good morning please the court invention here is about a device that allows two players to play video games remote link and talk of the same time in one nine hundred ninety when it was invented it was revolutionary shortly before we filed this lawsuit in two thousand and four microsoft said their version of it was revolutionary we're here today because the district cork construed to claim terms in two different claims incorrectly in  and the two claims are claim fifteen and the claim term there is voice over data means and the other claims claim thirty nine the issue there is the phrase electrically connected and if the court doesn't have a preference i'd like to start with point fifteen in the voiceover data means the question the ultimate question for the voice over data means construction is whether there is an al structure disclosed for the voice over data means and in this patent but this is the structure i'm shooting pains on whether or not they consider them and they had a lot of structures are equivalent or fully explored or fully described i think that's probably not the case here because microsoft agrees that the filter structure the notch filters technology is not completely disclosed my algorithm in terms of the equivalence argument i think that's fair but the patent discloses the path is interesting because it has put a call the block diagram of the preferred embodiment and that's figurative and then it also wastes what it calls a schematic diagram of the preferred embodiment which is figure three so it connects the two as the preferred bottom and one of the block diagram of the level one of the when it talks about the block diagram the block diagram has two boxes call filters and it calls those things in the text it calls those filter means and it says even if we accept your proposition that two and three have to be read together that it gets very confusing in part because there are there are as i say there are examples or three examples actually in the patent of what the structure is for the filter means the filters and bottom figure to the one is the not filters the other is what they call their great circuit which we really haven't talked about much because it really isn't that relevant here and the last is the microprocessor and that's shown in figure three but we've always said and our experts have always said that the figure two structure is what the record supports that's why we're here and if you look for example at the very beginning if you look at the if the argument in two thousand and six i believe it was only brooks was arguing for hochstein and he was asked about this very question and this is it a four seven four six and he says that he's got a slide figure three they suggest that it's the algorithm in figure two it's fine with me so he's talking about that figure two is the algorithm figure three it's the same combining separating the algorithm that we urge on figure three covered figure t include the filters and frequency division multiplexing shown in figure two correct that's where it gets confusing because the what we're saying there is it's not the discrete filters we're saying microprocessor has an algorithm it doesn't have filters and it's not implementing is the combining of a separator if you take the function of a coin all right it's to it's to send certain information out and receives or certain information that's the x with the functions it doesn't tell you how to do that he the result is that the person who's talking and playing can hear the other person who's also talking and playing that's resolve in between is how that stop and the how that is done is by combining the voice and the data together and sending them on the same line over the other remote system and then on the receiving end when it's coming back in to separate those two send one to the one piece of information with data to the video game system and some of the voice to the speakers that's not disclosed in the function  not the result get into the hollow that's done that's why for us that is the that is the algorithm it isn't limited to a filter per se it's a filtering process in the broad sense in the broad sense the filtering is to take things apart it is a filtering process but it is not a filter which is what we were saying in the quote from judge mal read these are not filters in the microprocessor it is the process of combining and separating that is the al so that's the difference for us in that white bits in arms you mean that the algorithm is disclosed in figure two and we're supposed to with that impose that on figure three what we're saying is figure two is a block diagram of the preferred  figure three is all the circuit pieces of that same prefer the bottom and so whatever figures to disclose this figure three also disclose it's just that is described this this process as described more specifically with respect to figure two when the description of figure three comes it's only about well you've got this capacitor and this resistor in there hooked up this way but it's the same exact preferred body and so when you're describing figure two you're also this biden figure three jackie was a special master at the time asked well are you making an argument as to what ones and he says one twelve paragraph six equivalence based on figure two and he says and he goes on to say that if we lose on this issue we don't think we should but if we do we have an equivalence argument and we made that argument in our brief in two thousand and five we made in the expert reports that were submitted in two thousand and five we've always made an equivalence argument so if we're wrong about the  discrete notch filters are one twelve paragraph six structure and we have one called paragraph six a quote once case against what microsoft does based on those discrete structures  again the court said we waive that somehow but we did we have a very good record on that and so it was an alternative argument was in our primary argument but it certainly was our backup argument that we were making and shouldn't do you can see that if you don't have isolate it and read the text accompanying it correct there is no description of exactly how the information flows that scription figure three is all about what connects to what is a capacitor connected to a resistor connected to a microprocessor but it doesn't tell you what the information flows that information flows down to the higher level of the block diagram level so i would agree that if we're limited to figure three and that's all we can do which i don't think is right then and there isn't a disclosure specifically with respect to figure three there is in the sense that once you understand how the overall system is supposed to operate as described in figure two then as our expert said one of ordinary scully are reading that patent would know that that's and one of borders on the art would know how to program it although they don't you don't have to have the programming and in one case it's interesting on this point is is the rembrandt case the course the two thousand and rembrandt case that says that it held the where the expert said it he could find an algorithm and the court said no the claims and definite this court said that that's a question of fact that has to be it cannot be ruled against we have known on some of judgment of invalidity and i think we have i think that there's plenty of case law that we have that says that out that you have to do more than functional claiming to have an algorithm can't just tell us what the functions are that you expect to be performed you have to explain how the microprocessor is going to be program describe those as filtering means it uses the word means that the end of the phrase and it says the filtering means can be a notch filter can be this integrated circuit or can be a microprocessor those are all the filters that are disclosed in figure to all three of those and so any one of them they're interchangeable but once you understand how the figure three figure to operates and this is what the experts say once i understand how figure two operates i know the algorithm i know the algorithm that  don't disclose the two ways these are just things that he would contemplate correct but no i don't think so i don't think so because the programming step is a matter of routine work for somebody skilled we are if you're a programmer there are lots of different ways you can but there's subtle steps in this process as i understand it the first is you have to understand the function of the client look at the claim you read the function the next is you have to try to find corresponding structure that goes with that and the structure for a microprocessor t be the problem with plaintiffs argument about the microprocessor there are several problems with it the first one is waiver the patent mentions the microprocessor exactly twice there is the box and figure three that's tagged microprocessor and then there's that some language in column eight which is mr leary explained talks about how the microprocessor is connected to other components but not how it operates now in the face of that plaintiffs originally proposed an algorithm back when microsoft first moved for summary judgment and the algorithm was combining in transmitting the player voice and game data signals outbound direction and receiving and separating the signals inbound direction now they base that algorithm not on figure two or anything else in the pattern but on the declaration of their expert dr shamim who who in his declaration basically identified the claim function and said anybody of ordinary skill in the art would you know how to program a microprocessor to do this now the special master at the time agreed with that approach he acknowledged that the specification didn't explain how the microprocessor handled the voice and the data signals but he concluded that the function was clear  and so he came up with his own algorithm basically a variation of professor john means the algorithm and he said it it was combining in some banner signals representing voice and signals representing game commands transmitting both over a communication channel and separating them out in some manner at the other end now he acknowledged that this meant that the claim covered in his words any hardware or software arrangement that preserves the identity and content of both voice and commands that's it fifty eight fourteen of the appendix but because he believed that's one of ordinary skill could devise a program to do that he thought the patents disclosure was sufficient and you're saying this argument comes to the way we're not yet i'm getting to that your honor now enemy and i will address that but before i do i would also like to add that back then microsoft itself argued that figure two should defer should if it's relevant at all to the microprocessor it should be defining the structure of the microprocessor plaintiffs vigorously argued against that and the reason they did is because the filters arrangement as everybody acknowledges is a frequency division multiplexing arrangement and it's also agreed that microsoft's arrangement of the way the microprocessor functions however functions it is not frequency division multiplexing so plaintiffs not only you know disagreed with microsoft but vehemently took the other position precisely because they wanted to avoid having summary judgment entered against them at that stage for that reason and i apologize for that but i think that's fine as i see their argument it's that there is full undisputed disclosure as to the use of the filters and as his ruling which is quoted in the district court's decision at appendix page seventy five the that the the plaintiffs presented that there was no evidence that x box uses the filter structure or is equivalent to it at paragraph twenty six also quoted in the district court's decision the court the special master said that there's not enough evidence to determine if one of ordinary skill would find an algorithm or conclude that the x box is an equivalent now the reason which is in question in fact you're not it not in not in this procedural context here's the situation microsoft moved for summary judgment of non infringement undersell a tax that put the burden on plaintiffs to come forward with in an infringement context a claim construction that would cover the accused product and evidence on which a reasonable jury could base of finding an infringement under that claim construction what the special master held and claims didn't object to those findings is that there was no spare was note not sufficient disclosure of an algorithm and that there was but somebody skilled in the art couldn't they look at figured three and say ok now i have hearing a digital apparatus i'm looking figured to figure two teaches me how to program a computer because figure two takes me through all the stiffest what's that as to how this is going to function and what's necessary in order to get the voiceover data means the there's no there's no evidence of that there's at least there's no properly submitted evidence of that players didn't come up with this their fair for i think fourth and final algorithm until after the special master hit rule then after the district court was considering microsoft's objection to that ruling it was only at the very end that they even came up with this algorithm which which there was in their two thousand a expert report which again was submitted after the fact but even putting that to one side if you look at that algorithm it's really nothing more than a restatement of the function that the microprocessor is supposed to perform in his original ruling the special master explained that mixing in separating signals are functions performed by the microprocessor that's at appendix fifty eight zero seven paragraph seventeen they're not of performing the functions separating or filtering the signals the micro the special master also said is the function is a function and it's also a separating the signals as stated as a function and claim sixteen which has a similar means plus function  limitation and the other terms and in their their last algorithm ascending and communicating are merely alternative terms for transmitting which is part of the function of claim fifteen and the final step in an algorithm combining the signal so they don't they do not interfere with one another they admitted their brief page thirty seven is the end result of the operation of the voice over data means it's not how it accomplishes that result there is nothing in figure two or any other disclosure in the patent or in the or in their experts you know explanation either the time we want to be untimely one that discloses and or says anything about the internal structure of the microprocessor which this court set in cats is really what the expert report which was untimely there was nothing in the two thousand and eight expert report we believe is in n z is insufficient and for the reasons that i just explained which is that the algorithm bad expert report comes up with is merely a restatement a function which is not is a sufficient structure for validity purposes for indefinite per it department indefiniteness purposes and that is the filter structure so that's why there is nope there is no contention that this claim is invalid as indefinite there is a structure but that structure isn't what we do as a district court found plaintiffs waived any argument that we do either good either literally the figure two filters embodiment or do it by way of equivalen and incidentally that passage that mr leary meant regine from one of mr brooks argument not only is it inconsistent with the written statements but if you go another page or so he then says oh you know what i don't think this is it is actually figure to  how do you explain the fact that microsoft appear to just fall into this claim construction on electric and connected well of i don't think microsoft fell into this and in fact as the district court found microsoft consistently maintains that electrically connected requires a connection in which alert electric current flow between two components now the plaintiffs argue that somehow you know we conceded that transformers provide that kind of a connection but that's not the case at of putting to one side whether the litigation position somebody takes fifteen years after the fact is even relevant to claim construction and i know your honor that their argument is not that microsoft waved a coin construction argument or waved an infringement argument it's somehow that microsoft's positions or failure to take positions post failure to take positions somehow informs the claim construction and there's no support for that proposition at off but which would put it but it's i mean i was a little trouble that it wouldn't be understood by want to scale the r if that was the case why didn't you say it a lot sooner well there was no reason to and here is why first of all microsoft from the outset denied that claim thirty nine are i'm sorry they did that it in here i can read it to you denied that the x box had quote a modem circuit connected to the first microprocessor in the manner required by claim thirty nine in other words electrically connected that's all at eleven five thirty two of the joint appendix now what plaintiff's expert said in effect this is in the part of the declaration that both the district and special master quotes planners experts said that a connection that uses transformers does not transmit current but rather converts an electrical signal on one circuit into electronic electromagnetic signal  which then generates a current on another circuit so as and it's a special master noted that description is inconsistent with what microsoft said in a electrically connected electrical connection was so once once their expert said that there was no reason for our expert to say anything else they have from our perspective given away that issue it was only later when they were backing and filling after the special master in district court rule that they started they came up with this argument oh you were too late a ll of that but there is that it's i think the claim construction issue on that is clear as a special master and just report found that the pattern only uses electrically connected to describe derivative connections using an electrical meant literally that's probably wrong i say what it is that i think in fairness i think what he meant was where the intrinsic evidence is clear it would be error to consider extrinsic evidence that it's contrary to the clear intrinsic evidence or to or supposed microsoft litigation positions explained why that didn't help plaintiffs even if it was relevant he looked at the dictionary definitions and said you know one of them clearly supported the construction he adopted the other one was ambiguous and any looked at the experts and he said not surprisingly the experts disagree with one another so that doesn't advance the ball so i'm going to go with what the intrinsic evidence tells me if the court has no further questions thank you thank you because we raised the idea that the term electrically connected should be construed because there was a wireless company to this and to give you some history initially microsoft sold all their x boxes as wired parks the controller for wired the modems were wired everything was white and that was the initial complaint that we file later on microsoft came up with wires and we said well our what our claims aka cover wireless is well if we have this issue about those electrically connected  wireless and microsoft said don't even construe that electrically connected means no construction and this this is microsoft's response to our brief asking for instruction it's a twelve zero seven eight and they say electrically connected is not the complicated term and the one twenty five patent does not give it any special or technical meaning if the term is to be construed the court should give electricity connected its ordinary meaning namely that says mr seizure of that hearing the next day we believe that in fact electrically connected is that every day term not unlike you know you plug in your waffle iron into the wall it's electrically connected and the current flows we don't think that time needs to be spent on that term to tell the jury what they probably already know what do you think that's inconsistent with their argument that what they do in the current directory flows as opposed to if directed flows absolutely if you go in and let me get less juror or late judge is not going to understand that when i plug an x box into the wall and turn it on but there's no optical connection that's what microsoft says there's no other connection my put my x box on the wall and turn it on the electricity flows according to microsoft that's because there's a transformer in the power supply but everybody if you just ask them to play judge us jurors would say yeah there's electricity flowing there course there is how else to turn off and you would have ended up going to trial like that if you hadn't decided to go for wireless right well i live in learning that is our fault i agree with that we should the government but on the other hand in our view the special master created a problem because he chose a dictionary definition to define the wireless issue but then even to address the wireless issue he had to change the definition in order to exclude the wires and that's where those induction came in and then the whole rigamarole about that the other thing i need to say about that is when the special first of all microsoft up says that when they argued that the microprocessor madina should be limited to filters and f d m we said out and the reason we said it was because microsoft wanted to say that the microprocessor had to be only frequency division multiplexing filters we said no it's broader than that that was our no we didn't say that no it can't be composed of the flow chart or the block diagram of figure two we said it's not limited to that very specific structure that is one and one example of figure two so that was there was one point in them i think a very important point on this equivalence problem is that i don't think we actually can fairly say you ever waive the equivalen microsoft did not file a motion for summary judgment two thousand and eight microsoft filed leave to move for summary judgment because as they said in their motion the deadline for summary judgment motions is passed we need leave and what the court referred to the special master was not a motion for summary judgment it was a motion for leave to file some production and this is a a five day course six this is the referral order by the judge before the court is  microsoft corporation april twenty two two thousand and eight motion for leave to file a partial summary doesn't motion the parties consent to the court's referral pursuant to federal rule fifty three the special master will conduct a hearing on defendant it wasn't about the summary judgment our response brief was three pages just saying a wrist a crack doesn't need to be considered because you already considered everything that was risk credit says but in the earlier motion you had argued for all the structure that you were contemplating right yes i'm talking i focused more on the equivalence issue right now that we didn't wave problems as the district court found but yes we did talk about that in in our opening motions we talked about in fact of us gaming was if the court was going to actually get into the summary judgment merits we should have been entitle to present additional evidence on those points and the district court said no you don't get to present any additional evidence so sponsoring reading summary judgment on a motion for leave and that was an air because we had the record we had a two thousand and eight declaration that we would have filed if the court had said yeah microsoft you have to leave to file a motion for summary judgment we would have answered the motion for summary judgment without us including a two thousand a declaration that goes through  in very good detail all the steps of the of the claim in the aristocratic sense that we didn't get present to the district court because it granted the motion for leave the same time it granted most recently to love giving us opportunity to