are invalid at no point those doctor for to say whether he believes they're invalid under one hundred two or one of three whether they're anticipated by a single piece of prior art or that there anticipated by a combination of and so there isn't a basis in the for this report which is the only basis sustain a decision below of anticipation or obviousness if you then look at the meat of the report on the claim one that we're looking at which begins on a two seventy seven and runs to eighty two eighty nine i believe yes you'll see that he recites an element of the claim and then recites several pieces of prior art and doesn't ever match the two i think he just says saying and if you actually look at what the claims mean with the patents says the specification the patent it's nothing like any of these pieces of prior art let's let's go directly to one of the terms it's used in the claim application server what's your definition of application server ok that is a server not a second computer as in the as in the prior art that machine that can be taken over the machine service but only serves applications very critical of the these are not none of the terms and these claims are common terms of art including the very first term which says a security system level interface and a high level interface is a common client stationary there are building blocks that are then modified by further terms and so yes client station is but a client station as defined in the claims has other aspects to it as for site in the claims and so it becomes something different than your common client station ok it's a modified constellation if you will and it's important and it was important for the court below to actually do that claim construction before you can possibly apply prior art because what's done here as if you look at it is what forces says there's lots of client stations there's lots of servers out there look it's anticipated there are lots of communications look it's anticipated or it's obvious without analyzing what that means of course it would be if you take the superficial view but then the examiner never would have allowed this patent if that's the superficial view that should be given to these claims dr for so the claims play nothing other than having a client as you say and having a server somewhere else and communicating between the two and that's not what the invention is that's not what the claims have just this  came case came up before and what a controller is the court needs to actually look for bologna's to actually look at the pattern the intrinsic evidence and determine what this what this path means well again to be specific what i'm interested in knowing exactly which terms you've mentioned already application server as having a specific definition so i understand your position on that can you point to other with a high level application logic and the low level application was rick as well as the high level interface and a low level interface have specific meanings and the prior art the interface between the first computer and the second computer or the remote in the host from which whether called the prior art is an open ended is complete communication the remote computer takes over and has complete control of the host to do anything it wants to that's not a low level interface that's not a high level interface as defined by not just a completely open interaction between the two computers as defined very explicitly in the patent the low level interface prevents control of the server by the remote computer or the client station it also allows control of the peripherals to the client station by the server that allows for the server to serve the application to the client in this low level i e restricted interface without opening up its own operating system and in the control of the server itself so low level interface is a is a coined a term in the patent and needs to be looked at that way and it has a very different meaning than an open access system such as in the prior art where you can completely control the other the same as the high level application services it allows the server at a high level to make decisions as to which applications are going to serve to which client which application is not going to serve which client and which parts of it system it completely hides from doesn't allow the client to see and that kind of analysis is not put forth and forth this is opinion because it wasn't done by the core plough and wasn't done by citrix because when you do that kind of analysis you see that this that these simple programs of coast station or p c anywhere don't have that kind of sophistication they don't make those distinctions they don't happen application summary and the patent lays that out and shows where the other two systems which are the prior art fail to do that and you get to that description in the claim with the term application that's pretty much our entire position that you can't invalidate the claim without deciding what the claim means you can't just take a superficial look at it because if you take a superficial look at most claims you can always find something in the prior to superficially looks the same kind of thing words we've also pointed out several errors of law that were made in the decision of a judge including shifting the burden  also in the judgement on page three the court has it backwards they say that dr ford assumed and used a broad claim construction when he looked at invalidity and a narrow claim construction for infringement lapse that seal knows of wax you can't change how you read your claim construction whether you're discussing validity or infringement and that's exactly what the court admits that dr for test and on remand second point i'd like to address is citrix in fact did present clear and convincing evidence the claim one of the nine forty two patent is anticipated by the prior art that can be found in the prior art references detailed claim construction that can be fun at age thirteen of his report which at the appendix is page two zero four he goes through all of the claim constructions that he relies upon this court on a prior repeal did disagree with dr foretells his claim constructional controller and that was the only claim term that genuinely was in dispute below mr orange dean never presented any genuine dispute to any of the claim directions that dr ford has offered he didn't present below competing constructions of low level interface for example that comes up only in the blue briefs filed here what i would say specifically about the low level interface limitation to the extent the court does entertain that issue which in our view it shouldn't because it was not presented below but if you take a quick look at the claims of the patents themselves claim the nine four two patent addresses the low level interface limitation claimed for talks above wherein the at least one client station further includes a low level of quasi operating system for support g client station connections that's referred to in the specification as the o s s i interface claimed differentiation tells us then that's not a limitation of claim want this argument was never made to the district court because mr ornstein prior counsel never gave the district court an opportunity to consider it or an opportunity to citrix to respond to an argument that shows up for the very first time in the blue brief so distraction here on appeal and when you say this argument specifically which argument there is the argument that low level innovation i don't know if you know nothing about the low level right at the same thing with application server i respectfully take a different view from your honor about what the heart of the invention described in claim one is the heart of the invention is not a client server that provides only limited app access to the an application server that provides only limited access to a client the heart of the invention in claim one and if we focus on the claims is that the client server does not it has accessed part in it that the application server has access to the drives of the client that's a feature that's referred to in the prior art often as dr redirection or dr mapping so that the server can see the drives on the client so maybe i have a word document on my client but the application of word that i'm using is on a server somewhere else that server can see my drive and work with my word document and the server seems to be the essence of the  nt is denied access to the file system of the at least one application server that limited access by the client to the application server that comes up in later claims i certainly agree as anybody would have to it's discus application server has access to the drives boy if it can use data from the drives of the client but it does not permanently store that data on the application server so that data is protected the that refers to the at least one application program without permanently storing said data in the server device if we took a look at if we take a look at page two or seven of the appendix  that's the reach out reference right  cited to two thousand and eight right and if i can go to zero zero seven your honor page sixty six chapter six write the last paragraph that begins and ends on the page the sentence halfway through you can use remote control to open a host application and edit your files without actually copying the files to the host computer this feature can be useful if you do not want to copy i see of your file to exist on the host are precisely that limitation your own and with respect to your honor's question about what did judge jordan do below he made rulings about the claim constructions the genuinely were in dispute he made a ruling on control of this court disagreed he went back on remand and he found that to the extent a ruler can be a general purpose computer the added invention is found in the prior art as described in claim one he includes a very thorough analysis page five  opinion the middle paragraph the paragraph the second paragraph that begins he steps through the clients and talks about the features of the claims yes current articles this is what i take it to me this is where these features are found in the prior art he does that by looking at the fourth has reports and the blue brief says that we're test didn't submit a claim chart well he's got a paragraph in his report he's got an element of the claim and that's followed by a description of where in the prior art that element is found in the prior art and it's with citations so certainly he could have built that into a table and maybe we more conventionally would call that a claim charge but it certainly substantially the claim charge pardon me lines up with worn jeans claim one in exactly the same manner that ornstein contends citrix is infringement lines up so talk about the nose of wax that's exactly the nose of wax your honor you can't argue that their claims cover citrix for infringement but application logic and a low level up independent like just a high level application logic just word word one for word processing program the low level application logic is the pure printer driver ok so again the patent talks about word running on an application server being able to run the driver to print at the client that's described in the prior art as remote printing the monitor the driver that runs the monitor the application which is running manual host p c you see that your honor yes the last sentence however the host p c can disallow selected privileges based on the identity of the connected remote control p c user another instance directory access the host p c you call may have background file access restricted to specific directories the host restricts access to the directory list or in the directory access restriction option on the host if these contain a directory list and you can transfer move the leader files only in the listed directory and just for efficiency your honor i have referenced at page seven ninety eight of the appendix that at and is limited to that you know that they're still anticipation certainly absolutely right the principles of reference would be the one that starts on seven hundred or thereabouts argument and i guess it depends on how you characterize argument as the argument that we've been discussing right wasn't for the district court it because i am at the time one point and this is in the initial position to summary judgment right went right to its toward the end but the statements made the application server serves only upon the applications thereby inhibiting access to the command shell of the underlying operating system by limiting the client station to the just said there is some claim construction issues never identifies why or whether that matters doesn't say to the district court we have a dispute about this claim term you should find it narrowly construed and if you do the prior ar not disclose it never says that to the district court so the district court doesn't get the opportunity to consider the questions you just that doesn't reference to do the references disclose that feature citrix never get the opportunity at the district court to point out the cit ations that i just pointed out to this court so i don't think the argument properly was before the district court and what i would say about that your honor is from the district court's opinion we're from oral argument on this district courts said to prior counsel what do you think i'm supposed to do with an expert report that isn't rebutted mr ornstein never presented any evidence to raise a genuine issue of just material fact he never deposed citrix is expert he never presented a rebuttal expert reports he never presented an affidavit of his own disputing the contentions that citrix made about invalidity he never even cited the prior art to argue that it does not disclose features of the invention that citrix and its expert explained that it did so he should not be permitted before to do so here what was judged you were going to do with an unrelated expert report he was to do what he did he was t but the fairness and no opportunities argument because it turns the situation on its head six which is the one that moved for summary judgment and they have the obligation to bring to the court a complete claim construction and all of these recent citations that we're hearing for the first time on appeal that somehow go to the actual definition of what a server high level on the level is to say that that they the opportunity of the claim are their show and with the now we also because these citations that he's just cited don't actually show what the true meaning of the properly construed claim would be ok as pointed out in the has access to the show the server and then and then in some of the citations can decide which files and which parts may or may not be shared with the other half of the co session share but coach session program does have access to the show does control the server it's different again without an actual claim for structured is that different from saying that the host sessions allows you to use either the embodiment that has restricted according to the reasons the citations that are raised here can allow access or not access to certain files are ok but to do that procession itself is accessing the shell and the server and making the show on the server potentially accessible to the remote session procession if you look at the background of the invention explains the to restrict the client from full access to the entire operating system of the of the server is that something that is in  and if so why doesn't that we don't even your construction plan one way because the restricted access is so critical to the adventure there is a separation between low level and high level functioning or having a server and then a