intentionally disables the cell signal functionality of the the the original construction of the user intervention limitations health exactly that that that the user could not intentionally inability to communicate because it says unfortunately understand the thetan under certain conditions which implies that it's a unintentional situation that's correct your honor yes but the problem is that what happened by the time  the a user intervention limitation got the summary judgment that the district court claim construction entirely changed with respect to that limitation mind you when it held that markman that that what that limitation requires is that a user could not intentionally ca impact the the district court explained however that a user could response to impairment and has a then if you look at the district court construction and that summary judgment if that exactly the opposite it said that a user could not respond to impairments i the conditional or the present tense limitation and it markman the district court held that the the transfer to be must be conditioned on the present tense impairment impasse a but but the mark when the claims a structure was silent as to what happens after that in other words there's no need to transfer back to path a is when the path a becomes becomes available again but it's summary judgment the defendant argued that the that the present tense condition limitation with much broader and they argued that that is soon as path a became available again that there are that that the package requires an immediate transfer back over to passe but this is this is also wrong and completely unsupported from the intrinsic record because if you look at the embodiment disclosed in figure three as well as the claims that map to that environment there is no requirement to transfer back or revert back to have a north past a designated as a  adequate cellular service in the invention gives you a way to transfer to a wife like that works which is exactly the opposite of the way that today smart phones work so it was a missing something factually there to make because in the smartphone i have i suspect most of the people in the room have if you're on a network then that's where you are in your cellular only works if you're if you turn off the white fire or you don't have a wife a connection so why if they just wear that are just box so what happens is is out of the box when the user receives the phone the people that infect is happy and sprint on documents show that in a substantial amount of the time when the user experiences difficulty communicating through their cellular phone then they will initialize the wife might be the user has to do something though they have to set up the user is responding to the impairment in the cellular and the user is then method and system claims that related to security software by requiring periodic pass code updates in the past updates could be provided either manually or automatically with respect to the automatic path updates the specifications said that they would occur without user interaction now the parties in that case agree that a user could choose manual or automatic but the issue was whether once a user chose automatic could the use have any involvement in initializing the automatic mode this court looked at the patent as a whole and said despite the specifications recitation that a user involvement is not is not permitted the patent as a whole contemplates some user technology out of the box unless you figure setting so that it uses why fight is going to be a cellular phone the other device goes out of out of the box and say that's that's what this invention is too because it's it's it's a cellular phone unless you buy one of the the units that that allows you to to switch over so but once you enable a smartphone which is what you put in the additional settings then  is the way the phones are designed but the issue is with the way the phones are being used and and there's evidence in the record that the phones are being used in exactly the manner that is contemplated and  users the only way that it will happen that way so that it works the way this eventually works is if the user sets it up so that there's no wife if i understand correctly the so there's two scenario but that's not the way the cellular phone works and they always default to the wife by it maybe because it's a locked signal that you have to enter a password i walk around the block every morning with my dog and when i look at my phone first and then goes to why is the exact opposite so why isn't that putting aside this whole user intervention and the fact that you may have to if you want to sign onto a lock was by putting your password why doesn't that still not in the record eight twelve sixteen which states that most users use wife i as a backup only and a thirteen twelve showing how to connect to wife on same with a six hundred seventy one to seventy eight and then eight specification is there is no local base station repeater proximate so it's not possible as as a premise that there could ever be a regulator frequency there so that really doesn't answer the question of whether if there is a radio wave preconceive that it's not the purpose or i just don't find figure three prepare very compelling to the argument that the radio waves are the preferred method well so communications where communications had previously been impaired to your point with with that figure three but there's no requirement to constantly redetermined signal strength and revert back to pathway as soon as it becomes available in fact that requirement would make communication nearly impossible if the system and method had to revert to path a every second switching back between path a and b it would make communication nearly impossible and that defeats the purpose of the invention which is to promote communication where it previously been all of the independent method and system claims and we think that that is the easiest way to farm the district court's summary judgment order and one of the questions i want to start with the fact there is absolutely beyond dispute in this record that whether we're talking about wife i or we're talking about a simple cells that if that is activated that all of these smart phones are going to use that as the preferred pas not the alternative path you can have perfect cellular service and these phones are going to use wife i they're going to use them to sell is the exact opposite of what this invention is about you read the specifications it's crystal clear we want to use cellular as much as we possibly can use the default path it's right there it's called out in column three of the spec as unable and the system or enabling the masses these claims are about what happens when you have to pass that are available you have a cellular path and you have an alternative path b and that's the saying let's look to see if we can use that shall your path and if we can we're going to communicate over it and if and only if we're on a will if we cannot receive a signal over cellular path are we zen going to resort to the alternative path and again on this record the accused of vises work the exact opposite of those if then those conditional if limitations and we believe that that's easiest way to a farm this court's summary judgment ruling and your honor absent any other questions about other issues i don't have anything else i thank you  i'd like to give a real life example of an infringing scenario which is a user has their phone it's it's they're out and about using their cellular service they don't walk into a starbucks they their cellular service and and they that under your invention because that under your invention if you're in a starbucks if there's cellular coverage there's no need under your invention ever to switch to the wife there must be present tense impairments and pass a to that as a condition for the swish but in my scenario there is no reception in in the starbucks you walk into and that is why you are connecting to the to the wife high in the starbucks it's very similar to  very similar so if you have no reception at all in your home then you have impairment a pathway or inability to communicate your path a you will go and get a sense of self it will be installed and then you can communicate through path b as a result of the impairment  but the problem is these phones don't operate the way you say they operate because they don't default to cellular they default so wife by it's available and it's available in the starbucks whether there's impairment or not and somebody can choose to sign on to the white high if they don't want to use their cell data plans and it makes it easier but it's not choosing that because it's impaired for the most part sometimes it may be sometimes that late it's still not that the default you're isn't exactly this issue was the issue of damages that would need to be resolved when it goes back because the issue is that that there is evidence that i was finding too that that the way this can actually use is out of the box is preferred  and if the why fight is that if you don't need a password or something and you can connect automatically to it then it will connect automatically if you need to pounce where you do it but it looks for the wipe a person doesn't look for the saudi first we did that's the true way to look for why type first i think they do right click i mean a lot of times you have to like i said watch the network because people have put security on them but if you don't know if it automatically locks into an unsecured life by it can be set up that issue of material fact should be decided for the jury this was wrapped up so with all this with with all due respect we submit that the district court's summary judgment version of the claim construction of the user intervention limitation conditional present tense limitations and the