our next case is chicago board versus international security this may have pleased the court the district court's constructions of the terms matching and system memory means are inconsistent with those terms of usage in the claims in the specification and in the prosecution history and although such constructions were relied upon in the granting of defendants motion for summary judgment the district court ought not to have granted that motion even based on these incorrect it's very clear from the plain language which i'll get into and the specification that when these orders are being managed they're also being allocated the same time and there's no way they can said to be distinct they have different meanings rather than out of context which was the first question that matching allocating are really part of the same process and occur at the same time he speaks in terms of matching on a pro rata basis allocating on a program to bases being the allocating she really did not even attempt to defend the court's limitation that matching is based only on price as both limitations directly conflicts with other of the court's own constructions as well as express language of the claims of directing the court's attention on this point claim thirty five claims thirty five speaks in terms of first matching public customer orders based on allocating parameter in matching based on allocating and then second matching the professional orders with larger sides based on allocating parameter on the face of that plain language  defeat the the summer judge in the infringement i don't think we have to win on either of the construction of believe we should but we can win on are there in order to have tribal issues in the court below so we don't we don't need to win on both we which is at page eight one twenty five of the appendix column thirty one twenty three for twenty five of these means for matching the remaining portion based on a formula that allocates and the court essentially floor based trading in which the rules for allocating trains were sensibly based on price and time your first first in first out matching matching occurred on that basis of the the invention was combining a priority to public customers to encourage them to do trading the options markets of the tickler although the the patent covers securities more broadly and further that was never done there was never a priority given to public customers if there was never a priority given the other in the stock markets never it never priority to public customers combined with the incentives given the professionals to quote larger size and it allocating and thirty six that system memory that bit matching in the offer matching process is to all be together but as part of that they have to function together to allocate trades now that that matching by the specification in this instance by the prosecution history which very clearly states that the relevant structure is just a memory that's where all of the parameters for tradeable public customers  ression ills are sort of the the use of storage store storing is used consistently throughout the patent and refers only to the memory of primarily to the system memory and then there's also system memory is part of a single system you're saying if i'm hearing you correctly that any system in the instructions it can't just find it's not as if it's a black box with how to do and you're saying that the the algorithms the bitten off imagine process apply them or contain them which have entirely different meanings and stored have different algorithms you can you could have completely different algorithms and still have a system memory short and then there's and there are a number of different ones there's there's rhythms for allocating and matching public customers there's different allocation of the rhythms for for professionals both pro rata and preferential for certain professionals so all of these are stored in just the memory claim claim one of stage a one twenty four the appendix columns thirty six lines one through four reads system memory means for storing allocating parameters for allocating tra between incoming order or quotations and the previously received orders and quotations there is no distinction drawn between public customers and professionals it's just all of the parameters for allocating trades are stored in the system memory and we believe the bads you know that's clear on its face in terms of the structure it's just the memory of that that clear t say then it's just a memory twenty six was the structure well we do say that we do say that in the specification we asserted that memory in a general sense you haven't said there's the system memory twenty six this black box was this the structure that corresponds with the function right next to memory well we had argued in the district court that memory should be the structure broad broad the written mainly because they see the iliad is to argue that the structure was a general purpose computers so we you know what the part became closer on this on this point and we did in fact argue or get below that it's just a memory is a structure in that we have overcome you know the means pose function direct the court's attention in the bed in the specification the reference made to the professional orders and quotations of being stored according to an algorithm stored in system memory and as well as public customers directly contrary to the district court's finding that these were somehow stored separately a page a one fifteen column nine lines forty six through fifty one it states the way market process trades public customer orders automatically against the professional according to a set of pre determined parameters stored in system memory and the final point nancy you seem to be talking about a good memory in broad term s and finally that the prosecution history of you know stated on a big us leave of the page a twenty one thirty of the appendix of i actually made the following statement claims one of thirty five quotation amid claims one and thirty five recites this as a allocating parameter so a lot of vigorously stating that all the parameters for both public customers and professionals are stored in system memory to the question you asked about the novelty of the invention i think mr it is not true that the idea of customer priority and the impetus for professional as it is done today but there's nothing particularly new about this other than the fact that it is a totally automated process and that's part of what part of the argument and part of the discussions that we've had with the district court and what they do is totally automated and that's what links the storing of the customer priority allocation parameters given an offer matching process the patentee however does not seem to associate the word store with the offer matching but we start by talking about the the one instance where there is a reference to system memory twenty six in one reference and in the specification and that one reference states that the system memory stores  call the professional help getting parameters that part is clear in the bid offer matching there is a difference the bid or for maturation process is a process that is embedded within a process i think we all agree with that and what happens there is that there are modules or if you want to close logic circuitry that contains the parameters for customers you might say why would that be the reason that would be is because customer priority is something that is a standard in these exchanges no matter what else happens customers get get the first they get the first crack with professionals it's completely different professionals have these changing algorithms so sometimes it's pro rata sometimes it's this there are various things to do to increase so what do you want to do with that too is to increase the liquidity to creasy incentive so what you want to do with that you want to put that in another place and that is stored in system memory and so because you're changing it all the time but the customer priority issue it's not change it's it's very simple if you're a customer and you have an order in the book you're going to get at and you hit the price you're going to get what you want and that's the end of it it's a very simple thing so my our position on this issue and i have to comment that with due respect to the person who wrote the patent application it is not well written it's very difficult to pull this information out of this patent it's not clearly stated but i would i would submit to you that what we have here is basic logic circuitry that is in the that's how you you identify the orders with the with the the commodities that are being the options that are being sold the system memory i mean at least  you've got a computer which it starts up then it's a structure that accomplishes something so yes indeed it is it is a structure and i can see that the structure of it is that it is a memory structure a function isn't memorizing anything t function is telling the memory like to memorize but it is new before we must remember the desist a memory means the function that we have there is a story just storing it's not doing anything it's just story so we're talking about a location so proper in the context of the patent and which itself describes the method of trading options contracts rather than speedy in terms of the context of the patents this year is their language in the patent that that directly describes processes i think it is it is fair to do that and must remember that one minute exchange is a limitation that goes throughout the entire every single plane has one made exchange in an automatic change or an automatic exchange for doing something so they all have it in the did this was to better distinguish this invention from open outcry cracked open outcry trading which can only be described as a process between human between individuals there's no system there so for the district court judge to do that she chose the word method and i don't think there's anything wrong with it you can put system in there if you'd like but i don't think it makes any difference really but it's a better way to distinguish the open out of the term art as well  but and then you would still have to apply it to prove to the process so you've got you've got to i just don't think it's a critical issue whether it's described as a system or exchange but i think there's a reason that this court judge did system which integrates open outcry with automated trading now i think your question is could you have in effect separate systems that's the usual fact that the judge left open because she said that the district that it was an issue of fact as to whether they were truly integrated if they were not integrated then yes you could have a system where you would have open outcry separate apart from the system and that  position to buy a seat that everything is included within the system every twenty six what is one of the things that we just noticed in going through this and i don't think it's a it in any of the briefs is that if you look at claims in those three claims you have the term system memory means use their bowl system every means claims but you also have deep in the claim the use of the phrase just a memory so system and if you have system memory means in the claim and you also have a system memory they both can't be the same thing it would make this the claims wouldn't make any sense and that's part of the part of the problem with your argument here district court judge indicated that matching was and let me back off even a little bit further that both partners in a claim construction agreed that what matching was was identifying a counterpart order for incoming orders against which in the book memory that was that part was all agreed upon there was no discussion about that no decision about that the only the decision came on two points one that was based on price only and the second was that matching and allocating are different ok so now let's get back to the price only everyone who testified in this case and common sense will tell you that if you are going to match a trade they both have to be at the same price they cannot not be at the same price even if i ses council it mid that matching is inherent in the price is inherent in magic all right if price is inherent in matching so why would you not be able to add it to the absolute definition of it doesn't make any sense so now you go to the other way that what i'll call the second matching that is done by i s c that second matching where it says matching based on allocating parameter what is being matched what is being matched you first have to match against the incoming orders based on price and then you're matching on allocating on allocating parameters so there's really there's nothing  with that there's nothing that's inconsistent there's nothing that's in operable about that it has been claiming it's it's there's one place in this patent and it's in this long patent it's amazing  option orders stored in the book memory from public customers at the best price  would that says is basically there's two matches going on in the c in the i s c system there's a first matching where you first match with the public customers and take care then you get that all done at the best price then you go after that's done then you go that's what the that's what the allocating is it takes into account the size if you've got a big order you going to get a little more but the first thing you have to do is you have to match a price you can eliminate that that would that would be like saying well i'm going to match another parameter like if you have blue eyes and i things come into play such as the course all but you run it for purposes of this of construing matching that's all you need because you start with that there is it doesn't eliminate the possibility that other things can be matched after that as i assume he does they match on the basis of an allocating parameter but they don't but they always match on price first today if counsel if i as he has admitted that it's inherent that it must be there it has to be plate we look at his formality rather as a formality in that it would be granted because all of the information had been provided to the distance but to the other side of him updated in iraq tori answers about a month after the discovery was closed and then that motion for a prior separate trial which was considered the more significant to get the ball rolling as everyone wanted to get that done but the other side didn't  eventually just because this system was totally automated in fact it's very clear from the specification and some of the claims that there are manuals steps involved so it's not totally automated it was never claimed to be fully automated so that that's incorrect mr fan discone also said there's only one reference in the special occasion to system memory twenty six that's equally incorrect you matched only on price if it's a two step process of matching you loose right of because you don't because they don't perform two steps now that's that that's that's simply incorrect  customers based on time priority that's according to an overlay in their system and then there was a second step of matching professionals on a program the basis that's according to what they call the ultimate matching algorithm then the judge in the summary judgement opinion actually played around with them a little bit we believe to grant summary judgment the way my time is up thank you very much