independently executable but also including dependence subsidiary programs is wrong not only because it is self contradictory but also because it ignores the problem solve by the invention and it misunderstands the prior art the problem solved by the eight fifty four pattern is automating the interaction between a word processor on the other on the one hand and  separate contact manager on the other the reason why it is challenging to get information out of the contact manager and to use it in the document in the work process is that both the contact manager and the word processor are separate application programs that is there independently executable each program can be executed sorry it can be activated and run along without the between independently executable program and independent executable program if you look at the record in a ten foot no two and in the other decision a seventy eight foot note want this point  discussed in note seven of the appeal briefs page thirty nine now maybe they just made a mistake and left off the l y that was my thinking but if they meant something different we have to take into account that the word independent is an adjective i know this from school a few years ago and if it's an adjective it cannot be modifying another adjective namely executable it therefore must modify program so if an application program is an independent program and it's also an executable program we have the fact that execut doesn't add anything right all programs that work are executed and what is an independent program i'm not sure but i'm pretty sure that that definition if it was intended as what it was written and supposedly different out was standing with the board set from independently executable reads the word application out of the out of the client the claim says application program it doesn't say simply program it says application program and we think application program means something that's independently executable and if you look at the language if you look at the examples that are in the specification every program that's discussed there is manifestly a program that's independently executable but what what what in the  the application program to an independently executable program as opposed to a subsidiary program in another words why this application have any sense any distinction in the claim as opposed to simply saying program and the reason is it's not any old program the problem solved by this technology is to allow the interaction between two programs that normally have to be invoked separately if i want to take something from my word processor from my contact management application and started into the word processor application i have to do some work and this is what struck the inventor at the time of the invention of this technology the work would be i have to open the contact management program i have to extract the information of interest with respect to the contact i then have to separately open the word processing program and use that information in the in the document open in the word processing program that's a lot of work so with this technology ducts and it's very clever and doing so in my judgment while working within the word processing program i can access programs they must and can only be activated by the independently executable program namely the word processor and the testimony of dr levy that's in the record likely ignored by the p t a b makes that abundantly clear but we also have the words that are directly but are those programs in the in the prior art referred to as application programs not in fact there was this is one of the other things that the p t a be did the p t a be used the prior art to try to interpret what the word application program means in the claim instead of looking at the examples  so i think the way the problem set up in the specification tells the story but interestingly the references that are relied upon by the board as well use the word in a way that sixteen lines fifty two fifty nine hundred eighty two fifty five possible preferably the spell checker program module is called by the preferred application program module i certainly see all of the references you're pointing us to but what about columns seven and why forty seven so yes where the sentence reads the application programs thirty seven may include a number of different program such as it work processing plant a spellchecker program comma a grammar checker program and so i see all the points that you're making and i think that the way you interpret ing this prior art references is quite frankly reasonable but the problem is the board points to this sentence which makes their interpretation also reasonable and i have to give them deference because this is a fact question perhaps more what do how can i possibly say their decision is not supported by substantial evidence in light of this sentence fact that the construction of dom and i everywhere else shows that the board's reading of that is wrong number one we have to remember that their reading of this document is without the benefit of the examples in the specification right but do you agree that this sentence and the abstract suppose this were the only sentence in dom and for dominance if this were the only sentence in this patent a spellchecker program and an application program i think you can argue to the contrary rather effectively because when you read in that passage spell checker program it didn't say spellchecker application program did it it said spell checker program no where does dom and i expressly tag even in that passage the spell checker by itself as an application program th what the expert dr levy is doing by looking at the examples in the specification to figure out the claims mean because that means reading the claims too narrow but also we have exactly when really did just go back and said well i'm going to read the claims because i'm going to go back and say what examples are in the specification like it or not broadest reasonable interpretation is what we're supposed to employ here however correct in light of the specification and we have language  understanding of the word application program from these prior art references why did they seize only on that one passage why didn't they talk about the other passages in domino if you're going to read domino i why not read the entire reference as opposed to one chooses these words as well i don't know why the board didn't mention that and i don't know why the board failed to mention dr levy's testimony they made no mention of it with respect to how come of it and you can say that he's engaged in claim interpretation and so how come of age tags the word processor is the application program whereas the word completion module is called a module or the art of complete utility and is never called an application program i think the extrinsic record here taking into account these references means that application program should be construed as a program that is independently executable thank you hours or for the rest of my t think your honor may please the court the more correctly construed the broad claim term application program and correctly rejected or randy's attempt to artificially narrow it in particular the board correctly found that the broadest reasonable construction of the application program is does not exclude so called subsidiary programs nor does it encompass only programs that satisfy randy's checklist of features and critically the board correctly found that th uses the phrase application program so the case turns on the meaning of the claimed term application program that term doesn't appear in the specification second none of the features that randy is talking about already has a checklist of what program has to be in order to be an application program and ask you have to be able to open it by double clicking it has to run in a separate window and it has to run asynchronously critically none of those features is even mentioned in this nice occasion one would think that if the inventor had intended to limit the broad claim term application program through the specification one then mentor would have used that term in the specification and if he and had intended to limit the term to the use common features of the those features would have been discussed all the examples of microsoft word and microsoft outlook i mean those those would all satisfy those criteria right those arguably would satisfy the criteria but none of those features is mentioned and that's that's critical because of course under philips  it's impermissible of course claim terms are read in the context of the specification that's always the case but it's impermissible to limit broad clean language to the common features of the embodiments and that's what's happening here and none of the future so even full stop what a ready is trying to do would fail but particularly in this case where one none of those features is even discussed to where the claimed term is not mentioned in the specification and three where the specification as the court recognized a standalone it has some separate identity and i think this is best to know what you mean by stuff no i think i can show that graphically to you if we could separate parts of the ram for example do you mean that they have to be coded separately they were written at different and this is the domini system the entire system is graphically displayed here and you see if you look at the bottom left corner you have an operating system thirty six and then you have a number of programs all under the number thirty seven you have thirty seven a the word processing program thirty seven be the spell checker program but the seven c the grammar checker program and you go over to the right thirty seven d application program number four thirty seven eat application program number five so application programs one through three are the word processor the spell checker and the grammar checker what a rent he is trying to do here is in a sense draw a line between thirty seven eight and thirty seven b and say well under domini the word processing program is an application program but for reasons not disclosed anywhere in domini everything on the right of the line thirty seven b and thirty seven c are not application programs the board reject th understand that that is the fashion all component of what domany discloses but going back to claim construction what does the board ruling by intend to right well it's critical to point out one that has i don't care about down was that application program excludes so called subsidiary programs or put another way that encompasses only programs that satisfy this checklist of common features from the and document that was the only argument that are ready to vast before the board it's the only argument that it answers here about why the prior art did not disclose and i think it turned into my question at some point yet you wanted the court didn't elaborate the p t o didn't the board i'm sorry didn't elaborate on this phrase independent executable but it becomes a parent when you read the entire opinion what it meant and it read it in the context of of the prior art and it's permissible to look at prior art when doing clean construction and it looked at two things it looked at the domini graphic and said it showed that these are all separate programs they all exist at separate places in memory and on the hard drive and then on the facing page eight thirteen it recognizes the court has recognize that these are all labeled application programs and then for when it was discussing hockey move it the court recognized that aka move it can run in an application independent mode meaning that it can run with any number of other well i think it would have to go back for the board to evaluate under a proper claim construction but i don't think there's any basis for that here because i get the critical issue was whatever the affirmative meaning of application program was does it clued subsidiary programs that was really the only that was the nub of the issue before the board that's the nub of the issue before this court the board explained at length why that was incorrect because it has no support in the claim language and has no support in the specification which doesn't use application program which doesn't discuss any of these features and it has no support in the prior art which is a permissible source of extrinsic evidence when doing claim construction which clearly and  prejudice from the board's construction putting that aside i think it would have to go back because it's not at all clear what are in the means by this idea of a preexisting relationship and i think there's a very strong argument that prior art would disclose  associated even in that sense for instance the domini grammar checker one of the examples we talk about in our brief recounts recites an example of using have when really you should use has the grammar checker alerts you to that i would suggest  right why why the why the part wouldn't know a thing but putting that aside i think that the words construction of associated with is quite clearly correct it in it's not a technical term it just means connected or related to correctly spelled version of a word those things are associated with are related and they're connected i mean where can i ask you to go back to independent and execute of all assure second because i i'm still struggling a little bit with this do you believe that the board meant independent executable program to be the same as independently executable program or do you believe that the board drew a distinction and adopted a different claim construction patent he wanted i think the board did consider did adopt a different claim construction i think already would lose either way but i think it's critical to point out what happened here which was in the initial decision the board said we construe it as an independent  twelve the board again says it's independent executable but critically the senate right before that is patent owner has not shown that the broadest reasonable construction of application program excludes subsidiary programs we determine that application program is construed as an independent executable program the board obviously didn't perceive any dissonance between those two statements and there is none and all the board was that cute but i do and the reason i do is tell me how we spell checker is independently executable outside of the word program well that's not that is not what the board meant by independent executable it could not have meant that because it had just gone through page after page of rejecting that very interpretation of application program keep in mind judge more than that this independent executable phrase does not appear in the eight five four perhaps now but that's the construction they adopted and so  of law you haven't appealed that construction but no the construction it was it was the construction was in two parts it was that it does not exclude subsidiary programs and that all it requires is that there be an independent execu program and then it this in light of the many and in light of the figure that we were talking about before showing that each of these programs occupies a different space on the hard drive of different space in memory they're all called application programs there is no support in  nor is there any support in the specification for this idea of subsidiary programs being being excluded or a requirement you have to double click on it in order for it to be an application program i agree the boarding the points construction includes both parts i mean i think that that's in the most accurate reading of their opinion i just am trying to figure out what they mean by independent and certainly they mean independently executable you said and you're either circumstance or ending loses if the board said the construction was independently executable wouldn't you agree that a spell checking subsidiary program is not independently executable no i wouldn't agree judge more i think it's still it's still runs separately that doesn't mean that it and that it runs by itself in the sense of double clicking it means it has a separate identity it performs a different function the word processor can work without the spell checker so i think  it right independent of the word about well if you look at it domini you click on it to run the spell checker so the user does execute it so i don't think that's it just means that it runs but even only click on it with in the program that's that's correct in and it is expressly called an application program in the domini patent office so i think it's critical to point out here that this is a broadest reasonable construction case that the term at issue is application program that the only argument advanced by are ready below or in this court for why the prior art did not disclose an application program was that application program excluded subsidiary programs meaning that it only includes programs that include a checklist of features interestingly the ords construction of application program as failing to exclude dependence of city area programs first was this decision so in that respect this case is similar to sas institute versus complete soft l l c decided by this court on june tenth in that case that remained was earned but in this case we have a definition that is self contradictory or email and does nothing when the board got the claim construction so very very wrong  application independence this is how commotion macaca moment you explaining it and the board just got it wrong application a dependency is the ability of the same word completion system not application program the same word completion system to work with several different application programs such as it word processing program and you know program a spreadsheet program and so forth and we have talked or levy's testimony that in those contexts for sure it continues to be the work completion program a subordinate the pendant subsidiary program so nothing's changed the board just got it wrong so do you agree with your friend on the other side that as it relates to th associated that to the extent that you complain about or its construction you waived any ability to would ask us to disagree with that construction because you didn't raise any in your face upon which to conclude there was any prejudice and we address this in the real primaries and once claim constructions had an issue of course since prejudice because you can find that though not necessarily a lot of times alternative claim constructions still lead to a conclusion of anything to say that it under my alternative construction there would be nothing to space i apologize if the court could infer that the reason the reason we emphasized the construction associated is because we felt there has to be a preexisting association and again if one looks at the context in the specification of course in the contact management system  word to complete or a word that maybe is misspelt they don't exist in the database from the beginning and the pope purpose of the head lawyer technology the whole purpose of the technology here again is