intellectual ventures is defined in the specifications i would like to see the thing i'm just trying to figure out what the issue is really i'm not landing a place is the difference between your view and what the district court decided was he seemed to say there were two separate things going on it's the application information and not the knowledge of the type of the application and then information from the patient any sort of seem to said it was those with two different st layers work they don't actually exist in the real world they are an abstraction and it's a way that computer scientists discussed software layers so when you look on your computer and you see an image what you're seeing is application data which is being it in wireless systems there's something down at the bottom of the of the stack called the max layer and that is responsible for sending out packets over the airwaves it's only concerned about making sure that the packets get where they need to go and by design the mac layer has no information about layer seven it's a bit like if you write a letter personal letter and you put it in an envelope and in the senate and you put it in a fed ex package and it goes to the recipient the mailman doesn't have to know anything about the contents of the and flow that only the mailman only needs to know what the routing information is on the cover and that's a tremendous advantage and that provides what's called layer isolation the software will what and is that information used is the whole purpose of that information so that that the map clear they can determine what down with it's necessary right in the mac layer sole job and yes in the ordinary in the ordinary of yesterday the packets could have all types of different information in it and the mac layer doesn't know anything about it its sole job is to deliver the message has no idea it makes no discrimination it's not aware of what the packet contents are and therefore it doesn't do anything special now what happened as a voice over ip which puts voice packets into traditional five people packets and the internet converged what happened is the telecommunications industry realized that you could put both the voice packets and the internet packets together put them in the same pipe and send them out over the airways that's a tremendous advantage because it allows you to stuff all these packets together and put them in the same same  ucket for say pipe as they say the problem is voice packets have to arrive on time every twenty milliseconds or you're going to you're going to have poor call quality the other eighty milliseconds there might not be doing anything but on the twentieth millisecond the packet has to be there internet packets are different they all have to arrive but they don't even actually have to arrive in a work or they can come out of order and then be put in order at the recipient so you have different quality of service requirements the voice packets must arrive on time the traditional internet packets not so important so what they did what the invention is about is saying that the mac where which normally would have no idea what kind of packet it's dealing with the mac layer is now where it's not aware in the sense of artificial intelligence it's a construct but it's aware that some information when it's making the decisions about what packets to send went over the airwaves it has some information about what's happening here at the application layer and it can therefore discriminate among packets and make the system work fish away from now the application where resource allocator is a tool it's described in the first sentence of the abstract and the first sentence of the specification when it's defined there as an application where resource allocator where the resource allocator allocates bandwidth resource based on an application tough oh i'm suddenly in from it's in the it's in the abstract it's the first sentence of the information to identify application type but packet headers do can and i'm so lucky and so so i it's like it's morphed when when he articulated the construction you have a problem with the words in the construction zachariah and that was a thing that sort of surprised me because his construction on its face didn't seem problematic it wasn't till the effectively modified it or narrowed it in the application busy to motion to strike and so for me what it came down to was is the district court right because despite what he says the construction is in his application he has clearly ruled out the possibility that the information about application type can come from layer three or four and that that is sufficient for then do its functionality at the mac layer appropriately it doesn't have to actually pull anything from seven itself and so that's it seems to me at the heart of where if he erred he erred was in sa coming from three or four is enough about right because that is do i stand it right that is correct your honor we don't believe that the words of the construction that we've proposed which we think are correct are much different from the actual words that were used by the defendants just for their construction what was going on here and it's a bit of a problem in the district courts now is if an infringer watch to argue not infringement but doesn't have a great argument based on the literal wording of the claim of course you look to the prosecution history to see if there's some way that you can you can shift the construction this case was a tough one for the defense because it was nothing they could point to in the prosecution this tree that would get them all the way to not infringement so they were doing what i'm going to call it over not only the claim to claim the last twenty nineteen of all of these findings would be inappropriate under this construction none of them would have any meaning and they would be sort of mooted entirely as though they don't exist i agree with you completely on examiner who allowed all these claims is the same examiner the participated in this prosecution so obviously that examiner did not have the impression that you had given away all of that or he wouldn't have not allowed  have all these deep and he claims that scratch our position and the last page of the relevant page of the prosecution history which is it a thirty five hundred had just before the notice of allowance has repeated references to ip packet headers still i just want to know what the district court did here and you're right and i understand i think one if you could articulate but i think i understand the difference between his original construction and the one on the consideration one articulate what the difference  and to tell us what led him there which i assume is what you think is a misreading of the prosecution history but if you could just articulate it that an english would be helpful yes i think i think that the the the resource allocator allocates the resources that's all the claim one requires claim two says what does the resource allocator rely on and the answer is packet headers or a direction unification from the software layer so there's two basic types of environments and one body meant there's a layer seven communication all the way up here that goes all the way down the layer two and the other and that direct communication between seven and that there was baked into his original construction to the original and what the patent does is it says you're talking about the second that construction not well it's it's very hard here because he didn't give us much of an opinion on this but the bottom line is that there are two basic ways to get the information to the resource allocator a direct communication from layer seven and effectively an indirect communication where the allocator infers what's happening at the application layer based on reading say layer three or four other packet had both of them get the information to the allocator both of them are covered extensively in the patent it appears so what the district court did is limit us to the direct from layer seven embodiment of reading out of preferred and body meant that's clearly claimed and he did so really based soley on footnotes seven  is he found this going over in the prosecution history you've got nothing you don't have a lot to go on for that's what you think he did and here are the pages they cite and why they don't apply so one take that structure certainly your honor they say they cited to the district thirty four ninety nine and thirty five hundred of the appendix that's correct that is correct and at thirty four ninety nine the defendant said well we've got to read into the claim language information about applications a layer seven and we said but we don't have a problem with that you're going to use the information about affleck ations that way or seven but we said it it's not just directly receiving the information the allocator has the information where it gets it from is irrelevant on page thirty five hundred the next page there are repeated references to column eighteen column fifty three in column sixty three of the patent in fact in four hundred thirty five hundred dozen that's the paragraph the relevant paragraph begin with in the present invention yes and then it goes through and bit the key pages thirty five hundred and it says in the president vention words of hunger many a patentee but here actually explained clearly what is met in the president vention scarce wireless band with can be dynamically allocated using the president vention to provide etc and then if you look down a little bit further it says differentiation and that's differentiating between two types of packets is done on the header a payload that's a layer three there is no ambiguity about it the next thing that happened is a notice of wiles i also want to refer to the courts optimize construction but i'm almost out of time at the court should have been looking at optimization of a software application which is something that experts understand and could have provided a infringement opinion on the court did not look at the specification he simply concluded what does that mean for the civil case in the clear of the ones that tells us what the thank you judge procedure so we first looked at one three five nine seven column twelve line fifty  performance characteristic is most important to a particular user with optimal service in whatever manner the user defined you're exactly right just for us that that sentence appears after the pattern is explains explained that things change in the network traffic patterns change demands of users change and so this pattern is saying that really to look at optimization you have to look at how this user has defined what it determines to be optimal and so this isn't this this is an end user concept the claim does for site and user this dark green middle layer is the mac layer that's this application where mac layer in the patent and in between is a yellow layer that's layer for the transport layer and then there's a network layer that's shaded in lighter green so traditionally the idea was and i think everyone agrees that these layers were supposed to be isolated from one another the mac layer was not aware of  much communicate with for example the yellow layer layer for the transport layer it was not aware of they could not communicate with the application layer so i didn't think that this was this invention was so much about couldn't communicate first off it could have easily based on technology it was more about it wasn't the way it was done you didn't use application information to allocate bandwidth you know every it makes total sense the application permission is useful if i'm sending a voice message pursuant to get there quickly if it's anything it's great she and i need to be accurate so i've got to differentiate in the band with in terms of the type of file i'm sending because different parameters matter with regard to this type of file that's what nine is that there's two aspects of application where the first is knowledge of the application and judge moore you've pointed that out and what the patent explains that you use the knowledge of the application for is a way to  segregate different packets to sort the packets based on their application type what just knowing the application type doesn't tell you what are the particular  us requirements that are supposed to be used for this application type and the patent tells us where we get those if you look at column four lines ten to eleven which is a reproduction of the abstract it's also if you enter the abstract it  that the priority class information comes in an application layer communication in a communication from layer seven to the mac layer so it it's correct that originally for what might lie number ten and eleven really just above that it's explained that there's an application for medication it comes from the application it goes to the mac layer this application communication includes a priority class of the ip flow so that's more than just knowing i don't know this particular transfer of information there are two ways that you can get layer seven information it can be a direct communication from the application which is as described here or the mac layer can read the packet header in the layer setting the back layer can read layer seven packet headers it can read layer four packet headers they can read layer three years through any of those mechanisms it can determine the application type that is true but the only places that's described i n this pattern of actually getting the ip q o s requirements which is beyond just the application type is getting it from reading layer seven information well that's what ok that is but that seems to be what the district was you'd have segregation between the layers and we know that the patents idea was i'm going to break that model i'm going to let them i'm going to let the mac layer be aware of and communicate with higher layers and we see that column seventy six of the patent line thirty one i just gushing of the fact that because in this invention the mac layer communicates with higher layers communicates with layer three letter four and layer seven for that reason it's application aware because it's communicating with layer seven it's transport to where because it's communicating with layer four and it's network aware because it's communicating with layer three those are three different things application aware is different than transport aware and the pattern tells us the differences which layer are you communicating with if you're communicating with layer four that makes you transport where we see at  the appendix on thirty five fifteen the applicant was facing and enablement rejection and it said to the patent office that a person of ordinary skill me art would understand that quote application aware refers to the resource allocators knowledge of information from application layer seven so you're saying and this is what i'm trying i'm just trying to understand what the district court was say i think the district court was saying that knowledge of the application type of what kind of an application this can come from three four or seven but the second requirement using information to allocate band with coming from boxes one with information it was the patient tight and the other was information and i think the discussion of bandwidth starting with the first sentence of the abstract talks about application awareness with the resource allocated badmouth me source to an application based application type and that's so i think everything i read in the spec that talks about allocating band with in connection with the application time which is one box of the district court right that's that's the way the claim was originally written to allocate about the application of where allocator allocated and with based on application type that claim was amended the based on the application type became part of applicants argument about what the term application aware itself meant and what they did is they then separately recited in the claim ok so let's look at the you're talking about the amendment that twenty of your brief it's probably most helpful if you want to see the original plan and you've looked at thirty five twenty seven ok so on thirty five twenty seven you can see that it was claimed that the application aware resource allocated or allocated bandwidth resources according to these are based on the application type that was amended it was amended to see what you've see before you in the briefing as the claim that's being asserted now it says that the application aware resource allocator allocates resources based on the ip kewl west requirements of the application just to be clear where you say claim one was modified why wouldn't we assume it was simply brought in as opposed to eliminating the possibility that the resource allocator can do it on the application to share if well because the the applicant has always maintained that part of the definition of application aware is using information from player seven originally it tried to use in addition to that doing talk about using the player for layer three information those are talking about segregating packets so you can use that information to determine an application type to put a packet into this bucket or that bucket but what i don't have yet i you need to get the appropriate g o s mechanism parameters when we get it you've got to focus me in maturing twenty two so what are you referring to where the lot so i believe i believe the judge referred to around one thirty about using layer seven information to do your band with allocation the discussions about layer three and four are used to simply identify the application type so that you can characterize the packet and put it into one bucket or another but you still need the second stuff which is what the applicant was talking about on thirty four ninety nine there's two steps you have to figure out what the application type is i can put it into my bucket based on that but beyond that you also have to use information from layer twenty that says that many different priority classes are possible depending on the q o s requirements of the end users so depending on their us requirements right and the characterization is based on packet header information to determine i'm sorry i'm reading line twenty two on column fifty and the certain starts that that happens during characterization not used to determine that he will last requirements that's what we're talking about here right their face pretty clearly i guess just just closing out the layer of the column fifty discussion there what i see is a characterization of packets i don't i don't necessarily i don't see using layer three later or later for it to determine the quality of service itself that if logically if you look at the applicant's statements and prosecution history logically is that the applicant claimed an application aware resource allocator that allocated based on application type and the a med reference was used to reject that and it came back with multiple arguments one of one of which was a med doesn't show the application type but a separate argument was that and that doesn't show allocating band with based on information that comes from lawyers seven if you look at thirty five eighteen that argument is made they say applicants invention claims a resource allocator that is application aware i e it uses information about an application by looking above layer four of the o s i model and everyone agrees here that above layer four of the oversight model in this patent is layer seven so the applicant is saying application aware that term id means it uses information about an application and it doesn't just use information about an application coming from anywhere it does it in a specific way using information about an application by looking above layer for the o s i model the context of why this limitation is put in makes complete sense when you look at what they were trying to get over from the prior art perspective the prior art showed application type there was a dispute about that of course but the argument was made even if it shows application type it doesn't show that your using information from layer seven to make your bandwidth allocation decisions that was made with respect to the a med reference it was made again at thirty four thirty four ninety nine the hollyhock are reference ali akbar was another reference that did its allocation based on the type of service or the type of allocation that was being analyzed but what it didn't show was doing that based on information that came from layer seven or information at layer seven if you if you look at the applicants language at thirty four ninety nine and you consider the construction that ivy is proposing here they're saying that if you look look at the applicants and the athletes language which is where the court's construction came from the resource allocator must be able to take into account when allocating then with information about applications at o s i application layer seven there are at their whole answer to this is that that's just modifying applications it's not modifying where the information comes from but everyone in this case agrees that all applications are at layer seven there is no such thing as a layer three or a layer for application so when you read the applicant statement to say that you have to not only know about the type of application but you have to be able to take into account information about applications at layer seven if that just simply means you just have to take into account information about applications that are at layer seven that would make no sense every application is at layer seven what the prior art didn't show was taking into account information that came from layer seven that you either read a packet header from at layer seven or you had a communication from the application from layer seven that wasn't there in the prior art they argued that multiple times to justify the meaning of application where the patent itself distinguishes application aware from transport based on where you're communicating if it's layer for your transport aware if it's layer seven your application aware that's part of the ordinary meaning of application aware always has been in this patent and in the prosecution they stress that ok we're waived thank you for your thank you thank you for your time thank you are we submit it with respect to the application where term that the stress of occasion the claim language the prosecution history including page thirty five hundred of the appendix all show that the applicant claimed embraced the full scope of the application awareness and that the information necessary can come from any source not the does not have to come directly from layer seven as the district court apparently concluded on the optimized term  counsel point it's a column twelve which says that it is best therefore perhaps it is best to understand us as a continuum defined by what network performance characteristics is most important for so the answer the question is can we prove infringement if that were the construction the answer is yes that's an environment in the past our larger point here is that the optimized term here is optimizing for the end user g o s of a software application we provided an expert declaration which discussed how to ask that term is used by those doing the art and said this was not indefinite the district court found it indefinite without referring to the expert declaration or leave it there underlying issue of fact for trial furthermore if you read optimize more in the context of customizing your customizing this system for the prioritized voice over internet packets that is optimiz the system to those are still in the are that's what our experts would have testified to at trial if you were permitted to do so furthermore if this is a means plus function claim and the court should have looked at the specification for the things in the specification which could be tied to the optimized term and having done that and then we have the means and values of the claim so even if optimized generally might be too broad a term when it's embedded in a means plus function claim like this we look