is it reads the briefs and i'm always amazed at that how many different ways lawyers can come about saying the same thing a multiple times thought i'd throw it to you first to see if there are any questions that are burning a hole in your head that you'd like me to address markets process and fight but in some ways that that sort of requires us to put on blinders and assuming that we disagree with that process oriented argument and think that where it's pretty clear on its face with circumstances before you render a determination in that regard that the procedural history of this case the judge the broad had was that there was no discovery there's been no and we had no feedback so i would understand what does any of that have to do with whether this identical issue was previously decided by color the id issue that in my view whether judge krieger in colorado had she been had available to her the reexamination history would she have had to consider it as a part and parcel of her claim that and the reason i'm reluctant to enter into that debate because i don't want to move my client into a claim construction analysis in the second in the second case prematurely and what i would have to do is i would have to pointed to the the additional diagrams would choose obviously seen from from the crease the additional language from the reexamine history which you've obviously read but then the interpretation in the meaning of all that within the context of the new claims is something that would also be subject to potentially expert analysis and then to discover sign language that we're talking about right how i understand you're at this to go there but i think you can too well to be perfectly honest the addition of the term microprocessor in the in connection with the claim element that was the subject of the claims of struction the word aside from the other words and the other limitations that were added here is something that would have to be considered and that the premise of the colorado court expressly included the former claims fifteen and court dress for science leave that issue part of their analysis right so how does the inclusion of the microprocessor claim limitation in new claims thirty three create and issues that wasn't already resolved by the california or the colorado it's a very good question answers that in the new clean thirty three the micro present microprocessor edition of that word microprocessor from the expert in the reexamined didn't specifically address the use of ram he did very specifically layout the ram within a microprocessor as a part of control circuitry so what we're doing here is we're doing  defacto clean construction of this new claim thirty three which our position is that the judge in golden bridge said we'll have a claim construction and judge sobrante if this goes back to him can i ask you to further clarify because i don't and need to understand the difference you're saying exists from a technical capacity i don't own claims fifteen the claims new claim thirty three incorporates the term microprocessors part of control circuitry and the the diagram that the expert at re exam introduce showed the microprocessor and ram as a part of the microphone functionality so it's a logical a reasonable and i don't want to go into clean construction on this term at this point because i think that was a problem down below it is a reasonable assumption reasonable conclusion to believe that in the re exam the examiner considered as a part of control circuitry now ram is involved in this microprocessor that was not so clear in in the in the former claims one nineteen fifteen it was not so clear and judge krieger was actually if you read her and i'm sure you have disclaimer whether or not rahm could be involved i don't think she reached the level of disclaimer but generally your deposition is generally correct that she concluded the ram was not involved mostly from  the the statements of the testimony of mr nourse at that plane construction proceeding but that also highlights the fact that that was a full plane construction proceeding where there was a detailed analysis there was testimony taken and i think  different analysis but that you left the so memory limitation in there right now article regarding the word soul memory is still in there yes and it is generally at the heart of what we're talking about but a new claims that have nothing to do with what was a subject in the in the in the first case and then come before us and say look we have a real germination we have no language for you to fix the entire claim and therefore there is no collateral estoppel i hear your point but ever specs we disagree and the reason is that if you look back to what the judge didn't of the reexamination and the filed history that's newly created and any new claims or any new claim terms that are inserted in connection with the administration in the analysis of this case through of there was at least some mention some connection and reexamin to the new term language going back to the to the term term soul memory and that didn't happen there's there's just not than there that i saw that would lead me to believe that the sole memory was even even discussed or even present the word itself unfortunately my view was not addressed or modified in the reexamination history however there was the addition of certain elements in the claim turf undisputed that the use of the word microprocessor necessitates grammont nor is that actually technologically accurate well it correct but but they the diagrams that were submitted in this particular case in support include a microprocessor that has an element of ram in it and so that's why from the undisputed sun the speed of my point of view under the facts of this case but the microprocessor subject to the re exam involved ram and my time is almost up yes we should save some for finally but i'd like to make one point ok that all of this is very that is very appropriate for the seven seven four but i think it was completely wholly inappropriate to extend the limitations of the want to wait and for the bench that here with me today is the kevin o'brien who represents pentax as well as hector rivera who represents go pro their designated myself to argue for that case as well as the states where the court's convenience  isn't it true that the approach service approach isn't valid or is really better practice well i think it's not a matter of better practice i think it's a matter of what what the law dictates the district court was entitled to and accurate assessment as to whether there was anything in the reexamination that would impact the litigated issue that had been fully and fairly decided and as was indicated earlier these proceedings in colorado w leading up to the market proceedings in two thousand and eleven to extent of testimony and of documentation regarding the microprocessor based system that they tried to convince the court in colorado to have a including any reexamination history track well that's correct you do need to look at the entirety of the record but it is also correct that in ohio willow and in the aspects i wear cases you had a justify here the one awaited unequivocally not related just because the specs are similar there's some overlap in inventor ship do you know what a quagmire you would create if said now we want district courts to assess the extent of similarities between patents and or overlapping inventor ship or otherwise and then we're going to create collateral estoppel of sex based on that rules quite clear identical and well and we have a very narrow situation here which is somewhat unusual in sense that the one o eight itself demands that we consider the issue of the seven precise and to think about the exact matter that you're claiming right now these are the first of all the the disclosure of the specification not just the priority section reference of the seven seven or patents incorporated for the purposes of limited to flash memory largely on the disclaimer of the statement made during the prosecution history not on a disclaimer found in the specification by that car for example so i think that the fact that they incorporate the spec of the seven seventy four doesn't really help you there even if they incorporated this that with regard to the so limitation because what seems to me to be a driving factor in the colorado disposition was the statement of the interpretation different unrelated patent doesn't feel right it doesn't feel right no i would like collateral if not i i i would disagree that it is that it's not right because what we're trying to do here is to prevent people from reliving getting issues they have fully unfairly litigated and when this patent is deferring to the invention that is a seven seven four this been fully and fairly good on the issue of the sole member limitation it would be inconsistent with the desire of the courts to prevent repetitive of repetitive litigiousness on the same precise issue when you apply the ninth circuit standard terms of whether this is necessarily the cited family differently there is a presumption that we don't like them and turns on all the intrinsic evidence as well as any and relevant acts of government and so what you're asking us to do with them is to essentially in the context of fact that they copied all virtually word for word same relate to the soul memory limitation there is no written support in the one or wait for the so memory limitation that is not directly from seven seven four it says in the discussion clear that there's no insubstantial there's no substantial change in the claims scope at all when all you do is take dependent terms that are already in the dependent claims and then move them up and become independent claims if it doesn't have a different claim scope and  empty for the reasons that the panel discussed earlier with respect to the constraints of every examination but beyond that this is ultimately the greatest example of the effort to relive the gave you  they want to now relive again everything that was before the colorado court and do it again with respect to terms that have not been changed as this is a matter of do we want collateral estoppel to apply to prevent a discussion of microprocessor only in the context of control circuitry the drawings that are attached to the back of a of a of declaration of the submitted by the expert if not in the declaration it's just attachment in plus the court in colorado ruled that in so far as these pictures hold ram or there's any mention of ram in the if it's the microprocessor that does not include ram in other words one of skill in the art i think the way the court put it one a school in the art flash memory or ram known if if if you look at the prosecution history it's just like boom engineering where they they brought up the dependent claims of the furnace and the the radius it  bring it from the depending claims to the independent claims does nothing respect the claim scope thank you very much then there was a lot of discussion about subsequent it had that had to do with another topic but if i can leave the court just one point yes i can i can understand the court's  concern over over this particular matter particular since the zach words so memories fill in this patent but i want to just draw back to the essential  least in my heart of hearts when i look at this i have to sit in judge krieger's seat and who had the first opportunity to do can i construe these claims and say if i was judge krieger would i have considered or had to consider this language and the answer is yes because it's part of the re exam histories intrinsic evidence and and the diagrams and that would have had to consider it and then number two isn't relevant well i would think it was would have been relevant to judge previous because she was clearly in the sense on this issue of ram being involved or not involved and ultimately went the route that that it that it was not involved in  and because she would have had to consider it because she didn't have it before we can that say today that the issues presented to judge her bra were identical so the issues presented to her so to preserve the collateral estoppel doctrine i would