term virtually free from interference is indefinite are you is it your position that that there's a difference between free from interference and virtually free from interference yes the difference those are those are different claims they mean different things also where we not simply free for that but the specification here never refers to the term truly free but it does refer to determine free so if we were in a claim construction mode trying to construe the term in the claim virtually free it's incumbent upon us to look at the spec to see what informs our construction of that term right and we would necessarily at least look at the references to free from interference to try to inform our analysis of what for actually it's a second that i mean this isn't one side or the other this is just trying to see what the analytical framework for what we're doing should i believe i understand the question and first thirty five there's a discussion as i mentioned indicating that the headphone user can enjoy private listening without interference from any other receiver headphone users even when operated in space and the very next sentence in this paragraph the only other sentence says the fuzzy logic detection technique used in the receiver fifty could provide greater user separation through optimizing code division in the phone receiver and so if without interference were regarded as meaning zero interference or completely free from here so be no way to have greater use or separation so let me see if i understand what we're looking at this path and you're saying there were at least three specification but i think those are those gradations that you just mention are worth considering in terms of the you know as in the case well i thought that's what i mean don't you have a trial reviewed in your analysis here which is called the interference threats from your peripheral and that's what you said out at least four categories are written here i guess i don't know maybe there's something in between which is zero interference free from interference undetectable virtually free from interference and then we at the end greater interference so i'm not making this up on my own i'm taking this from what the intent of that chart was to indicate that when the applicant during prosecution of a parent application made a distinction over the prior art and characterized his inventions where interference is virtually eliminated and then provided some guidance where eavesdropping cannot here on the interference diagram where does the reference in the specification the only reference to interference with something going with that is without interference where does that fall along this continuum from zero to greater and the term in the specification is without interference so you can tell me again what without interference it is your view that without interference is virtually free from interference and not free from interference i would say we diagram that you've created not sure the interference diagram is quite focusing on the applicant's distinction over the prior art that was done in the prosecution of a related error that would cation where the applicant provided baseline me at so you keep saying that you say that in your brief you used the term baseline but am i wrong i mean there's a baseline but that just gives you one end of the spectrum it doesn't tell you about the other end of the spectrum so i'm not sure whether whether or not we agree with you that there's a baseline set somewhere whether that informs the limitations because that gives you one end but not the other and that's the problem we're dealing with in terms of trying to construe assesses where eavesdropping cannot occur that has significant meaning particularly in a c d m a system where we have coded transmissions that keep other transmissions that are coded separated but that it's not a baseline but that defines the entire scope and you agree that an example of that doesn't mean that that is everything about it and that is defines the entire parameter of the term right g means here's an example it doesn't get it may give you a baseline if that's the term you want to use but it doesn't give you the line at the other end right well when he said an example of it you know our belief is that  have a series of bullets saying what a seat it would understand based on prior of minutes and it refers to for example eavesdropping and  jamming of military radios resistance to eavesdropping and interference and and so my question is how would th interference is virtually eliminated and what the bullets but i think that you're looking at come directly from extrinsic references that we provided in the record they're very clear and they're consistent among them when they identify c d m a as a technology that was developed to prevent eavesdropping they discussed c d m a as well known to reduce interference and prevent eavesdropping and that when i save trouble they're using that word again and again and again so th virtually free from interference to mean this what if what if i'm sorry to interrupt but what about your specifications reference to private listening does that at all i'm just adding headphones so that someone who else who's in that general area who also has a set of headphones is privately listening to something else that they still me and their ability to privately listen to their music  i think i understand the question and and i would answer it like this during prosecution and the related parent application in this case there were claims that were prosecuted in that were allowed that include the term virtually free from interference and free from interference and also restraint private listen and so our view is that the term private listening is consistent with both virtually free from interference you can have private listening when you have when your system is virtually from interference or when it's free from interference and that sort of goes back to the interference chart that we put together when you say that eavesdropping cannot occur where you have private listening that is possible whether you have virtually free from interference or through from interference there's not a distinction there in terms of being able to have private listening so you're saying if i can get a nice clean picture on my sony t v nobody can listen in on  i think we i think that the unifying concern here is are you keeping it user transmission separate in an environment where you have multiple transmissions occurring in frequencies in the same spectrum if you're keeping them separate eavesdropping can both result and they can be that they're both true at the same time if you're keeping your transmission separate using koda transmission difference so it's the it's a cut they're both a consequence of whatever we're talking about but there i thought you said a few minutes ago that they were different maybe i misheard that private listening and eavesdrop dropping not occurring are different right i would say it another way well is that not occurring that they're different private listening and free from eavesdropping are different when you're keeping see when you're keeping your transmissions from multiple wireless devices separate from each other each person in the environment and have private listening apart from every other listener your specification says the digital audio music system provides crave it listening without interference from other users or wireless devices i don't see how that doesn't then equate private listening to the definition that's providing the prosecution history that talks about having no eavesdropping so how are they not the same all i can tell you is that the record shows that they operate the same way private listening there is no wiggle room given there for what personally might mean and appellant the entire plane or argument is based on the prosecution history of the eighty five and everything also relying on the fact that words like virtual are pending at the time and already been allowed in those had the virtually free from interference language and i'm right yes trying to get those claims were never rejected over the reference can you accept for purposes of argument that we're not buying your argument that that language is completely irrelevant and not you know not relevant to our analysis here so what to accept that as a predicate so then let's assume that language can be used to construe terms that have virtually free from interference are there other deficiencies in terms of reference to know without interference private listening without interference and understand that we're talking about the invention of headphones what we're talking about with no ease dropping is that somebody else isn't going to hear your music even though certain in this case and that the i d c addressed have the virtually free from interference language court found them indefinite yes there's a prosecution history statement here that pretty much defines what those words mean and yet we keep on talking about other words that aren't even in the claims that are before us why are we talking about what those words mean if the words that are in the claims an issue we're defining the prosecution is true why does it matter that i might not know how that what that word means compared to free from interference yet you may note the appellant did not rely on the prosecution history of the two eighty five and nor even the three ninety one and so make this argument because there's simply nothing in those you're saying because it's the parent made some other related prosecution history we should that because the legend and that prosecution history was directed to claims that don't seem virtually free that we should understand that the only thing that was being discussed was the bridge was free from interference even though the express language said virtually free yes and i interference when the statement was made with respect over trying to overcome the bell reference had been withdrawn and the commission didn't feel comfortable making that we the thing is that i could appreciate probably much more had been saying lavelle does not teach a new relationship or interference is a limited i mean it says is virtually eliminated and and then the next sentence talks about therefore the claims are allowable but it's almost as if saying they're especially when there were these other claims there were issues that the court would not understand were virtually eliminated bean's when it says right there well i think another problem your honour's that there's a the problem that runs throughout this prosecution history forward criteria for terms to create objective boundaries reasonable certainty we looked to specification and we see the specification is simply the truth and virtually free anything about virtually doesn't exist in this reasonable certainty of what that was me can we start with a a baseline and say that something is without interference if there is no source of interference i would agree that  so then you have that baseline and if a source of interference appears and yet the status remains exactly the same then it is without interference you see what i'm saying yes right so you can alien planet in so far away from any other train there's no there's no radiation so yes in that case it clearly means nine zero nine right these pants are directed to operating in the real world and so in the real world there are all kinds of signals that claims actually so nothing is ever without interference nothing is ever without signals that could be interference and what the inventions are is intended to address this new way of dealing with all these conflicting signals to separate out the one you want to get and it's a well known thing in c d m a not invented by this panty that you have the user code that help you and say hey this is my transmitter this m someone i get to listen to my ordeal the difficulty here is that we have your example then there is free  erence it's saying free virtually free from interference from device transmitted signals operating in the wireless headphones spectrum and the claim itself is directed to headphones and ad talks about how you want to have private listening why doesn't that tell you that interference is talking about not having eavesdropping for having private listening because rather some other facts here and one of them is that the patent says it operates in a certain so that that is a well known and it has a lot of stuff in my cordless phone and it has microwave ovens and that if nation comes from a finding of fact that was uncontested and it's at appendix seventy four that includes devices such as those things cordless phones why five devices and why five devices might be my computer your computer sending emails she's browsing for information about the weather and whether it's going to be a blizzard tomorrow those are not audio signals those are electrical signals that can cause interference that i have which are saying but what about the reference to private listening without interference so you're not concerned about e mail us your concern about meaning of the word hussein virtually free from interference why wouldn't one of ordinary skelly are with the references private listening and the specification and the references to know ease dropping and the prosecution history then understand what we're talking about with interference here is the ability to not have to hear what somebody else is hearing on their wireless headphones at so i understand that not hearing someone else's conversation yes for noise and specifically references that in the same patent column three line twelfth through eighteen and the first part of that says hey there can be noise from the code words that come from mind enter the transmitter to the headset someone else got one big the noise from those signals and then it goes on to say this may also be true for other device transmitted wireless signals operating in that spectrum it doesn't say audio devices it says other devices and we know from the finding of fact that there are other prices are not what your devices so one  from other signals that is something actually that appellant submitted to the patent office and it's in our brief at page twenty three note five then a prosecution they told the pa office it's well known by those of ordinary skilly art that interference means overweighting producing undesired artifacts was it was there any discussion anywhere that virtually might mean the same as think the l g a look at this and say in addition to it being irrelevant say something along the lines of but this doesn't even equate virtually free from interference to eavesdropping and wasn't sure how those two re mean how does this relate to ease dropping it's again fully consistent with a situation where he eavesdropping cannot occur because the examiner is recognizing that and i detest good tips can you use a word other than consistent with because that's the term you used in your