with the first case number sixteen ten fifteen and post technology against microsoft corporation this year isn't microsoft called the microsoft kinect rather than using a joystick to control what was happening on the screen there's a camera in the player moves within a particular area and there is a picture of the avatar on the in the pattern that is the same concept when when you move your avatar moves the way that these games work is different manufacturers like microsoft and electronic arts and others will make a game that comes on a cd you buy in best buy and that game has its own parameters like how big is the space that you're allowed to play with it some that some games require a big space some games require small space different sizes  specifies all of that when it leaves the shop so that's the background the errors that the court made in this case in our view principally and start with claim construction there really both claim construction errors i want to start with the first error and that is that the court improperly read into the word defined physical space a limitation that you have to define that space before you even turn the system ott and that's because the claims really tell you why you need to find physical space we look at claim one claim one is on a once in four if you want to follow along but basically what claim one serves is that you continuously track the overall position of a player in a defined physical space and then in real time you translate that position into a corresponding position of the virtual player in the  the premise is something that we disagree with we are not at all asking for this term to be construed more broadly than how the invention is described and that's a very important point it is absolutely true that if the invention is describe narrowly the claims ought to be construed there a yes no problem but in this case the invention is never described in those narrow terms nor there is a lot of prior art but nor was the prior art ever distinguished on anything having to do with it  slice claim that talks about physical things yes i mean the space is physical there's no question about that when when when i play the connect i can play it here i can play it in my living room i can play it outside when i'm playing it it's physical when you when you look at of course that it was opposite a physical space truck or it was wrong it's absolutely physical space when i'm playing this game and this is why i wanted to focus on the climax but claims talk about tracking a physical location of a player in the defined physical space the defined physical space must be physical at the time the players playing it at the time that i'm playing the connect it's absolutely physical i thought you can't play the kinect in some abstract way you physically have to be in front of the camera it's physically tracking where i am playing using a camera as i move around in my living room that's physically determining where i am and then translating that into a virtual location which my play or whatever that's absolutely physical now the reason that the district court the claim construction problem is two things first the district court totally ignored this towards precedent that lexicography there has to be a definition explicit or implicit but a definition with this is valid it's got to have a clear disclaimer or distinction or my invention is this or it's important now i want to look at the specification because none of that's there all we need to know luckily for this appeal for this issue everything you need to those icon that there's a lot of good stuff in the patent but this is all you need to look at for this particular issue a one fifty let's start from the top line eight this specification tells us exactly what is meant by a defined physical space a defined physical space maybe any of vailable area indoors or outdoors sufficient size to allow the player to undertake the movements that are necessary so that's the first thing it says which is by the way exactly where our proposed definition fellow came from we just said that's what it says it defined physical spaces it then says on line fifteen it will be appreciated that the system may be adaptable to physical spaces of various sizes so when you have the system in place you can adapt it you can say ok for this game i want to have an eight by eight area ok for another game i want to have a twenty by twenty area because it's a game with multiple players by the way that's exactly how the commercial embodied that works if you look at a two four seven three we've got a brochure of our device it's exactly how it works you set it up and then you can have a game with a small size a game with a large si absolutely but what i've just described i'm reading from the specification it absolutely describes how to have a system where the physical space can change even for a given system of set up a system you can for what needs to be provided in order to have the scope covered by the clinic certainly true on the other hand the the inquiry is not due because there are enough written description support for the claim once we construe it properly the inquiry starts with according to foreigner and hill rahm and all the decisions that we cited in that regard in our cases the inquiry is what is the right meaning of the claims in view of that's a separate analysis once the claim is construed then we ask the question is there enablement and by the way the record has no evidence because we haven't reached that stage of the litigation there's no evidence of whether or not that is unable to not you know i mean this is evergreen and as a result it's not appropriate for this court to say whether or not it's unable because the record hasn't been developed that's a that's going to come later in the litigation once the claims are construed at this moment in time the question is how to construe the claims and i go back to the premise that this fit that this court sets out which is you can only limit the claims of those two circumstances now the district court relied principally night but i'm a little slower in the gulf thankfully it's kind of a it actually see clencher way follows my argument so i'm just going a little bit further down in the column line twenty eight i think i may have said column twenty that might have been the confusion started out that you know control of it so it's talking about a particular type of sensing system called the dinosaur system and the judge focused on the language of line thirty that there is a mast centered laterally with respect to the defined physical space at a distance officially outside the front boundary to allow the sensors to track the movement that's really what the district court latched onto over and over and over again and there are two problems with that first so preferred about it it goes on to say another suitable tracking system is the mack reflex online fifty two and then it goes on on line fifty five and says you can use electromagnetic acoustic ultrasonic on column ten as i mentioned there's one little thing on column ten column ten says you can use a camera with no peak so there's all kinds of different tracking systems and none of those have any language like what the district court latched on to but there's a second really serious problem with what the district court did it misread even that sentence in the sense that i quoted online thirty of column nine that the podium i'm standing before and i'm the mast right now i am centered laterally with respect to this podium and i'm sufficiently outside the front edge of it such that i can see that what isn't said is which one came first was standing here and did someone move this podium in front of me or was the podium here and i came toward it doesn't tell me because it doesn't care the claims don't care the invention doesn't care whether the defined physical space is set up first and then you construction would exclude the way that we practice these claims for years or so and by the way it would be an unnatural reading of these claims to even suggest that the way that this works is that somehow it requires a physical space to first be established and then somehow you've got to position the camera just right and align it and calibrate it just so it knows exactly what it's looking at there's no description of that in here and that suggests that the right reading of this is th patent specification simply doesn't care whether or not the defined physical space comes first and then the sensor gets there or the sensor gets there many define physical space to relevant and so under this court's precedent because there's no that this limitation is here or the prior is different because it doesn't have a pointing device those are the sorts of things you know in the symantec case there's this i think the language is byte protocol or something like that in and it was a lot of cases the tom tom case the info hole case we post cases thorn or hill run they have no distinction for those cases they try to distinguish two of them and they ignore the rest of the all of these are cases where the federal circuit has  not proper unless you have those that language in the spec for the prosecution history where you try we clearly evidencing this of al it's not appropriate i want to say just one word on  if i may before i get into my rebuttal time and that is we are very confident and right and been believe that we are right about the claim construction but even under the incorrect claim construction we submitted a declaration by iraq and expert report by our expert and it's it's at a twenty five ten to eleven you can take a look at it but we it's not for fun three we went through he went through the function the way in the result and he did the right analysis he said what's the difference between a system where you define physical space based on where the censorious versus a defined physical space in the real world that you then put a sensor that's the comparison and he said it's the same function it's the same result and he says what those are he says the way is slightly different because you have to translate the coordinates into a different system but it has no effect on any of the invention a jury should have the right to hear that and to make its own decision about whether or not that's the same or not so that's all i wanted to to start with a reset as to what the dispute as to the scope of this claim terms at the district court very clearly at the claim with traction state and again at the summary judgment the objections to the summary judgment stage the dispute was very clearly whether or not you can have a defined physical space that is simply relative to attacked well i i'm not sure that's true your honor because i think it was quite clear at the claim construction stage in the summary judgment stage that was the question but in any event that question the real question is whether it can be censure dependent or and used to be defined physical space i ndependent of the of the sensor and i want to start with the claim language has been a lot of focus on the specification and rightly so but the claim language of course should be the starting place and the problem with the construction that's now and in terms of the context of the specification and there if they were correct that it defined physical space could be simply defined in relation to the sensor you would not need the words in a defined physical space and claim one it that concept out what they are arguing is well of course any time you play a game with the sensor you're in a physical space you're either going to be indoors or going to be out there if you're always in a physical space that's certainly true that of course means makes  invent was you have a football field a basketball court a tennis court and he wanted to create a system in which you could have fidelity of movement so that you could put someone through training exercises and allow them to run drills and get better and why specification makes very clear it is to have that fidelity of movement so that you can have an accurate trading system as described in his claimed you define the physical space  its boundaries and you know within what context the person is moving in physical space and then you use that position and movement to translate to a virtual world to the virtual space so that they can then have the very clear right from the outset right from the field of the invention throughout is it the point of the invention is to track and determine player position during movement in a defined physical space that column line around twenty two where it talks about the tracking display system it goes on again to talk about how the purpose of this is to put a player through agility skill where you're looking at them in the three dimensionally defined physical space in which the player moves and again and again throughout holland again column nine through ten it's about the physical space in which the player moves so that you can track them in that space and then correlate their movement to the virtual space to put them through the tr from said a defined physical space may be any available indoor outdoor any available area indoors or outdoors of sufficient size to allow the player to undertake the movements for assessing the quantifying distance and time measurements relative to the player's conditioning sports and ability and then he skipped down a couple of lines and omitted the sentence which i think is important the sentence he omitted says a tech typical physical space may be an indoor facility such as a basketball crime shouldn't be limited to the preferred environment you that's what he says around here but it's the only embodiment and when i when i was listening for and i've been listening for it from the plane construction hearing at the district court in the summary judgment context of the district court and throughout the appeal briefing and again today was something anything that they might be able to point to in the specification that would suggest that the defined physical space can be a nonphysical abstract  defined only in relation to the sensor they have not been able to point to anything close to that because there is no disclosure of that whatsoever the only thing that the pattern discloses quite clearly is that you have to have a defined physical space independent of the sensor then you set up the sensor track of the person in that physical space and that allow their movement to be correlated to the virtual space and i think an example might be helpful here let's take for example a tennis court allow you to do is know for example when the player is approaching the net no when the player has stepped out of bouncers left to the right to the side in mr rosenthal's knew the world you would have a defined physical space in which the player moves instead what you would have is simply a sensor and any time the person stands within the center there in this defined physical space what they are trying to do is collapse the sensor with  concept of the defined physical space from the sensor area or the tracking volume and that's a column ten line twenty nine hundred thirty four in that sentence get it in to be sure it does say in a particular environment but my point here  it uses a different term for that tracking volume that's a different concept they are now attempting to take to find physical space out of the claims and instead substituted with this concept of tracking volume and that's in is the legal framework within which we're operating there's been a suggestion by mr rosenthal that the only way in which somebody can depart from the plain ordinary meaning of the claim is that there's  disclaimer and i think the problem with that proposition is it is completely afield from the facts of this particular case i understand why mr rosenthal would like that for the for that to be the law and why he would like that to apply here it doesn't apply here for two reasons first there is no plain ordinary meaning of this term no one has proposed a plain and ordinary meaning of the five simple space that was not there construction below it's not there construction now so the idea that we should start with some generalized plain ordinary meaning and then look for a disclaimer is inexplicable here the second reason it doesn't work of course is that the plain ordinary meeting has to be looked at in the context of the patent both sides agreed at the district court that the specification was the best evidence on the meaning of the defined physical space that was the evidence both sides point of the district court judge to he looked at that evidence he looked the column eight nine ten the whole patent all together and found that the meaning of the term while it might not be plain from just the words defined physical space in the context of the patent is plain and is that it has to be a space that is visible and that is defined and not simply dependent on not this case there was no expert evidence of plain meaning there was no suggestion from impulse as to what the plain meaning was both parties correctly pointed the district court to the specification for guidance on what the  and the district court correctly analyzed the entirety of the specification and claim language and made a determination that it simply can't be this concept of what the district called called a relational  physical space is a physical space it has to be a defined physical space a relational or abstract space that is only in the context of and dependent on the sensor cannot constitute a defined physical space within the context  thank you i have five very quick points but i might not be able to get through them all but i'm missing if i can first i didn't understand my friend's first point that this wasn't raised below on a seventy two it's the court's recommendation on claim instruction it's pacific which says the fine physical space means a space that is known prior to the adaptation of the testing and training system that is the issue it's a second she talked about the claims the claims would be meaningless under our construction absolutely not true we i loved her description of what the claims are all about it's absolutely right you have to have a defined space it has to have boundaries that's what makes it a defined physical space because you need to be able to know if you're near the edge of the space i want the avatar to be near the edge of the virtual space if you don't have boundaries you can't tell where to put the avatar if i'm just looking and saying i'm just looking for movement in my in my field of view that doesn't work we absolutely agree that you have to have a definition and the definition of that space has to happen before you start playing the game absolutely but not before you even put the sensor up in and turn the machine up and notably there was not a single word about why it's important to have somehow  defined before you put a sensor in third i didn't hear a single case cited where the court has limited a term to the specification without words that say this is important to my invention or this is how i'm defining my term she cited semantic in philips those cases don't apply some antic there were specific words the court relied on saying this is important to my invention to talk about the machine code column nine this is my fourth point she talked about the sentence that i did not address which was the typical physical spaces include a basketball court a football field things like that it's important to look at exactly what is said the says a typical physical space may be an indoor facility such as a basketball and handball court where of out a twenty by twenty by ten space can be dedicated so what it's saying is bring your sensor to a basketball court with enough space that you can play the game with it there's nothing in there that says but before you put the sensor in there you have to mark out exactly where that twenty by twenty spaces and then put the camera there and then align everything correctly it's not in there so that doesn't help at all the argument and the preferred embodiment she said there aren't any other preferred embodiments it says right at the bottom of column nine fifty two another suitable tracking system is this fifty four many other suitable tracking systems may be substituted including x y and z column ten line eighteen it will be appreciated further that one or more cameras or other image capturing devices can be used there are literally point is we are not trying to equate the tracking volume with the physical space the defined physical space has to be its own concept it's not just whatever i can see but it doesn't have to be defined before i put the sensor in place that's the point