we haven't shown that you're comparing one entire curve to another entire curve the patent doesn't even require that it actually contemplates taking information from both curves and comparing them and that's what we what their devices do they then take that v t model and plug it into a formula in order to compare against i t p figure out the differential and figure out where they can move forward so we are using the same to signal output curves there's nothing that forecloses us in the patent or the intrinsic record or the language of the claim from using different pieces of information in order to meet those steps and our experts have consistently done so with respect to the track resistance testing one of the things that council crack a matrix said is that the district courts cl construction was based on plain meaning of driving and he took it from a webster's dictionary that's not in the record the problem is that the district court took the approach that phillips actually and mohnish is against which is starting with a dictionary and ending with the dictionary because what happened here is in the process the district court overlooked and body minutes that do not require calculating glucose directly from signal outputs but that's the way both the district court and ag a matrix is arguing driving should be interpreted and that doesn't make sense because there are embodiments in the patent that do not require a calculation the best way to see that is claim differentiation claim fifty three which is the asserted independent claim in this particular case has a driving stat claim fifty one is essentially the same claim all the steps