decision out of the district of delaware purchases on the internet or so from some other merchant and having the charges for those show up on your phone bill rather than having to provide your personal financial information to a merchant to my i may or may not know this gives advantages to the consumer because you can keep his private financial information private and also allows for the merchant to be able to customize the billing and the  it in that are not claimed they claim is directed towards figure three but they specification and when describing figure two it includes information that is also relevant figure three so i can't say that they're completely unrelated but there are elements of figure two that are not claimed by that point thirteen there's nothing in any of the figures that shows anything that that doesn't have all involved right well it that you got to answer if by a telephone call you mean something that doesn't have a voice communication and in which the user does not participate it's there is a telephone call made in all the in the embodiments that are shown in the figures that's correct but it's not  traditional telephone as you a telephone call as you and i would understand it a telephone call that ish of it and all of the figures are at the bottom and that's basically when you have this call manager that calls a paper call number i mean  that's that is a telephone call and there is a telephone call made to a paper call number in the preferred environment that's correct but the telephone call is is only the communication data communication is it is limited because it says to be originated from a mobile device so is it is this some kind of communication so only limited to that from the mobile device  claim thirty we're talking about a communication from a mobile device to a first destination and you know that we didn't get it in claim can star so we can not get into our mobile devices the specification makes clear that there's a construction the communication that we're talking about include electronic communication we're talking about including thirteen is not the communication from the mobile device to the caller manager it's a communication from the mobile device to the first destination it's the way that the information about the user gets from the mobile device to the remote processing system so that the information about the user can be used to but it  shows why claim thirteen was allowed for or that there was any reason independent of the reasons for for allowing claim one in the in the one three three patent prosecution there was no discussion of prior art there is just examiners listing of the reasons for allowance and that it reasons included the fact that there's no voice call and there's no partition or there's the user's not talking about his purchase that from the invention which doesn't include those items so i think the if you look at the examiner statement for allowance what he's doing is reflecting the fact that this is not a traditional telephone call to a paper call service it is in fact as a person or near skill in the art with understand it after reading the specification the specification doesn't describe anything that's anything other than communication of data similar to it you can use a telephone telecommunications network to send a text message and you still use the same systems and that is for placing routing telephone calls but you're not actually placing a telephone call you're simply sending data and if you look at what's described i written description of where the billing triggering of that is anything there's a nothing other than a call that's described specifically but the i'm that the systems that are described or are used for sending electronic communications and that's the only thing that sent in this call for say it's not it's not a telephone call in the sense that you're using it like we would use a telephone call there's a call made and these systems and methods are used such as s s seven to send text data or of to make it and they did that but really this is a question of whether there's clear disclaimer and there is no manifest disclaimer of any scope of the of the electronic communication and it is that's usually used when you're talking about comparing a dependent claim to an independent i don't think it's really a claim differentiation argument in that sense it's more of a claim differentiation argument in that they use two different words and so the presumption is that those two different words have two different meanings and it's pretty clear i think in ordinary parlance one would not compare an electronic communication to a telephone call it's much broader than that and in fact the only the only record evidence here and it's on rebut it is that a person of ordinary skill in the art reading this specification would understand that the electronic communication that's being described would right let's start with when we sell it kind of communication i just seems to me that just thing meaning all that it would encompass many different forms of communication a telephone call different type of symbols that whatever construction or electronic communication to one that originates from the mobile device or all of the embodiment share are they so limited is there is or is there any way that this path will work for the call it resets the be an eye to the number for the billing number of the purchaser and makes the call itself that's the spoofing environment but it's not claimed it happens to be shown in figure one and in figure two but it's not what's destination of pinning billing information so there are some differences but that's very common among independent claims to try to claim essentially the same thing using slightly different language and you know really the question here is whether if you view the claims in view of the specification a skilled artisan would understand that the electronic communication is a phone call and people call a number whether you view this is a philips issue of interpret ing a seemingly and us claim or a disclaimer disavowal it's the same result because of three things first of all the president mentioned that in which the patent uses the word present invention about twelve times for them and just outright unequivocal it says four times that the numbers or services every single time it refers to the present invention is a bombing a call to a people call number service the second thing this court looks to is the problem to be solved and how it's to be solved and that's in the background of the invention thanks so plame thirteen comes and later the fact that that plane thirteen might have been conceived of a little bit later doesn't mean that specification doesn't ultimately support something slightly different that's that that is true but the title to the abstract to the summary of the invention to the disclosure each a monument that's the only thing this teaches it uses the words present invention it describes the problem to be solved is the inability to build it using is a good example of that because it sends data but a lot of what my friend has been talking about has been signaling methods and all of the signaling methods described in the patent relate to telephone calls first of all the a and i is only a telephone call phenomenon so all of the signaling that they're talking about is a telephone type signalling whether you're using s s seven or something else it is still telephone call signaling he mentioned text messaging there's no discussion whatsoever of text messaging in this patent the expand the scope of the entire patent really by using generic language i personally believe that electronic communication is ambiguous but even if you don't believe that if you view it as a disclaimer disavow issue we have words of manifest restriction in exclusion here because we have present invention language because we have language where we described i what the invention was trying to accomplish the problem to be solved and how it was solved with only solved in one way and every embodiment in the pattern described most three things together there's only really one conclusion went to school in new york or draw attention to me that were sort of using the tools of claim construction to do it task for which they aren't really very well  that we don't do this on a regular basis but this problem and you've alluded to it now seems to me to be that they came in later with what is arguably new matter and threw in a claim that isn't supported by the rest of the pen it's that certainly consistent with the way you present the case all of that unfortunately for present purposes is an invalidity point so it's let me put it this way suppose that they claim thirteen was not limited in this way then all your arguments about the specification would fall it would be ineffective and i would agree with you that if the expressly said for example a non telephon language but also prosecution history in which the head and he's told the examiner that they were trying to broaden it out and the court said it wasn't good enough because you had very clear language in the specification saying the president mentioned relates to a fuel filter and so your fuel injection system components is limited to  fuel filter and in this case we have that in spades we have repeated mentions of the present invention limited to phone calls that's all they describe it's all they've claimed i think if all you're doing is making a generic statement communication and the court the student electronic communication to be a telephone call but it turned communication i don't think it was not construed and that one wouldn't say that that can be any type of electronic signal no i think your honor that the the communication refers back to the previous communication discussed there are two communications in this pattern the first is to call a manager to say hey we want to buy something and here's how much we want to pay for that now deal with the internet in any way and it means exactly the second communication is always a telephone call what's going on here is they're trying to use an existing peeper call infrastructure this is it a nice way to nine hundred number it is our discussion today yes it is limited to that we present that was the invention they claimed that the problem they claim to have solved and how they saw that all involved making a telephone call to  peeper call number they didn't want to invent a whole new infrastructure they didn't want to use a whole new signalling method they wanted to use an existing method and yet had a way that you wouldn't have to use your credit card number or something or other things that might have some security disadvantages but the the supposedly ingenious solution was to use this existing one nine hundred capability and that's what this patent describes if you read it from start to finish that's the only thing it's ever talking about that's my invention that's what they're talking isn't isn't clean thirteen actually refers to billing via a phone yes like yet it doesn't refer to a phone or call anywhere else is it a little strange to have to have the phone bill reference for syslog in there but not refer to all call elsewhere and claim things i don't think so because what they were trying to add in that point was that would go on to a telephone bill that that that somebody would be getting from their phone company and in fact i think it supports the idea that i going to your phone bill it's not surprising that it's going to involve a communication over a phone network and you don't absolutely have to do it that way but it's certainly i think consistent with the idea that they were trying to build to a phone bill a communication that's made over a paper call service and that's that's how it's done you call up a paper call service and it tells you it can either be by the minute or by the charge it goes to the one nine hundred fortune over that rates and goes it and it ends up on your phone bill so i think it's entirely consistent with the rest of the patent the only difference here is that they tried to broaden out some of the language but i think this court's cases have said i think something like ten or twelve times that claims can and are in large what is patented beyond what the inventor has described as his invention there may be an exception to that where somebody is expressing i am not claiming what is in my written description but that's not i'm sitting on the fence on all that you know or whether this claim addresses both think two different types of communications the latter one the a call from the call manager the call manager to the war in eight hundred number that's one and i believe that's a telephone call but there seems to be another form in the remote crossing we know them we know the device can yes and so we know that the device can be a a a and i pad yes the remote processing is i think called call manager system but basically it's a way to say something's got to tell that that that remote system that column editor go ahead and make the call to the one eight hundred number yes and  response to that request information which says i want to buy something and i want to belittlement to this phone number and then the common injure hells the mobile device to make a call to a certain number and then it's rated and build of ways you can set this up you can send it over one network multiple networks you can use a variety of different signalling mechanisms a variety of ways to rate and build the call all of that's true miracle all of this is describe paper call service and that's what they were trying to do throughout this patent and there is nothing else described as a th telecommunications networks and both of which provide data to the other side and not a voice communication did you ever suggest a judge enters the perhaps claim construction wasn't the appropriate vehicle or an appropriate lens through which to examine the question that's really being posed here i think to not come up in the oral argument or  they may that ever might be a problem later down the road that we have to address and they have to prove by clear and convincing evidence as it relates to new matter but that's not for true that well it's certainly something i really thought about it a jury member if it came up at the will of four you have to follow that embodiment and the only language of disclaimer the only language of disclaimer that we've heard is this president vention language and it says it does not say the president pension is limited to a telephone call it does not even say the present invention is related to a telephone call what it says is the as an invention is related to systems and methods for making a placing telephone calls and in this case it's very different than the h honeywell case that the president mentioned is related to a fuel filter it did not say the present invention is related to systems and that it's for filtering fuel and if it hadn't done that then i think the result would have been very different because that honeywell was trying to say it's broader than just the fuel filter it in fact involves all the systems and that it's for filtering fuel here where involving the systems and that is for making a telephone call but it doesn't have to be a telephone call because the only information that's described in the specification the only information that's transferred is electronic communication of data center instead of your last statement he said here we're dealing with let's just assistance for routing and placing telephone calls made doesn't have to be a telephone call right fit any more than the systems and methods for filtering fuel is only the fuel filter there's other things in that system we're talking about not just placing a telephone routing telephone calls but do you mean to say that there need being no telephone call at all that's that's correct or may not be and therefore that's not in your view inconsistent with saying the system and method for routing and placing telephone call no because i can take out myself my mobile telephone i can make a text message it uses the same systems and not that it's a placing a running total phone calls but it's not a telephone call it's a text message and the only evidence this court's cases require clear disavowal there's no advantage to using a telephone call over a text message there's no purpose of the invention that's not solved by doing a text message instead of a telephone call