the other and if time permits will a couple of minutes on the damages issue claim one of the three five nine patent requires command signals to be generated at least in part by the category signal and the stored signal structure identification data that came about as a result of the one nine hundred eighty seven amendment and the amendment conformed the claim language to the only mentions in the specification of what signal structure identification data is it's used the same way it is anywhere in this specification the specification always describes the product code tables being has access by the category signal together with the signal structure identification data that's the only description i'll get back to that i hope but some columns to and again in columns four five and six in fact the specification repeatedly refers to the single structure identification data as a specific device table pointer or a specific device pointer relief even if  your honor two responses to that one the claim originally said before it was amended ninety seven actually replaced with an amended time it referred to product identification data rather than six sigma structure things were done to edit the category signal provision at that time and they said at least in part by the cameras ago only replace the product information data with the signal structure identification data which  get to this which is defined in the specification as a specific device pointer which is part of an address to access a product table and that we think is where the judge where the judge went wrong and this is you know this was an opinion before phillips and before opinions like last week's on demand versus ingram and him and the judge said was that it meant any data identifying the signal structure it but he did that by applying dictionary definitions and he said he was doing that effect what he said this is a page a ninety that it is proper to discern the ordinary customary meaning attributed to word them some words themselves before considering the intrinsic evidence and that's what he did he looked at dictionary definitions for information and for data without first considering the intrinsic evidence he applied them and then he said that it was our burden to show that something other than ordinary meaning applies and i think i can show that something or didn't of the ordinary meaning applies here and i think the issue is whether after philip's and after on demand after other cases since philip's single structure identification data should be construed the only way it's used in the specification and that is something that is used together with the category signal as a pointer to address the product table  is the actual difference between the product going notification do which was part of the original of claim right off the the product identification data there are a product c which is the entire product information data the way that things are defined now signal structure identification data which is part of an address to a product and that's the difference and the reason this is important is because unlike the patent in the congo it might protect devices there is no pointer to a product code that goes directly to a command which has the data for the entire thing it doesn't have identification date is because it's not a term used in the claimants not it's not a term that we use in connection with with you know in this patent with patent talks about a signal structure identification data which is something which is part of the address to the product code as opposed to the entire press but as i understand it to two ways that you can implement the universal control you can have the product identification which you can play from from the unit itself and set that on the unit then the universal control will be able to control that unit then you have a second way of doing it do you do it directly from the universal unit and you put in the actual signal and the signal comes in from the universal unit to the control unit isn't that the same method of doing it whether you do it from the unit itself or from the universal unit your honor i don't think it is the same it that the difference is that in the patent there are product code tables which are addressed by the category signal and by the signal structure identification data those are then used to address the command signal which addresses the appliance by it for a direct signal or using the term address for the purpose the location address on the matrix that it is for are you saying to address to a particular signal it is to address a location it's a pointer to a location in memory and that's the way it's defined if i could if i could get right into that looking at the patent we pointed heavily in in our brief to column two which talks about a particularly preferred body match for the sort of signal structure identification data constitutes part of an address the remainder of the address being provided by the user selection of the category to which the appliance belongs and claims necessarily must be limited to the precise scope of the one disclose preferred embodiment don't you're on to that can't say that because our case law says that's not so no last week the question is what would a person skilled in the art understand that signal structure identification data means from reading the specification and if you go on past the particularly prefer to bo to the rest of the specification and have a start column for it just go to a few places and call in five also column for starting at line twenty it says the problem sixteen contains product code gren specific device look up tables indexed by the category select is that just another example of the same thing i don't think so your honor because what it's doing here is it's defining the product code as being a specific device up to this column for column five and six it actually defined signal structure identification code as being a specific device pointer and if you look at column five win forty six to fifty it says this category number plus a specific device table pointer carette stored signal structure identification  specific device table pointer just said earlier the portion i read that a specific device refers to the product code what it's saying is that the signal structure identification is a specific device pointer to a location in the product code table which is used together with the category signal i understand with the use you're making of the examples it is would seem to me that every such example you give has the same defect in it you're saying that the broader claim language has to be cut down to fit a detailed descriptions of the preferred  scattered throughout the specification it doesn't seem to me that that's a tenable argument i also don't understand your argument where you keep talking about philips are you saying that judge jordan couldn't possibly have gotten the claim constructions right because he didn't have the phillips case in front of them since his construction here preceded the issuance of philips note we have some are you saying that a reference to dex in a dictionary is per se reversible  i'm not was and then then well what are you exactly saying that relates to philips or any other recent case but all i'm saying is that his decision was a post or preferreds decision that his methodology was to look first to dictionary definitions to get or enter their or what looking first is a person a error no i don't think it was their own but and what is it but what i think he didn't do was then use the intrinsic evidence which says that signal structure identification is a specific device pointer and i'm not you know you pointed that out to him i'm sure he weighed it i'm sure he didn't agree with your preferred construction in his ruling but that's what happens in every litigation every day when one side loses so he isn't wrong just because he didn't adopt your conclusion and you haven't shown that he didn't consider your examples well he did consider certainly the example in column two and he said it was a preferred body that he wasn't importing it what he didn't consider was the parts of the specification we need to consider you mean he didn't discuss every example you gave in therefore you posit he didn't even think it think about well what he said he was doing was was using the ordinary meaning of dictionary definitions what he didn't discuss it as and i can say that cythera was the parts of the specification which refer to signal structure identification data as being a as they're defined in the specification you say define but that's a very loaded word there is no explicit definition section here is there sometimes is in a statute you're saying the way you read the patent you think that implicitly that claim phrases are being narrowly defined by that language well i'm saying judge that in column five when it says signal structure arguable is whether that's a universal definition to govern all interpretation of all words in the claim and even if they're broader on their face right and i would and i would argue that it that when it's used that way when it's the only way that the term is used in the specification that it is limited to that that's certainly the take away that i go from on demand case from the thing in the can down in this or last friday maybe take away is not a good mode of analysis certainly said that the that the invention has to be limited to what is disclosed to the specification and there is nothing disposed in the specification here aside from  may please the court if you're honest please what i would like to do this morning is to spend just a couple of minutes with respect to the issues that were just discussed on the construction of the three five nine in the know and that's the only thing you can properly do we already have the full briefing from from both sides so your argument should be limited to responding to what he said well and then we also cross appeal your honor with respect to the five six two which is what i'd like to develop a bill that larry thank you to issues with respect to claim dispute here with respect to claim construction as if the correct signal structure was found on a page will book the dispute here is whether the claims require you to store it in the universal remote control that chapter where that correct signal structure can be found or whether signal structure identification data also allows you to store the page where both use them in very loaded with well the point they're trying to make your honor is that the claim signal structure identification is nowhere within the claims limited to the limitation that c m t would import from for an a and that's the point that i'm trying to make with respect to their origin with respect to whether signal structure identification data is broad enough to include really any information that directs you to the correct signal structure stored in the remote when it's sold consumer with respect to the district court's methodology as i understand this court's decision and phillips it was really to make the point that the language what difference does it make he seems to concede that there is no per se error because of anything inconsistent with what philip said so too looks to me like philips is out of this case by more than happy to accept the concession i think the discourse methodology was perfectly correct in looking does it even matter if a judge jordan came to the correct construction even if his route of march in hindsight can be rejected if he got the right answer don't we have to affirm it is surely correct that this court refused judgements another pinions and certainly would just be importing a limitation which of course is a no no so you know that's a very self serving way to put it he said mr bloomfield says that the specification makes clear the one and only meaning that this patent conveys to somebody in the field and it's a narrower meaning then the phrase in the claim in the abstract the might  need to add at the end of the sense he quotes and the preceding sentence is a definition meant to limit the otherwise broader meaning one might read into the claimed phrase blah blah blah i would suggest one of them has to be clear i don't think it also suggest to runners that defining the claims in a preferred and body image if that limitation is going to be imported into the claims must be clear and it certainly is not clear and i would suggest to your honor that it is clear that this specification does not define signal structure identification time for purposes of the claim it uses that term for purposes of describing the preferred body and judge your ally significantly any testimony from any practitioners of this technological or that he did not you know it's what i thought too so therefore when you say it's all a question of what the artisan would make of this total document and particularly relevant language scattered throughout which of course is the legally correct then but how are we to know if we don't have the foundational evidence of expert testimony of how the orders in would've read these various free because i think it is abundantly clear your honor that there really is no room for dispute as to what the use of that term in the specification is just simply has no language in the specification from which one could reasonably conclude that it is meant to universal unit can be used in one of two ways to correct correct is there any evidence in the record showing that the unit was being used in the printing method there's plenty evidence in the record your honor there is evidence that this was used at trade shows to demonstrate its use there was evidence that c m t's customers called in ask questions how do i use this scan method there is evidence that it was in the manuals there was evidence that it was the only method that was actually printed on the universe remote control there was evidence that was the only method that consumers could have used if the code was not available because that was the book some months ago but those from assumption that all of the units would be used for entry but it wasn't assumption your honor i think the issue was that first of all this is getting past the issue of way for all of the expert reports all of the conferences in front of the judge the pretrial order this issue was not raised by c m t and under third circuit law it was waived under the local rule with respect to what's supposed to be in the pretrial order every issue a fact or a law that the parties contend should be litigated under rule sixteen local rule sixteen d had to be raised in the pretrial order so the first issue with respect to damages is that there was no abuse of discretion which is the correct standard by the district court that this was waived second of all what you get past the waiver and i respectfully submit that c m t clearly cannot the issue really is what is a reasonable t and how is that reasonable world to determine in a hypothetical negotiation both experts who testified in front of the jury said that in a hypothetical negotiation the parties would have agreed that a world t would have been applied to all units capable of infringing that's the way the case was tried where the dream truck crucial goals for the jury instructions were not to that effect but they weren't they also the judge was quite clear in the charging conference that he was not going to give the jury an instruct required evidence of each underlying use but what the district judge didn't tell c n n in the charging conference and this is a page forty five sixty seven and sixty eight the record is that quote i should note that in saying that i'm not accepting this language that's the charge i'm not saying anything about the organ meant that a party could properly make based on the evidence that is in the case or not in the case and what the district court is telling c m t was if they wish to argue that there was no evidence of underlying use and therefore in the hypothetical negotiation the parties would not have agreed to an all sales reasonable world t they were free to argue that and they did nothing but the illegal issue after there was evidence of infringement as to which  admits in their brief that there was the question then is what with the parties have agreed to as a reasonable world in the hypothetical negotiation and both experts here see m t s and philips testified that the units to which the differing was is that if you want to order you to the jury that because there was a low level of evidence of underlying use that the world to write would have been less they were free to they never did yours objection to jury instruction because there wasn't there was an objection by philip  jury instruction that required evidence of underlying use rather than allowing the experts to testify as to what would happen to the hypothetical negotiation with him to the object to it i believe they did not weigh this issue i believe they did  with respect to the five six two if i may wonder there are three reasons why a summary judgment of infringement should have been granted rather than summary judgment of not infringement first even under the district court's claim construction district court skews the c m t admits there is an infringement i'd like to jump if i may to the one fundamental error that pervaded all of the proceedings below with respect to the construction of the five six two and the grant of summ n and i pledge to show you what that was if i may by these charts that we of blown up this is language from the specification of the five six two from the first body to the five six two and what the district court did its summary judgment opinion which it called the most persuasive evidence that phillips had given up the simultaneous pressing of two keys let's take a brief step back the issue on construction of the five six two is where ther the claims do not in compass the simultaneous pressing of two of the keys out of the three that are necessary to program on the five six two method the five six two method requires the entry of a category of device  requires the pressing of another key which the pattern calls the entry initiate key and it requires the entry of the product code that contains a signal structure what the district court concluded was is that c m t is device and there's no dispute about this does all three of those things but the first two keys are pressed simultaneously and that was the distinction that was made between the claims of the patent and the device which the district court concluded that summary judgment of not infringement should be not should be granted now the error that permeated this entire analysis came from the preferred and bought in the district court looked at the language in column five and came to the conclusion that this language at the end that in any case that the number of keys pressed exceeds one the routine is not part of the present invention so what the district court concluded was is that the teen referred to in column five was the five six two and the district court therefore concluded that if you press two keys then the five six two invention was not implicated and that was that based on the fact that both of pricing and a single and rather one of will this interpretation that i just mentioned judge friedman is what led to the incorrect claim construction which is what your honor just mentioned but really what this column five says is nothing at all about the claims it's important to understand that the preferred body image five six two contains more than the five six two above this pressed in the universe remote control how does that remote control know that it's a command like channel off or volume down as opposed to i'm about to enter the program you have one minute left thank you  this column refers to the fact that if three five no i learn method is included and it goes on to describe why the three five nine should be included in case the code book is lost that in the event two keys are pressed when the three five nine is included the number of case pressed exceeds one the routine is not part of the president vention the routine referred to in column five which incorporates figure three is not the routine of the patent which is what the district court said is the routine of the three five nine and it is the routine of programming the v c r to record and that's made clear by figure three figure three says if two keys are press what does the remote know what to do it says if it's the learn button then you go on to use the three five nine method if it's another button then you record on the v c r but it is not the routine here that's described as not being part of the invention is not the five six two time  two certainly the present invention is but the error that the district court made was construed team to be the present invention the five six two code entry method and that's clear in the district court claim construction that is the number of key tries to see what she will do the routine that's referred to in this column five is the routine on the right side of figure three and it says that and the routine on the right side of column three judge friedman is not the five six two it is the routine that the microprocessor goes to in the preferred embodiment that includes multiple methods of programming that says on the right side i will incorporate either the three five nine learn method or i will tell the p c or to record so that if two buttons are pressed in the preferred in the body not in the claims but if the two buttons are pressed in the preferred body what this language says is that that routine from those two buttons the record for the three five nine is not part of the five six to the district court read this is saying that the routine is the five six two which is not more of the present invention with two buttons are pressed and that i respond only on the five six two and i only have a couple points to make first is that i think it's clear from what they were saying and that is the first paragraph in any case the number of pieces pressed exceeds one team's not has taken the initial step for implementing the present mention so the first paragraph are saying if you press more than one key it's not the invention if you if you press one key it is the invention one thing that mr bean  didn't address here is claim one of the patent which he did addresses briefly make claim one was amended to change one's two one perspective one subset of keys to respective one of one of the arguments they made in their brief was that that applied only to the category deploy skis and not to the entry initiate key and i want to make sure i clear that up because that amendment from that's eleven eighty nine to ninety of the appendix so at the time that warrants was changed to one the category he was not even part of the claim the only thing that the change from ones to one could have applied to was the entry initiate putting aside the specification which i think supports totally esther's the prosecution history when you amend a claim to change ones to want and it has to apply to the entry initiate signal into the keys that provide the entry initiates a go i don't know how you can make any kind of argument that it can then be more than one key either literally or by the doctrine of equivalence thank you thank you  programming the patent method of the five six two and the three five nine this column says nothing about limiting the five six two particularly when the five six two is used by itself or in conjunction with anything else it says nothing about the five six two and  one i would like to respectfully suggest that also was never the patent in both the independent claims one and i is very clear about precisely the number of keys that it uses with respect to the three functions t programming code entering the entry initiate key and the entry of the program in claim nine it's very clear that there is one key one key with respect to  the code of the type of device t v v c r whatever the pattern is very clear it would use is the indefinite and with respect to the entry initiate it's very clear that we respect to the product code uses at least one the same is true with respect to c five in line thirty three it talks about one of different categories of keys in category in line thirty five it talks about at entry initiate the indefinite article and then in line thirty four it talks about at least one of the product code keys to enter the code for the advice to be program c m t s devices infringer literally they use a key to enter the code there is no dispute about that they use a second key that tells the device that the code is about to be entered there is no dispute about that c m t is device that requires you to put in the code of the appliance there is no dispute about that there is little infringement the only distinction that c m t makes with respect to the device as compared to the claims is that the first two steps are simultaneous entry and the patent does not require it according to see empty there is nothing in these claims i respectfully submit that limits those first two functions from being done simultaneously in fact the only one of that's important in the claims is that the code of the appliance be entered after the first two steps and that's why it says after thank you thank you thank you both counts all the peel is taken under submission