opportunity to challenge the district court's construction of women to action for several reasons first the district court actually changed its construction on remand when applying that construction the facts of the case so we now are here under a new construction we did appeal the embedded issue of note in this court determined that no it is a geographic location so the district court should have implemented that invented change on remand but it shows not to do so the last point relates to this court jurisdiction the parties are not responsible for nor can they bring issues to this court where they believe it doesn't actually affect the outcome of the case that's the jain decision here we had  infinite infringement arguments based upon the original construction we provided those in response to summary judgment and and when the party stipulated on their heels on erroneous construction  we can appeal a faulty construction in fact we did so with the embedded node limitation when we look at the aspect of the construction that was most problematic it was the nodes p j p k section which the district court decided meant to include all most characteristic notes and dropping all intermediate notes if the district court implemented this court's direction on remand it would have fixed that issue and the parties would have been able to move on in fact did not do so it stuck with its original construction and in fact adopted a more narrow construction in which in order to show infringement dr adolph had to show not only that only and all the most characteristic notes be chosen but that all intermediate notes be dropped and that happened on the first time on remand when the court actually applied its construction under step two that's when it became clear that it had actually construed its construction in a manner that was more narrowing so there is no waiver issue and in any event since there's a revised construction here in the court failed to include no we are here properly before the court with a right issue based upon a new construction plazas not all of them with respect to the plain ordinary meaning your honour's we believe the plane in ordinary meaning applies here for several reasons how can we possibly have played an ordinary meaning for this clause i mean it contains a meaning to use more common language that jurors can approach that's different than this concept of claim construction where there's there's an ambiguity or an issue with the claim that requires that you do something in light of the that i mean wouldn't we reverse the district for not considering this and not setting the boundaries of the power and if this language isn't clear your honor this gets to going to talk about why that construction's role certainly honor to the point about plain ordinary meaning my understanding from the sports dress prudence is it can modify and simplify the language without deciding that there's lexicography in december and that's the plain ordinary meaning and there can be change issues those are the primary examples so another is prosecution history if there is a representation made in an argument or otherwise to obtain certain claims then a party can't recover what it has given up but those are not the situation here you honor we have to look at the specification the dependent claims in the entire intrinsic record and in this particular situation where it's not appropriate to limit the claims the way that the district court did in light of the intrinsic record and that's the claim construction issue that we're putting before the court if it's a limitation issue rather than a clarification issue and i think that's the line that where we're trying to walk between plain and ordinary meaning that is helpful to the finder of fact who's dealing with a complex technology admittedly in that let's assume i disagree with with you and i think this needs to be district court did you have to convince me the district court is incorrect which war with the construction it imported limitations that region wide the limitation relating to note and the limitations relating to the contiguous relationship between sections those of the two erroneous constructions that we are appealing both are embedded within the select and clause with respect to no t j p what language in that construction do you think is wrong the language in the construction that is wrong is all the nodes that are most characteristic of a road segment and dropping all the intermediate nodes of that segment where by your honor we would define it as selecting at least two nodes that define a continuous road segment travelled by the mobile unit so so two geographical locations right the court has already said that no they're geographic locations that's all a claim one requires when we look at the dependent claims they add additional limitations section data and in addition proposed claim construction i don't see it maybe you can help me hell that would create a question of fact of the infringement point the tom tom device as i understand it we're only talking about it losing the signal when it comes to maybe a dead zone or something like that or how it starts taking a signal after ten identical free things like when you stop at a traffic light and you haven't moved and so i don't know h that constitutes salek it's just what this claim require so even if i agree with you on everything you say about nodes it can work continuously everything else the way the queues device operates it's not clear to me how you have any case le for infringement even under the construction you would propose that we adopt your honor the device initially captures g p s location position that's travelled the same state of that section one of the claim from there there is a decision that is made about which of those nos should be selected for inclusion in section data with respect to tom tom's activity on the device and reflect in the cayman data format file tom tom will not select for inclusion in section data certain data points what it doesn't understand whether those data points are both accurate that's the example with acquiring two initial data points that the device knows is accurate in order to start selecting data for inclusion in the section data file that's one example another is if you're sitting at a stop light using a tom tom device and you're sitting there for more than ten data acquisition point the device continues to keep that location and log that location information under step one but it's not included in section data because it's not characteristic grade it doesn't help us understand the route network and where the cars traveling it's a way to compress the data and use the useable and useful information and exclude or not select data that the device does not find useful once the car starts moving again and it has at least two good signals then it will decide to continue to import that information into the section data that is a selection activity it is it is an activity that's consistent understand how that what you're describing is selecting data notes which define contiguous sections it sounds like they're selecting data if they're selected at all rather than just ignoring  data but that doesn't have anything to do with they don't know which defined contiguous sections your honor when you're talking about continuous continuous sections are you talking about within a section or between two different sect but it is not selected for incorporation in the section data file that's ultimately stored to reflect the route network that is that that is the nonselective or drop in activity because we have to remember we have two streams of data we have the data that's acquired from the satellite that happens no matter what it's collected even if the data is bad and tom tom's information tells us that they actually provided accuracy reading with each and every satellite reading that's recorded that's travel distance data not all of that information is selected for long term storage in the section data file and i've given your honor examples we can talk about in the context of morning may please the court bryant pandy on behalf of the apple you tom tom frank terms of the questions your honor raised want to make two points because these themes cut across the appeal first contiguous sections are not continuous points second failing to record data does not equal selecting data from the travel distance data as the claim requires with that in mind the district court correctly found that doctor aid of infringement case disregard of the very specific requirements of the type of data that must be selected and how that the ada is selected so the judgment should be affirmed for three reasons what which i explained in more detail but i'll summarize right now trade off converts the claimed contiguous sections into continuous points if contiguous sections means multiple connected sections not just the points within a single section there is no infringement because dr adolf's infringement cases in part based on situations where there are breaks in data recording second the claim requires as a matter of law that two distinct steps are performed first you record a series of notes or points of travel distance data that represent your travel sections second you must select from that travel since data the starting and ending point of each section section data and claim requires an affirmative selection of a starting point and an ending point of each section and third there's no dispute about how the tom tom navigation device operates the device records starting point and then it records change in position until the trip ends or its signal is lost now the only evidence that dr aof presented to the district court related to mishaps were the tom tom device failed to record data section let me address first that the contiguous sections arguments contiguous sections and continuous points are two different concepts contiguous refers to multiple sections sharing boundaries my contiguous with my right hand right now continuous refers to one set of points that form a straight line contiguous describes the relationship between the sections so the claim requires top to us actions not continuous points for three reasons first looking at the plain language of the claim itself the claim require selecting from the travel distance data no that's p j and p j which define contiguous section k the claim requires contiguous sections in the plural not a single section not one continuous section secondly the prosecution history confirms this understanding of the claim dr  distinguish is invention over the prior art reference by saying that quote additional sections are stored in a contiguous fashion in order to store the route connecting the initial starting point of the vehicle and thirteen he said and it's that a fourteen thirteen he said that quote by definition if there was a break in the location reading such as if the g p s signals lost in a tunnel or otherwise due to a loss of satellite coverage the notes before and after the break in the travel distance data readings would not be contiguous you know so it rests couple of comments miss peyton made about how the how the tom tom device operates the parties are in agreement about how the device operates the device records the vehicle starting points and then it records its change in position every one second for five seconds later now the three instances that the doctor ate up presented the district court rest and says where the device mailed to record data but a mishap failing to record it is not creating travel distance data then so where the tunnel discussion  you suggest that they waive the claim term that was not subject to the stipulation below i have the stipulation here it's on sixteen eighty four they did not stipulate to not infringement on the basis of the selecting term that was not part understood that they did not agree that they that they were challenging the construction of nodes but not the broader selecting staff so that's our part of if you like why would they challenge on appeal the selecting step when the selecting step for no basis of the stipulated summary judgment if not an infringement right and i'd agree with that my how could they have waived it and how could they have waived their right to appeal now when it actually affects the outcome something that they didn't bring before when it had no impact on the outcome right so all i understood that by not bringing it forward in the first instance they were not challenging that instruction they disagreed with you really they waived it at the district court not on the first pill right that they waved i saw you read the advisory opinion and we're not going to do it and i think you would agree that if we said that they'd have the right to preserve that objection yes i would say that i would agree with that yes so it seems like your position is they have to ask for an advisory opinion  infringement describing this to feel aisha but express the reserved their right to appeal other claim constructions that aren't discussed in the stipulation right now how could this have in your mind represented an understanding and p j and so the only points they get promoted to section eight are the two points p j and p k in us district court sent footnote eight of the opinion dropping does not necessarily mean that you're deleting the points that are not miked and rather what it means is that those points are not been chosen to be promoted to section or they can remain travel distance they know they could they could to draw things a little imprecise but what i think you're saying is selecting implicitly it's picking out the couldn't that as a factual question be dropping the intermediate notes in that segment because it and in your honors in that example what you're still you're still recording the points you're traveling so if the device that stops records ten zeroes then the recording shuts off so that the zero zero never deleted from the device then the device stops recording state it's not what the claim requires when you stop recording why isn't that dropping the intermediate nodes of that segment you stop recording i don't understand from a factual standpoint why it wouldn't be a question for the jury to decide whether stopping to record because you're stationary is in fact flopping intermediate method segments even if it are no more zeroes is it's what it's doing saving space in effect that that it would be continuous zeros and tell that one or whatever that it would be i would guess it would be iran is th happening though is you're just you're simply recording where the vehicles traveled you never making an affirmative selection of points p j p k u recording i travel i had a red light record zeros i start recording again so there's no there's no step of the claim retake your whole body of data and then you extract the d j p k points for each section this is just simply it records until it realizes nothing's happening then a device turns back on again and that's and do you record a timed i ten zeroes every five seconds you're there for fifty seconds ok ok so then the next ten seconds it's not recording anything that you're stationary correct and you start moving it does not immediately turn back on correct it could be up to five seconds before it takes the next recorded blip to determine where you are so for five seconds probably doesn't take me longer than that to get across most intersections it's not recording it is not recording correct it then picks me up at the five second interval  latent period where there was in a one to four five seconds where there was nothing but at the point is what the device of this is just straight data recording which is which existed for a long time outs the patent itself  action well it is a continuous such and so what section of a to the point here is to record the essence of the route that you've traveled so all what you're doing here is of course p j and p k have to be connected because otherwise that would not be a travel section but then read in conjunction with the next sentence and how he distinguishes invention over the prior art is additional sections are stored in a contiguous fashion because in order to store a route and acting the initial starting point of the vehicle to the final destination so there are two requirements internally if you j p chaos to be a connected section but to recreate where you traveled each of the sections and have to connect together so you thank you your honor i think it's first important to make some of the facts clear townhomes devices are logging g p s locations currently every second used to be every five seconds it's it's since change it every second and storing it as travel distance data that happens even if the data is bad it does not stop the through the stop light or in a tunnel it continue and it just records zero zero zero zero for accuracy from there there is a selection activity that occurs there is a choice that is made about what data should be stored for the long term and sometimes the data is not stored as in the case of a stoplight as in the case where we don't have two initial good data points that is a selecting activity it's consistent with the claim it's consistent with the prosecution history whether we call it dropping meaning not selecting for long term inclusion or we call it something closer to selecting the result is the same they have data and they choose not to store it for the long term in the section data and thus the section data file but is that an intermediate no that's being dropped i mean if you're sitting still we know those are points from one section k is an odd distance travel between if you are stationary at a stop light and you are not recording data you dropping something dropping data but are you dropping intermediate no of a segment because you haven't moved you are your honor because the segment can beat a find a number of different ways j could be your starting point when you leave your driveway in the morning and you go to work you the device chooses not to record data when you're sitting at a stoplight for a period of time  continuity within a section right and we talk about two fifty two the prosecution history where dr eight off talks about the fact that the points p j in p k are connected to each other right there within the same section in the p k and then we have step three that talks about storing additional sections updating the existing section data file so the pattern in visions in multi step process in which we continue to build and route network we create a section we store it in the section data file we create another section we store it in the section it is my words i'm sorry your honor the next one is contiguous to the prior one it can be but it doesn't have to be right so here's an example of an operating system where tom tom is going around a curve a cloverleaf us that's a situation where you may not have intermediate know but as described in column ten those are very characteristic notes that we're looking at because they show and change a direction a significant change a direction as described in column ten at least some of the sections include more than two no  but that doesn't mean that all of them include more than two so we can have situations in which p j p k are the starting out in the ending note as we're going around a turn and the next section arises as we continue with our chang direction but the operative point here is when we talk about the infringement analysis we have to understand as long as the device operates at some times under conditions that meet claim one tom tom in front of us what the sections are contiguous to each other so even if this court finds that continuity not only exist within each section p j p k but also between sections there are still operating conditions under which tom tom infringe