that requires reversal the specification explicitly teaches that identifying and recognizing a character can be less than unequivocal or specifically is that the construction that your client proposed it right off the mark meant it's not at the initial markman your honor the proposed playing meeting at and at that time abbie agreed that the ordinary meaning that dyke one the ordinary meaning of course in in a place in patents is the ordinary meaning as understood by a person of skill in the art here this is one of the ordinary meanings of identify it's its but the you must look to the patents are sufficient to determine the ordinary meaning so if you were to say but you are that instance of that's your argument then that's a claim construction argument that should have been raised in the first instance in the market proceeding right if you're saying no it's not ordinary meeting in general it's ordinary meaning in light of the specification and therefore going to include the ambiguous stuff that should have been raised at the market and something that was conclusively determine at the market but it wasn't you wish that with ordinary meaning this is one of the ordinary meanings what we're seeking is one of the ordinary meanings pros at the time of the market and it was common ground between the parties that in a dent to fight character could be end bigamous that's the introduction to abby's claim construction brief an eight five three seven the dispute arose about which ordinary meaning it was at some rejects how was the jury instructed what was the jury and where do we find the  the jury instructions that appears on a thirty four fifty two and it says the terms identifying and recognizing this is line five each has the same plain and ordinary meaning quote to establish the identity of ok so how does that preclude you judge allowed you to argue for your interpretation at the trial this is a question that i brought yes your honor but that but that can't save the air or under oath to micro that was the case as well the parties argued their different constructions to the jury but this court held it's a marksman question it's a question for the judge that this scope dispute arose at summary judgment when photos parties brief claim construction struction allow the parties to brief what they thought the ordinary meaning of it was and it eight fourteen thirty six we asked for identifying parin finally or tentatively or in the up to an alternative to judge pro seem to me that the instruction he gave precluded you from are you in that tentative or coronary identification would qualify and indeed you did argue that to the jury in the jury rejected your honor to establish the identity of to establish the identity of suggest a definitive determination that is inconsistent with the specification that's the definition that abbe requested that's the definition they got the error that the judge made because it's a question about the scope of the meaning of the clean term identify both do you understand my point it's it's a close question whether we should regard that as a claim construction question whether you know a judgment we five judge change in claim construction argument saying no you can't that's inconsistent with the with the language of the specification this is the scope issue it's a claim which issue that under markman the jury would have benefited instead once one everyone agreed to go with plain meaning that's now what that means is you don't know the patent doesn't really matter anymore now it's just it's just the jurors understanding their own experience charles understanding of the word identified that matters and so you don't necessarily have to engage in an review of the intrinsic evidence in more several dispute about the scope of the claim term a rose before trial in time for the judge to fix it here was plenty of time it was five weeks before trial this is really ultimately a jury instruction question and it was it was proposed well it that way in summary judgment which and that's why we went back to the court when the court didn't resolve it on summary judgment and just didn't give any explanation the parties had each briefed claim construction issues in the summary judgment and we said a dispute has arisen of claim construction that we need your guidance for the jury we asked for it to be construed he did we construe it and he construed incorrectly that there is no way to read claim it column twenty of this patent with without concluding th absolutely john and so therefore when in your view the other side at a late stage said no it doesn't include ambiguous identifications you're saying ok now the playing field is completely changed and  no new ones i recognise i can't take away your cause of action without resolving them i don't understand your answer that the special master recommended in productive by the the judge i don't think you could in any argument that you shouldn't  master recommendation he says we recommend all parties proceed to discovery mediation and then trial on both the first and the second group and then from that he draws out that the numbers are going to be limited to a total of four before this had all this they had all contemplated that one trial might be not be enough to resolve everything hopefully it would be hopefully have new much went to trial in its best patents that it would come out in a way that that would indeed but i've read all of your side statements and course of dealings leading up to the trial as yourself acknowledging and recognizing that there needed to be a winnowing process and the most important thing your side with you sure your side is able to get doubt when it went down yes to the extent that there were efforts to winnow down so there could be a first trial that would hopefully resolve everything so if i could just quote if you i guess what i don't know is is there or do you know of a case where the parties are trial in order to winnow down the trial further we dropped one of the nine patent but in that document dropping that patent be expressed in reserve the right to try the other  promised a second trial judge died with just a court never said there's not going to be a separate trial the discussion was sept isn't it clear that the language of the judge to take point in into in the masters the special masters report talks about a trial on both the first group and but the point was that they were going to there was going to be fact discovery on all the groups and then forced the selection of the four patents and then expert discovery and trial on those patents but your side of that recommended for  fifteen forte for the first trial judge chen if if at all that's not what the special master report says because it says trial both first and second groups followed and then the next sentence deals with the that that is at eight seven to  and that the remaining costs of actually you have which are separate independent and cover separate inventions will be dismissed with prejudice despite having been determined on the merits and then there are two there are two things past this that i would like to bring your attention to one is not going to resolve the patents that are not being tried this is not a situation like cats there was no discussion that these are representative patents and the rest of the patents are going to be judged based on these if this were a non patent case and you had four separate causes of action and the court went to trial and two of them and then entered judgment on the other two without deciding the merits that would clearly be reversible error which you where's your third my third one is on a twelve twenty two says that this judgment resolves are other patents are untried patents and that did that that they were abandoned was in the cost motion after after the trial that's the that's the first time that they but they don't say anything about us abandoning our patents or that judgment what's happened here to check is a judgment has been entered against us on one tribe that there is no precedent for that reasonable number of claims the default should be that everyone is on notice that there is going to be a rematch after a trial on those selected claims you wouldn't have to hold that as a broad principle here because those are the facts here that leading up to it the understanding was that nuance continually repeatedly reserved expressen reserved its rights that the parties in joint statements after this election said that nuance reserved its rights when you want to chose the pattens knew what said it reserves the rights if you've got a special master report to drop to five district court judge that says you might want to second trial you might want a patent cert eight patents this is what we're going to do in that circumstance however many documents you submitted jointer singularly that said we reserve our rights to a second trial would all be a room right we don't get to reserve rights that the district court has decided you know i'm going to do this case this way don't get you reserve your rights to do something other than what he's directed right perhaps but that would if that's if that's how you view this that is reversible error that is beyond the discretion of a district judge to enter understand it that way that and it and we did if we did have to preserve it we preserved it when we made the selection on a seven to seven we reserve the right to research them against abby enter lexmark and later time to secure future suit they've never they never disputed that let added the first time abby said that the other claims have been resolved with prejudice was after the judgment that's the first time this they ever argued that or said it there they can't point to a single statement a single clear statement from either the district court judge which i don't think that select for patents for trial is not such a statement or from abbey saying that the rest of the un resolved patents were going to be resolved with prejudice in pre a four to one there are other statements like this in the record this is from nuance if you do that in other words if you let us go to trial on subset of what we think are strongest patents either win or lose that will typically resolve the whole  was talking about the difference between a case management and how to manage it in the hope that it would get resolved easily versus what it could do on the merits and in a read it more than once said it couldn't resolve it would violate nuances due process rights to discovery there might be summary judgment that would resolve it one way or the other and at one place you want as lawyer said yes maybe summary judgment of non friend and be entered in that would win of the case down yes that was the hope and had we prevailed in the trial which i there were different selections ok so you went to trial on what you conceded will you agree or your strongest patterns so your thought although everybody was assuming all along that if you if you won on those patents then there would be a second trial but if you this view you know but here with what's happened here is that we have a complaint that includes a patterns judgment's been injured on patents which are in the police could this course held independent cause of clear that the district court judge was just talking about the order of trying to resolve the case and hoping so there are places where like in the very first conference in february of two thousand and ten abbott counsel proposed yes yes because of course you can't just dismiss claims and say you're done and the court says later on says i'm not to do with the district court judge did in texas but i want you come back having met conferred on a way to narrow down the claims that  side burner other patents that was the course of discussion all the way up that led to the to the magnitude of mastered special masters recommendation which doesn't say there's only going to be one trial it says we're going to have four  doesn't say the only trials that that given the course of dealing before that today you want was on no notice that it needed to come in and say well we just want to clear this isn't going to be the only trial we're going to litigate everything else and to the extent we need to do that we did do that i like to start where nuance left off and especially i want to talk about nuances understanding of its proposal in july two thousand and eleven which is what special master adopted i'm going to quote from the and ten case management hearing transcript at four seventy five seventy six and this is what nuances counsel told the judge in july two thousand and ten quote my concern is that having multiple trials could be very expensive i would think that we could have a marksman process maybe have a subsequent marking of markman process and perhaps by then do summary judgments or whatever we get to a manageable set for one trial and judge late response to a four seventy eight and what judge white tells nuances lawyer is i'm not in favor of serial trials i can tell you that that's a bad idea in july two thousand and eleven nuance formally proposes this do all mark mean single trial procedure a six six three six five and if you compare that to the special masters chart a sixty nine no i understand and we look at it as i think you can appreciate all of the various references but how do you will there's no clearer statement in this special matter where otherwise this is going to be the one and only trial and this trial is going to take care of all of the asserted and in the absence  well i think given the context of what i just discussed in what nuances counsel told the judge and then in combination with the dual markman single trial proposal and how n contradict judge white's finding that nuance got exactly what it requested and nuances counsel pointed to some statements that were made today four twenty one in four twenty two those statements were made in april two thousand three months before nuance came up with this dual markman single trial proposal and that april two thousand and ten case management conference statement nuance did proposed two trials no question about it proposes based case where it was able to choose the trials but if you go to that transcript at four thirty forty four forty one you'll see the parties in the court discussing that and judge white expressing disfavor based on some bad experiences he had earlier on in his career where the parties are short is that if you could only take care of inventor ship the rest of the case would go away he says i'm not going to do that and after that point nuance never again raises a two trial proposal  nuances counsel talked about judge white's assurances that due process will be followed those statements are that the district court would allow new ones to keep all the patents it wanted in the case up until discovery closed it would get markman on all the patents it wanted to get markman on and then when it came time for trial nuance not the court not the defendants would be able to choose the patents that were going to go to trial can i ask you that judge white somewhere in his conclusion he said considering the law and he pointed to me wants his failure to mention in its post trial motions or its notice of appeal it's potential request for a new trial why would that necessarily there be discussion by nuance about a second trial well there ought to be interest from some discussion somewhere whether it comes in the new trial or j motions or some other motion to sever or while that may be fair enough they should have been saying they should have said something sooner rather than later but the judge himself on whose opinion we're reviewing says that points out points to nuances failure to mention in the post trial motions as if he takes that as one factor demonstrating that they never intended to they really never contemplated that there would necessarily be a second trial and i'm not understanding why why that's held well it's it doesn't necessarily have to be in that motion through that vehicle but which way the saying is that if they really expected a second trial after they lost the first one i would have expected a competent counsel and there's no question nuance has an excellent counsel here that they would have alerted me some somehow for example i issued a itself maybe not but judge white was there when in july two thousand and ten when these proposals were being discussed he's the only one among us that was there and he has his primary finding it at  twenty three is based on these july two thousand and ten in july two thousand and eleven that what was going on at the at the case at that time and then i think he looks at the post the stuff leading up to trial and post trial and says that corroborating that that knew once knew all along and this is just more evidence that you once knew all along that it wasn't until eight months after final judgment is entered that nuance finally comes forward and says oh no no no we're we're ready for our side puts in their own part it's not that we're sitting down and crafting figure one together they are footnote one there they write the first paragraph of footnote one and rewrite the second paragraph of footnote one that those reservations of rights you  commented on it earlier i mean those are reflexive statements of lawyers if i were in your position i would never have your honor if if we if we fought every time somebody put in this reservation of rights language we would never get done with the district court wants us to get done when at the end of an expert report at the end of the deposition at the end of the trial everybody's always reserving rights that they don't have and if fought over that and they peered over that the district court work just never get done and so these statements appear all the time and you just can't physically respond to all of them but it cannot override well it seems the clear disallowing assertion of a million claims because he said it's all duplicative there's nothing new here and he reserves he gave them there he gave them the ability to come back and if they could show the district court judge that they judge didn't judge white didn't say it has to be duplicated that all he said was and nobody disputes that there was this claim substitution procedure local rules of the northern district of california have  a good cause exception to the local to the patent rules that allow you to amend your infringement contentions all of these vehicles where were available to do once on just a showing of good cause it wasn't even specifically  they anticipated they'd be able to assert them in the second case i understand their their their position but yes they know the rules allow them for patents fifteen claims they leave one claim or they leave eight claims in one patent on the table not going to give you any opportunity to add more that i think that's a violation of this court's case management procedures that set out in cats but here like judge judge chen mention is this is his charge to the parties was narrow this case into something that we can try and then you'll see statements from nuance's own counsel who knows they're not taking eight eight patents to the jury that that they're going to try and maximize nuances chances of success and before there's any order they've already indicated to the judge we're really not going to go to trial on it any more than three or four and so when the parties are working together this is a voluntary process judge white didn't force anything at any time everything that was done narrow their claim and they're doing this in full light of their demand that their only be a single trial here and judge white responded yes serial trials are a bad idea so everybody understands there's only going to be one trial and in that context nuance is making this four patent fifteen claim proposal there is no other way to interpret those events other than as judge white interpreted those events but even if there is a reasonable explanation otherwise that supports nuance in order to prevail in this new wants has to prove has to convince people that judge white's interpretation as historical fact on what happened on this case is clearly that's going to determine likely infringement or not infringement is going to be this new ones an identification as to whether allows ambiguity or not they think there's their position they are more than five position supported by this that probably disagree with that why when they call that to the attention of the district court judge should he say yes i better clean this up and do a market because this case is going down on this plane construction well he says he's not going to reopen the market at this point what he tells nuance is you told me plain an ordinary meeting and we are going to trial on the plane in ordinary media now if there's a dispute over a plane in the ordinary meaning please parties come to me and help me craft the jury instructions so that i can help the jury understand give them more guidance on what the plain ordinary meaning is and what he rejects is nuances attempt to put a he he told me once it's too late to do another markman and so that's what i'm asking about how to micro right i mean is that enough i mean if there's a claim construction dispute and if at least when we're looking at it later on in the day we conclude that  well and that's true if you did pay i think i mean nuanced did suggest that he just tell the jury give it or it's ordinary meeting i don't think that would've that would have been enough under oath to micro but what he did was enough under oath to micro because he provided  definition establish the identity that's the ordinary meaning of identify now nuance says that that's inconsistent with how the term is used in the specification but it's not a nuance in order to make its point that it means something different if they keep using identifying different phrases but the word identified in all of those phrases means exactly the same thing the only reason the solicitor claim construction disputes that we're supposed to read you know here this is this is there are two aspects to it there is the first question which is was judge white correct in keeping was he did he abused his discretion in keeping nuance to its ordinary meaning position and then the second question is if if he was supposed to reopen claim to say because this goes back to what judge judge change the way we interpret it was the same way you did which was like you they didn't just say plain meaning but philip says plain meaning they said identifying is a simple word that it's used every day so it wasn't just ordinary living as it's used in the art of o c r technology it's ordinary meaning to a layperson so let's judge white said you cannot go off of that but then if you say well i'll to my grandmother get abuses discretion so we're going to say should reopen the market so now we're going to look at that's an error and then you look at that part of it didn't know about but there is nothing in the specification inconsistent like i said that the word identify means exactly as judge white construed it the only reason it means something different in these phrases is nuance puts an adjective in front of identifying or it asks about identifying something different and i think that's what you have to keep in mind when you hear these constant discussions about ambiguous identification because that phrase appears nowhere in the pattern but what about his manners argument what happened here was a change in the playing field take the term and big us identification completely out of this case because what she's doing is she's taking an adjective ambiguous and removing it from character which is where it is in our statement where sometimes an identified character can be in  ambiguous from character and move it into identification all of a sudden they open up this possibility that identifying a character is really just identifying a class to which the character might belong and that's inconsistent both with the ordinary meaning of identify it's inconsistent with the construction of character that they convince the district court to adopt and it's inconsistent with the specification of the patent which says that when you've identified the class to which the character belongs you need to keep doing feature recognition until you reach the end of the processing because it's translate with your statement was in the market yes explain why that's different sometimes and identified character can be ambiguous meaning sometimes you will identify an ass and it's ambiguous in the sense that you don't know whether it's a capital s or a lowercase s and that's what an ambiguous character is and you can find the discussions character or a shape code that's output at that point which is it's an ast now we need to do some further processing whether it's capital s or lowercase s they're talking about something different what they're trying to do is  identification all of a sudden becomes what adam does which is a feature of the thing that used to feature recognition outputs eight guesses along with probabilities of the correctness of each guess and so that's when they say ambiguous identification that's what they're trying to cover they're not trying to because this is there's no analog in our system of it's an ass and then we go back and see how tall it is compared to other letters so that's why it's so important for them to shift the adjective now it strikes me that the real issue here is what do we do with open micro when there's an agreement by the parties that the initial flame construction that something has a particular mean and then he refused to do anything else and just say i'm just going to tell the jury we're not over your ex wrestling isn't the isn't the question of whether when there's an agreed claim construction and it turns out that the difference between the parties as to what that means whether the district court has to revisit it or whether he can just say well too bad you agreed to that and i'm going to give the instruction to the jury even with the ambiguity that may exist and you're both that the ordinary that this concern should be given the ordinary meaning and so they get to trial and they say well obviously we've got a disagreement on what the ordinary meaning is so he says ok help me result that's that's what it does now satisfaction is does he have to resolve that when the enforcing the local rules which is we have a schedule for these things to take place and you can't come to me two weeks before trial and all of a sudden ask me to reopen this whole this this whole mess that we should have taken care of insert the fact that let's assume the parties which often happens i mean you know people don't read obviously they didn't recognize until later on i think that's what may happen the no two might go to so the parties come back and try to get it revisited  said ordinary meeting originally departs from the plain ordinary or tries to put some kind of gloss on it then yes the district court can reject that argument because that party cannot push a claim construction cannot it can't change its claim construction in the middle of the case it's basically that just maybe another way of looking at it is somebody can change their claim construction position later on after markman if they had good reason and learn about something after the mark man that they couldn't have known him for four and then once they realize that they time and diligently take it to the district court in the relay under that situation if the district court said no maybe that's an abuse of discretion there but if there's a situation where the party was not timely  was unreasonable and discovering a problem late in the game either or both of those situations then the district court's well within its discretion to say no we're not going to be doing this all over in the situation you're talking about the local rules of a northern district do have an avenue for a party to say we've learned to information and we'd like to to do that that wasn't done here but there was a case of it that doesn't relate to players instruction because discovery part of it we have a case about that we construe the rules of the northern district  california and we talked about that something that the rest of the room in the process we need for later knowledge to reopen ok right right i mean these rules can't just be you know that's the rule and we're done there there  a good cause exception to how the rules go forward there's nothing else establishing identity of verses identifying who are those so similar that maybe even at the district court shouldn't have done that last minute lurch to a dictionary it doesn't make a difference because everybody was able to make the arguments that they needed to make in terms of their relative conception of identifying her and stablish an identity such that the jury was within its reasoning to come to this conclusion yeah i mean establish the identity of identify in the patent all means the same thing that i did i am glad you asked me that question because you want to counsel keeps saying that we said and an identification needed to be final it needed to be unequivocal and they accused us of arguing to the jury we never argued to the jury that that claim term meant anything other than as the court construed it and they they provide some citations to the trial record you'll see if you go to those pages the expert is talking about the definition of character and he does talk in one section of about the specifications disclosure of an environment when there's only political identification but he never suggested the jury ever argues to the jury that that embodiment is required by the claims it's just a discussion of the background of the specification that they twist into some kind of argument that we kept pushing for finale as the end all and be all of identification and there's just no support for that we only use the district courts definition of identifying when we were making or not infringing defenses is a matter of practice when you just record say that for all of these terms i'm just you should just use the ordinary meaning something or is it or is everybody just say ordinary meaning like it's a grenade and run out of the room i think i think in fairness a lot of plaintiffs do that but in my experience most district courts when there's when there's a dispute they do their best to try and give the jury more guidance on what the ordinary meaning is like judge white did here you get yourself into trouble to reach its true it i'm saying that he provided the jury more guidance on what the ordinary meaning of identifying is and what he wouldn't allow to happen is  definitions and identification means finally identifying i think that's the ordinary meaning and that's what i think if he did if he had said that yeah i i don't think you could he wouldn't have been able to support that with any changed it he added yeah i do in that situation he would have added an adjective that appears nowhere in the claim i agree that that that would have changed the meaning of the claim and it certainly would have been the ordinary meaning of the  arguing a different claim construction than that and then we disputed it then we got the instruction let's start with the district were instructed the jury he it's difficult for me to see that he gave an instruction which was inconsistent with says the scope of the claims is a question for the court not the jury to my curse as if that's brought to the attention of the trial court as a claim construction dispute in time to resolve it he needs to resolve it and this was raised in plenty of times reason if i think which trial it's basically a jury instruction question and it was we raised it again we objected at the jury's conference about it this is a question of how do you tell the jury what the scope and bounds of the claim mean and  situation where one of the parties is unreasonable and coming at a very late date to the district court saying that you now wants a construction on something you didn't want construction on i think that would be a situation where there be a waiver right even if there is a genuine dispute about the meaning of a claim terms that are as to what the ordinary meaning this isn't that case judge jan i think that in that situation the outer bounds would probably be will fifty one the federal r it would depend on the circumstances here the other side changed their position about what identify me and we raised it at the front of the house and i bet you you would have agreed that there was a specific construction and they wanted to change it the judge could say waiver to look it would look at column twenty because in column twenty and again in column twenty five the patent does use identify a character and it includes within identifying a character identifying the class to which it belongs