quote i'd like to address the commission's holdings regarding point thirty four and claim thirty five first of all the commission's failure to find infringement claim thirty four is clearly wrong the commission explicitly found that the eighty eleven forty three forty six and eleven fifty one have a first and second state of operation indeed the commission thank you and the same page of its opinion j one of three at the top of the page commission also found that the eight t twelve sixty five has both states of circuit operation but at the bottom of the page it has a contradictory finding that there was no establishment of the second stage operation and the commission also explicitly hell they claim thirty four does not require a second or third circuit limitation as claims two and three do nevertheless the commission found that claim thirty four was not in french wide the eleven forty six eleven fifty one and the twelve sixty five in the case of the eleven thirty six and eleven fifty one it appears from that proof that however contradicts its explicit finding that eleven forty six and eleven fifty one have a first and a second state of operation the commission's newly minted argument is also procedur trial showed that a t a i itself practiced all the steps claimed thirty four for each of the accused devices for example at j thirteen forty five through forty six j thirteen fifty one for fifty seven j thirteen sixty one for seventy five dr pou drama explain the circuit operation and the very l l elements of those circuits devices in that testimony dr prodrome referenced circuit diagrams the data sheets for those appearance parts he also explicitly discussed both the first in the second states of operation in addition to the other limitations apply thirty four more over the en route but it testimony of heaven d'angelo eighty eyes thirty six witness was admitted into evidence and that showed that eighty i itself combined the accused chips with the external disk components described in eighty ice data sheets and used them in the united states lee that that argument was denied by the commission when it changed the ale chase plane construction now the commission's finding that rule that claim thirty five is invalid is likewise internally inconsistent on the one hand the commission found that the accused advice is the anticipation this is the anticipation of them at seventy two your honor so in the one  exact same way by looking at the voltage and that was clear from dr ways testimony a t i s expert so you can't have it both ways either you have the unrebutted evidence that linear reduced to practice the invention prior to the max seventy two being available and the products are infringed and the claim is valid afterwards so the commission found only one of the four choose products to be infringing and has been appealing that and that basis for the appeal is therefore claim construction issues that are running us any of those claim that such an issue is being reversed would require a reversal of the determination got to say also there were regardless of claim construction issues a number of non infringement issues that  quote a switch including a pair of synchronously switched switching transistors and this language describes a particular type of structure it's structural in nature it starts with the phrase a switch which is singular and indicates a single unit  also includes the phrase a pair of secrecy switched switching transistors a pair again is also a structural and also described a relationship between the two transistors and how they're controlled is a matching set  and the others off and when the first is on and when the first is off the second is on and the patent specifically describes this throughout this best vacation because only description of the switch is a that are controlled as a single unit figure one is where the phrase is interested to introduce its prior art and in figure one the patent explains that one of the transistors must be on at all times if one is on the other must be off if the first is turned off the second must be turned on and vice versa now an interesting note that the l j made was in avoiding prior art below both the commission and linear relied on the fact that the claims require a unified switch in order to avoid avoid prior art what happened at the commission was that commission construed the wrong phrase the took a partial phrase from the specification and not the cl and that phrase is different because it doesn't include the pair and the secrecy switch modifiers modifying not the transistors but something else the the risk of what the commission's construction is is it would allow transistors that could fire randomly and if they happen to be out of phase for a moment in time that would meet the limitation that's not the case here this is not a claim that says a switch including two transistor adopted this case can be reversed without every man because the commission acknowledges that this is solely an issue of claim destruction there's no dispute about the facts the eighty eleven forty three has two switches he said independent logic they can switch independently based on their logic decisions the next phrase is the second circuit for skirts or the argument and here at parties agree that the circuits must be distinct the question is how does that distinctiveness becom achieved if you look at the claim the circuits the second circuit in the third circuit are defined by their function they have two distinct functions one must switch the transistors mun one must generate a signal that causes them to be and in the specification of the teachings show different circuits for achieving these different functions there is no teaching a both functions are done by the same circuit but the commission linear would read the claim to say that you can create a third circuit by just taking the second circuit and tacking on any additional component regardless of whether it's relevant to the function of the circuit and that would be called the third circuit the problem with that is if you take that to the logical extreme it makes the distinction between the second circuit and the third circuit meaningless you take the second circuit circle it let's add a little resistor there's nothing to do with the function claimed in the third circuit limitation and call that the third circuit not only would that  difference the third is the third going to certain issues the first stage of circuit operation and the second set of circuit uppers in isolation the state of circuit operation languish really doesn't have a lot of meaning but the claim gives it some context first there must be two distinct states a first state a certain operation and the second one second it's circuit still a circuit ration that is the preamble control circuit the whole circuit how it's operating it is not this switch or transistors it doesn't say state a switch operation or state a transistor operation that's important because of the if you look at the where the claim is drafted you must speak in one of the states circuit operation first before generating either the first control signal or the second control signal so it's a prerequisite for the generation of the control signal that actually affects the transistors with the two states sees me one and one of the two states so you must turn to the specification and in the speci ication they are described the first date is when this whole circuit is operating at high output currents or high load currents and that is consistent throughout the specifications the second stay is when the circuit is operating at low  currents or the sleep while it is the prerequisite for sleep mode so you have a condition where the circuit is that luke earns it realizes that it can still generate the signal that generates a signal to turn the transistors off and there's a large number of other quotation from the specification that i have and that in the bruce the file history here is also very important the file history shows that the same claims  issue here were issued in the very first parents they were rejected over the prior art they to mentor had to traverse the rejection and in doing so describe the applicant's invention in general and said that it's tied the state to load current for state is high and you have to transition to a little current and whether it's this and the second state anything the same response the office action they mended the claims but they didn't amend the state of circuit operation original claim at a relationship if you're now more particulary describing the relationship the original claims and the relationship here their recent claims are at issue and the other thing is if you don't hold near to its disclaimer what doesn't make these the current claims invalid of the same market their original examiner validated these claims additionally many years own expert this is j one zero one three eight initially type first data circuit operation as corresponding to high morning a minute please the court like to pick up where mr thomas has left off plant construction specifically we're going in the first and second stage of circuit operation i really think this is it's essential to what was defined in what was what was invented here in this patent and to answer your honest question the second state of operation certainly is the sleep mode and this is actually described in the pa column six and then actually to the extent there is a definition of the of the state the top announcers describes the sleep mode is the state of circuit operation where both transistors are off you know directly to mr thomas's argument that the states are circuit operation should not be defined in terms of the status of transistors that's directly contradicted by the patent he argues that the state is dependent on condition load current and if you read the con the patent as a whole what they what they invented was a way to save fission c by going into second state sleep mode inventors had observed in multitrack the later is was that they didn't maintain the same question soon because they were maintaining the transistor switching at low load currents and they didn't need to have the courage to be provided by the capacit so they use the sleep which is their invention to solve this problem but that doesn't mean that any implementation of this invention ought to be limited to solving just that one problem is if inventors find it helpful to use at various load currents i think that is is clearly covered by the claims which don't have the limitation that that a seeks to import from the specifications examples or from prior prosecution history into the claims and that changing from one state of circuit operation to the other based on load current that limitation simply does not exist now they argue that because the first state of circuit operation second state of sort of operation limitations were in the prior claim that you know where they actually made this argument that they that the first state and second state ought to include this the imitation the fact is if you look at that prosecution history they were arguing and just plainly describing and limitation that was present in the claim that they were discussing during that prosecution history and it is not present in this funk use me let me let me ask you one question if i has made are even to writing plain construction depending how those come out that will that will impact claim thirty four but the fact the matter is the commission has has acknowledged that inconsistency in the commission opinion and  and resolution that will depend on on the other parties are turning to mr thomas the second and third circuit limitation arguments this is similar to the first and second state and i'd like to convention to distinguish between the two it doesn't necessarily mean that there is a limitation inherent from one to the other other than that the to be different and to stay ok which is exactly what the commission held needed to be needed to exist between the second and third circuit so the commission answer that question consistent with three m consistent with the language in the claims which is that the second circuit needs to be distinct from the third circuit now mr thomas's makes an argument here that they're not distinct enough and i'd just like to point out that the two arguments they make regarding the c c comparable which is that the circuit component that distinguishes the second circuit from a third circuit a rather inconsistent on the one hand they argue that the second control signal identified doesn't turn the transistors off because of participation by the c c compare then on the other unit to transistors and also i just like to point out that what's essentially a straw man argument that the commission's construction would cover transistors the switch random way and sometimes in eighty eyes devices do switch synchronously their expert admitted that linear is expert presented testimony on it's not just random it doesn't just happen once in a while in fact there's undisputed testimony that if they ever did not switch same sleep on at any given time the device point work would cause a short circuit so that it's essentially a straw man argument about the random the random switching it happens to be  once the that limitation you were just discussing the switches there on construed as a switch that includes a pair of transistors connected for complimentary switching in controlled single it i guess a t a i is saying a switch that includes a pair of transistors right we've got the transistors there sixteen and seventeen right there are connected for complimentary switching goes back and forth in controlled single unit but i think i think you're out of that there's a couple there's a couple issues on the first it is this control is a single unit and in the the commission pointed this out these two transistors are actually driven by circuit twenty now in that same diagrams of the driver circuit and then they're actually idea of connected for cars for complimentary switching the effect of the matter is and i'm going to turn briefly to two infringement but in this connected for complimentary switching a t s devices are connected in a way such that its switches switch in a complimentary fashion so i think there was an argument that even under that construction that a guy's devices do need it and i think that's part of the problem is rely on that definition because they claim to use a slightly different language but the bigger the matter is that discussion is about the exact switches that a g i uses to try to import their limitations their preferred limitations into the claim so i think that's really a distinction without a difference between that definition and what's claimed i see that i am just about out of time so switch since we were talking about that the problem there are several problems with eighty five pose definition first of all it doesn't really help resolve any ambiguity as to to the contrary this control connected to be controlled as a single unit creates additional ambiguity down below eighty i was arguing that it had to be an identical circuit to be operated controlled is a single unit on appeal they backed off of  to the way they interpret the interpretation write it and that was my point as to why their interpretation is both unnecessary and in fact harmful because it rather than in creating clarity it creates ambiguity there's no reason to to go away from the act the actual language of the claim and the specification this random firing of the top and the bottom transistor is a red herring and the commission's construction takes care of that issue it requires that it's a switch and including two switching transistors that are driven out of phase t supply current at a regulated bolted to a load ok if they were randomly firing not only will they not provide side the regulated voltage because they won't be synchronously switching where one is on and one is off  does not correctly pro trade the prosecution history there was different claim language at issue and the discussion that took place in the prosecution history addressed a different issue the issue is what is the tr event of turning both transistors off it had nothing to do with the other issue which is the basis of age guys not infringement position of when you can have the transistors turned back on and again their proposed definition flies in the face of the specification because the specification a column seven at approximately linus eleven through twenty eight goes through the situation of extended times of low low demand for car and in those in those instances what you're going to have and claim thirty four actually has stepped the which explicitly and to supply the situation is you're going to have a low current for extended time when your computer is off but periodic leave the capacitors going to run out of the necessary juice and so you're going to need to switch back on in order to wrap it up the unit and the reserve and once it has enough reserve then it will go back into sleep mode throughout that entire time you're in a low load current first and second state of operation the with regard to the third circuit down infringement here is really pretty construction of the third circuit that in application the way they argue their infringement it's not that any circuit purchase a page that has to be a signal that actually there has to be a single single t off both transistors if you look at the claim language of the third circuit you'll see that the third circuit for generating a second control signal during a second state of circuit probably noted by the commission with regard to the eleven forty three and the in the role that the this is the z c and that the c m p signals played in causing the same circuitry the the c m p d in the z c and in the case eleven fifty one we have the clock signal in the circuitry that creates a clock signal and for the twelve sixty five we have the circuitry that creates much yes thank you quickly claimed thirty four on infringement claim thirty four is a method claim all the evidence in the record pertains to how the product that was imported alone could operate there's no evidence that eighty i did all the steps of claim thirty four the evidence that the men here in the commission just cited about a deposition testimony that evidence is vague and ambiguous at best that it was not in them and the commission's decision it would be to what happened was there if i am not infringement of all the claims but on appeal to the commission then you again did not focus on claim thirty four in its petition for review so there is no evidence on the practic thirty four and again eight an article cannot practice a method another important thing is these are chips that are sold without any capacitor or other external components it's not the full circuit of the claim it's understood that these that these products do not do not have a good pass or the l g made a finding that linear fit either put in evidence of the external components connected how any final circuit was structured and how any final circuit was up  produces there should be certain things that are left out i mean how do we handle that how does the court handle that and writing an opinion that's meaningful all three parties discuss our last night and we just then forget about the confidentiality stuff  like protected and there's a color coded high level circuit diagrams in the briefs that have confidential information and that if the question were so you'd want the court to speak to sort of independent circuitry it is true that at some point in time they're switching out of phase but they're not driven out of phase they they are switching out of phase and sometimes and in fact very often are switching not have and they are built that way because there is two separate logic circuits and one of which operates on different conditions in the other so it's not the situation in the past where one switch turning on and then the other one must be off and vice versa they can both be off in normal operation