the question is do you accept the notion that information about the slot allotment just a shorthand for what's supposed to happen around the clock in the cycle has to be sent out before six o'clock before we know transmission of slots to get the transmission information does your honor there's another question however as to whether whether the length of the communication cycle needs to be communicated that time as well in other words when to let the remotes know to turn off their rip their transmitters so certainly to allow the remotes a turn on the receivers when they're supposed to that information has to be communicated beforehand before what happened before they are before they  information would you agree but the hubble has to transmit something seems to me it would have to transmit for example interval time during what would be up into the end of what's numbered eighty two because if it doesn't transmit start times in interval times then for example in this example t x lp one wouldn't know that it should turn on although it's already turned on its receiving something from the hob but it wouldn't necessarily know it can go ahead and transnet but most importantly to this pattern it seems t x o p two ought to know at the start of t x o p one that it can go ahead and shut down everything transmission and reception say fat or e and so it seems that up until number eighty two not only does dark time need to be conveyed but two in other words or not number two have to know when to turn on its receiver or transmitter rather so it has to know how long to x o p is going to be transmitted for the problem was that in the companion case with the district court found was that all this information has to be transmitted before the communication cycle even begins where the we can get to that in the companion case in this case there's no dispute you don't make it to spew that is longer has all this information has to be transmitted before seven o'clock and figure three there's no infringement at least the start time so the transmission opportunities your honor however the end of a frame can be transmitted after that point and that that is actually taught specifically in the pa if we go to column twenty five line fifty five and use it that way too i just want to make sure i understand the pieces of information that you're delineated between in terms of what you are agreeing need to be transmitted by say seven o'clock on this diagram off because you won't know when your term is going to come that's right your honor but the question then becomes do both of those piece of information have to be transmitted at the same time before seven o'clock on the clock in other words do you have to tell a particular remote this is going to be your start time and this is going to be your end time at the same time as opposed to waiting until the some time later say for example at the end of the transmission opportunity tell the remote we are now done and that's why runner for the court to count twenty five lines fifty five and ending play one sixty second followed the body one sixty four of the frame one fifty two and similar to the starting flag one sixty ending flag one sixty six is unique bit pattern that provides an ambiguous to what the district court found one need not send the start and end information to the remotes at the same time is there just to be clear any disclosure in this patent like to point me to where an embodiment doesn't send them together from the rest of the transmission of information yes if at the end of the frank so there will be a beginning flag at the beginning of the frame and then frame at the end of the frame so what figure is this i'm sorry this i believe is figure date or positions of the frame but they are part of the same frame the only point is that just records construction seems to require that both the senate the same time technically that doesn't happen in frame one fifty two but just to be clear it from our standpoint from atlases standpoint the problematic part of the plan construction doesn't the come in the can and case where the information has to be sent for the communication cycle  so the question here is whether each really needs each and whether maybe can be read into the the limitation in question regarding what has to happen in each communication cycle the deserve what we believe properly found  language of the clan wires that there be a transmission from the hub to the remote and from at least one remote to the hub in each communication cycle why do you say at least one room alone that's part i don't understand construction can affect your infringement assessment medtronic placing the strategic reason based on demanding to know your honor actually has to do with what the passage is about transmission opportunities very clearly the patent also teaches that there can be intervals where the remote a remote doesn't have to avail itself of its transmission opportunity and therefore the remote wouldn't transmit so we believe that all the claim actually requires that a single remote transmit to the hub why would it why would like couldn't there be a communication of anything this is a big well that would infringe your honor that's the point we don't think it would infringe and we don't think that anything that allows that like not erogenous case would anticipate so if there are communication cycles where no remote you get the benefit of somebody has to sense something in that plain language why doesn't each one of them have to send something because what i'm having trouble with is reconciling your proposed since i understand the district court construction and i can see how it reconciles with the plain language i don't understand how your construction reconciles with the plain language i understand you want to preserve this trend transmission opportunity and some people don't transmit during them and i see that that is covered in many other claims like when seventeen  claimed six and i see that president that there may be a cycle where there is no transmission effect then the hub can reallocate time based on lack of transmission and i see that present in other claims i don't see any of that present in this claim and so i'm wondering why how your proposed construction reconciled with this very precise language each of which has intervals during which the hub and remote transmit  can send your honor that exact instruction require language is all remotes transmit franson that's not what it says and claim seventeen which depends from claim fourteen has those two limitations in it it has the each communication  language we're talking about it also has the permissive language that you just referred to so if the limitation in claim for t actually required the almost transparent friends the notion of a transmission opportunity would become pretty much superfluous but actually you had to ask is that a good point i didn't notice that before so claim fourteen has the identical language to claim twenty one with regard to this element and then came seventeen which depends on fifteen which depends fourteen further delineates by indicating that the hub can adjust the length of communication for because it's actually expressed we say people cannot transmit certainly the allocation would include a situation where the hub prevents or doesn't allocate time to a particular mode but the way the pad explains transmission opportunities throughout it's said that it's permissive so that's why we believe  claim so claim fourteen is a claim fourteen that limitation is problematic and given the addition of what languages and claim seventeen then we can alter the construction claim twenty one to be different in  well i don't ok so here if i agree with what you're saying now the one thing i'm struggling with is why does at least one of them have to send something where is the evidence of that because the language doesn't say ma the way it does for example later on in claims we stick with plain fourteen there's a language of allowance there so for example around line fifty the intervals being one when the hub is allowed to transmit friends to the remotes the same that same language allowed to happen that language isn't in the establishing limitation as far as the each communication cycle language is concerned so the maxim is that if we had actually uses language in one place and doesn't use it in another use in the words not used it doesn't that's different construction on this point from yours it's possible yes we do we believe that because of what language because the language is so the remote's so that infer that just so those that claim language that that's just mimicking the claim language how do we know whether the district court meant signed that phrase what you mean by it or what the or whether it means all three miles i take your point judge toronto it may very well be that what the district court had in mind was a single remote for the same reason that we believe that that's what this language means on its face and later in the claim there is a transition from the remote to the remote doesn't that suggest that kind of imprecision in the use of language in some of these flame elements i mean it seems to me on the face of this particular claim language put aside the one that i just referred to the one about pairing off it goes from florida singular without breezy interchange in between there is on its face language in this one about intervals and nobody would say that in each of the intervals not each cycle but each of the intervals all the things that follow that language namely the hub  there is a remote there is a receiving there is that your transmitting and even remotely as plural inside it nobody would say that they each interval all of four at least combinations have to occur right so there must be some working out of a distribution of these plurals over them kurds and over that the separate subjects none of which seems to me can the to be a matter of plain on its face language and as soon as you get out of the plain language everything else in the optional no your honor there are passages the talk about particular communications from the remotes to the hub that the remotes do in particular instances and it's not discretionary i can take the court through that i see that i'm in my r s there are three separate reasons that the court should reverse the judgment first the prior art anticipates because all of the elements are met even if having the remote transmitted each cycle is mandatory and the reason for so i don't think that there was any dispute that the only difference between the nine prior i read is if there's no dispute that if there is if your right about the claim construction of this point the thing be a guess what i'm getting at is i don't see anything in the claim of the specification that makes it mandatory that a remote turn on your in any particular communication will oh that's absolutely right just right now there's nothing in is quote as in with most communication systems if there's no data to send by any of the remotes then the remote wouldn't request data and that would be one of the states of the system and that's exactly what we think that this claim goes to and this invention goes to the invention is absolutely agnostic as to whether or not the remotes in fact have information to transmit they don't care this is about a wife by networking patent setting up ways for laptops and other divide on stimuli which of those unless the in its meaning by all of the rest but i mean it seems to me for the last five minutes at least i've been trying to get you to talk about the claim language and you're talking about having it well let me talk directly about it because the claim language that they refer to basically every room though has to transmit and receive frames every interval period well and just more i don't think that you can reconcile that either with the language that appears later in the flame or with every single specification where remotes are not transmitting and in fact there are claims that expressly cover that set of circumstances there are a bunch of claims here that talk about transmission opportunities as opposed to transmitting and receiving which is what this claim does and so certainly all of those environments that your disclosing which allow for non transmission during certain intervals by certain remote are actually covered by other claims of the status of question  just more i think that all of the claims go to transmission opportune but what if that were true i mean isn't it a basic tenant of statutory and therefore claim construction that's trying to protect and claim construction that if different words are used in different sections of the same document we should presume that those different words words were intentional and throughout there are a number of claims here that instead of saying each of which tra and receive they say to and mission opportunity was eight hundred seventeen transmission opportunities identically substituted so in some cases you have transmission opportunity and other spaces you say the remotes transmit and receive frame  seems like a pretty clear distinction in the choice of language so judge moore i think this is a situation akin to world class technologies where you know the presumption of different doesn't and if i were transmission opportunities and claimed twenty one so he said every single claim uses the term trends which i didn't say that judgment what i was saying was that every single claim uses words that get the same idea as transmission opportunities and w to trying to get to is to say if you look at line sixty of column fifty it says the intervals being one when the hub is allowed to transmit frames to the remote and when the remotes are allowed to transmit frame to the ha and that's the language of permissiveness know that the language of defining the time interval and that's what's being done in that section that limitation sure jordan anything that you need to know you need to know when you are allowed to transmit something and when you are not allowed to transmit something and that is what that particular element goes to the pre determined of all intervals and that's explaining the nature of the pre determined of all intervals from this time to this time you're allowed to transmit and recei just more i agree that that's what the purpose of of that language is is to have an interval in which the remotes know that they can transmit but that gets the idea that this is when you are allowed to transmit doesn't mean that you have to transmit and if the thought was well there must be some transmission from a by mode or every remote of course their position is that they don't need to be one remote a random remote to get a pen remote it might be the first time like the time when they don't know they don't care why and you can only know that in french after the fact but if you if anyone these claims much less all of them except for claims seventeen were making it mandatory that at least one  transmit and receive so focus on the construction resistor core because that's what's on appeal and john the real is the construction they're advocating so tell me why the district court construction is wrong what for starters is a district court construction was right you'd expect to find at least one embodiment in the patent in which it was mandatory that all the remote actually transmit and there's not a single embodiment that discloses that they were not about the office what about the control frame  transmission opportunities those words don't appear in every single claim but every single embodiment talks about transmission opportunities that's what the intervals are because of the way this whole thing works is by assigning different area of business i asked you the question i think in must speak each cycle and the reason that i say that is because we would expect them so you wouldn't expect in the argument to be one that wired something they're describing one from one or more of the remote or all of the remotes you would think that there would be something here that would that the remote must at least send the control frame and they don't they don't talk that way they talk about it being permissive you may use your opportunity you may believe your opportunity entirely on use or you mason the control frame as opposed to saying you made you if you don't have anything to transmit then you must transmit a control frame and you would expect that there would be some discussion saying why you must submit a control frame and frankly the idea of making each of the remotes transmit a full time is really inconsistent with the core features of the invention of self which is namely not only aid to provide transmission opportunities so that they don't talk over each other but also to achieve battery power savings and if you're going to say that in the overwhelming majority of of of the claims that you're going to say that you have remotes that must transmit each cycle that means that even though they have nothing to convey even though they have no substantive information invades they're going to have to turn on use battery power waste better power in order just in a control and so i think for the point the point you made earlier was that at most this language is ambiguous it's certainly not clear when you read the language that that everyone is pointing to when the hubs and the remotes transmit and receive francis that is mandatory as opposed to being permissive there's every reason to read it as being permissive when you look at the language of allowance further in the same claim and you look at the specifications really large would be the would you point about in which at every in every cycle every remote sensing something whether it's a control frame or data transmit information or of selecting for whatever reason to transmit a control frame versus having a system in which the hub makes it mandatory or claims to make it mandatory in order to be a french system for every the controls absolutely just runs i'm not here saying that it would totally defeat the battery saving purposes i'm just saying that it's somewhat anomalous and you have what is a best ambiguous language to read it is being mandatory not only in light of the fact that every single reference to this in the specification refers to opportunities but also when you look at the purpose of the invention which is that very same there's no question that that's going to be wasting battery power can i when  when you have a situation were all of the remotes say eleven not to elect opportunity not to transmit wires or a communication cycle to begin with it's an communication cycle doesn't that imply that there's going to be an inbound information judgment or no i think that what it implies is that there's going to be an opportunity for him down and the inbound information that every single one of the remotes will have the opportunity to transmit and it's just like you might imagine having a  classroom where every student in the class is given five minutes to be able to ask a question and that will be the cycle and have been the students in their allotted opportunity don't have a question to ask so they don't ask one so their time passes the next person's time passes and maybe none of them have a question and then you go around the cycle again so i think it's the opportunities that make it a cycle it's the intervals whether or not the remote you and i have been there with the intention and we call that a communication cycle respond then why would we call that a communication cycle well just a judgment of maybe we're analogy start to break down in that the purpose of this is to provide opportunities for devices in a why fine network to be able to talk to each other and not talk over each other and that presupposes that they actually have data to transmit and so the point of having the cycle is to have a predictable anticipated opportunity for the device to be able to transmit whether it has no information then it's not surprising that it wouldn't actually transmit anything but that doesn't mean that you didn't have the cycle even if it didn't have information that it didn't have to convey so this is i mean so this language i guess to me would be something like a phrase that said the trial had serious in which the prosecution and the defendants put on the cross examine witnesses that would perfectly well cover a situation in which no defendant chooses to put on witness absolutely just around there but that's that's right there is line sixteen it says each remote in the group request c g x ofi allocation from of when that remote becomes active for enters the communication space of the hub so if there is a remote to communicate with then yes for judge reign is a question there is a morning i'm checking in you only have to do that once i want to i want to the allocation you're not asking for an allocation in everybody's cycles i think that's a dumb i think that's actually what this is saying what what what what do that the first time around or the point is for each communication cycle there has to be a t x o p allocation request if it just happened the first time it wouldn't work because how would the hub now to allocate time to that remote and subsequent communication cycles so it's kind of i'm sorry or kill it signs of but there's no teaching of that in this particular passage of time but besides that that's not the only example we go to come twenty three and we go to line twelve it says the ending for a number field when eighty is used in frames one fifty two some promote sixty six one hundred sixty four to acknowledge a successful reception of the continuous contiguous block of sequence friends from the hub sixty four so in the information frame and so now this response is sent by the remote so that is mandatory that is not permissive finally as far as what the issues are on this of people the summary judgment motion below was ours and we moved for summary judgment anticipation because of emissions we got from their expert that a limitation was missing we thought that was the only one where there wasn't a question of fact which is why we've only moved on that issue that it somehow now morphed into a concession that if we lose on  court dismissed the motion didn't have a ruling on it they filed a motion as a cross motion after the deadline for summary judgment so the court didn't reach the question of their motion for anticipation but what about their cross motion that was did that was procedure is that would be procedurally proper proper for us to ever enter judgment in their favor the best they can get out of us is a vacate and remain and because the lower court refused to entertain their summary judgment motion of motion and we certainly didn't intend to imply that somehow this was the only issue and it's a patient the only one we thought there was no fact issue and therefore proper for summary judgment based on their experts admissions which is why we moved on that so have that document i don't know that that's actually in the record your honor because frankly you don't know if it's in the appendix but it's got to be in the record below it is certainly yes it's certainly on the docket she says evidencing a dismissal for lack of time look into that and confirm certainly if it's in fact the case that it was dismissed on timeliness grounds for procedural grounds then that would mean that the proper result here would be a make a true as opposed to the entry of judgment minor standing with the only issue tomorrow a letter limited to one page single space i will look plain just to these issues possibly collaboratively if it can't be done collaboratively you can each have a one page letter and then the clarification of your letter if that would set the record straight we will make that clarification but more the reason though that we were arguing that we should be entitled to in the alternative to a re man on the inside in the issue of an on there would be fact issues as to what the prior art in fact disclosed and that's the reason that we're arguing that in the alternative we have at least ought to be entitled to a real man if the court has further questions about the clinton struction issue that we've been talking