either the intrinsic what's jeremy i mean what's so for quality of service which is different than the high quality of service connection quality of service simply means five dictionary definitions this is not the contributor quality service simply mean the parameters or the performance of a network based on certain parameters so what have high quality mean so high quality means so if you want the point that term growth i'm not sure that's true but there's not evidence in the record of other uses of the term high quality of service connection i don't think it matters that it's a coin term we briefed out in our brief you still referred to the specification to determine whether it's high quality service connection simply means that you are assured what you write in the sense that i took it that that was in fact your position that high means guaranteed even if what you're guaranteeing is just that seems very surprising i don't think it means what your guarantee is junk because i think what it is what if what you need is a lower band with or less packet loss to you that connection is high quality because the results of that connection gives you a change speaking of a video like if you take some of the examples in the parish to figure if there's a if there's a carrier as a service provider is offering objective really good quality and objectively bad quality but charging a really quite different price for them you may ask for the objective li bad quality because it's costing you only you know a dollar a month or something and it's kind of surprising to me and in particular i don't are guaranteed but rather it was all about the objective characteristics of the transmission that was going to occur and i think that's been in the district or criticize us for that as well i thought they were kind of two issues or like to take them in t whole point about like if you get a lower connection speed for a cheaper price that's not what this about this is about what the application needs not the user and other for these applications to work functionally they have certain quality of service parameters what makes a high but they will function as well so that's your first point judge structure second point was i think context matters quite a bit for this and they were a rejection and one of the things another point in which i think conservative sort of independent of whether this was being offered as a definition or being offered as an example the thing that i'm guess i'm focused on is that is being offered to tell the examiner something or other about this quality of service and there's not a word in there about how to guarantee or assured it's all about objective characteristics of the connection which seems to me to make it hard to say that this high quality of service  able to make and use the invention maybe use basically not just the connection but the entire claim which is this this stream we did approach to  router make the series of decisions about how on an ad hoc basis to send a packet forward and that would result in packet loss delay and at the end of the day with for certain applications they wouldn't work well you get which is in your video call are there basically v p n networks they were pretty dedicated lines and so you could control how the packets were sent from one side to the other whereas the best ever connection it's just bouncing around around the router until it gets  the number that you have you have what you need right this is what we call the final it refers back to the application if you have an application that needs sixty four kilobits per second having a thousand doesn't help  high quality is that's correct they would have to go to the intrinsic evidence as a whole which includes well figure three and the description of figure three in the prosecution history that's the evidence we have for the term and what this term which remember the applicant abbott this term during prosecution not in the original claims so the applicant adds this new term during the prosecution says look to figure three which has some applications included but others excluded from the box and now the plaintiff wants to settle this term cover systems that don't provide any of the included applications but would only support the expletive allegations that's how brought they want to be following up on your question judge toronto for example that ohio video call which is the second from the bottom in figure three that have certain requirements if you look it has a certain amount it's low but it has a certain amount  of needed them with and then it has specific requirements as to packet loss and latency and yet the applicant did not include the over your call is a high quality of service application so we know that the plaintiff's construction can't be right because the plaintiffs construction wants to encompass a system that includes the very thing that the applicant chose not to include in its box that he chose to exclude from its box in the only reference in the specification to high quality of service and that's also important when you listen to what my colleague said at the end of his presentation remember when he said the amount of bandwidth is not the critical feature well let's look at this figure specifically let's look at video conferencing that is right there at the bottom of the box and let's look at the ohio video call which is outside the box if you look to the right to the two columns of packet loss and latency you'll see those are identical for those two applications in fact the only difference between those two applications is in the bandwidth needed that's the required bandwidth it says of the bottom bandwidth megabits per second needed that's required so the only difference the only thing that makes one application high quality of service and other applications not high party of service is a difference up in the specification only teaches the opposite of what we just heard which is that band with is critical to understanding what is high quality of service and what it's not he you know saying that band with a loan is the only difference because that's not what the district that's not and there are three and you'll see there are three different quality of service requirement that are port not a spam what happened here was that the specification outlines some things are high quality of service some things have quality of service requirements but are not hi service and then the applicant relies on that distinction when they have new claim language saying high quality of service connection and they explain here's what it means approximately one to three hundred megabits per second and the packet loss and latency depending upon the application which is what you see all the district court did was take them at their word and say that's what you said hotdogging services that's the only intrinsic out it's telling us what you've the judge gave them an exact cut off of the judgment the judge said approximately one megabit per second because that's what they had said in the prosecution history when they describe that bottom border line that borders and thus separates high quality of service from examples that are not high quality of service so when the prosecution history when they came back and they said we want to use that distinction as part of our claims they were in fact taking into account that there are some that are included and some that are not included and they describe where that borderline was when they said approximately one megabit per second they didn't describe it absolutely right they didn't say well one megabit per second if you're over that are good if you're under that or not they said approximately and judge to tell that the patent office we've got a trial here's what it means approximately one to three hundred megabits per second but now we're going to come in district court and static this system that doesn't support anything in that b question just for purposes of this question suppose i thought that the claim construction offered by the way the other side is rock that assured can't be the meaning of high suppose i also thought that the level of numerical specificity here it's it seems dubious or something going on by assumption too important that into a term like this high quality of service without something more definitional or something that says these are the industry standards or something what  so i hear i would be saying that by assumption that the district court may be that seems like a construction that's a little off and the only construction that's being offered in contrast to that is answering the substantive question the substantive legal question but i understood judge toronto to be just are questioning whether or not we have the authority to come up with a third answer  claim construction i think the answer to that is yes we do have the authority or at least the discretion if we chose to come up with a third so my answer to judge from just question is that am i wrong that this court does find waiver in claim construction positions so where the two parties are addressing the particular parameter and they have not raised the middle position that you're looking for your honor i think you know that that is way and we can adopt our own question is whether we are obliged to do that or can we say that the challenge presented us only one of term of the construction alternative to the district court one we think that's wrong we can if we choose stop and simply say we will therefore affirm and i definitely think it's situation there was information in the record going to that instruction chosen by this court here there is nothing in the record going to reconstruction between what they're produced what they're proposing and what was decided by the district court and i think in this situation this part certainly has the discretion to say the challenge raised does not show error by the district court because there isn't an alternative construction that is more proper than the one th obligated to search for a more correct construction when the construction of the district court is in better construction than the construction it is offered in challenge to district court construction and then judge crater fifth step on appeal at the district court level but if that's if i'm right about that happening isn't that a little problematic or disconcerting because if i am a judge and i'm looking at the first instance and i'm reading prosecution histories that indefiniteness challenge my view of the hope my whole analysis is going to be different than it would be if it was unable to challenge wouldn't it and so is that a little bit of a problem here you know i think the one twelve and that's actually the same when you look at the interview that they have interview on page four twenty seven of the record xander also different claims as the parent it was it was not until months later that the final office actually came which is found at the pentagon to seventy one and the response there is found at three fifty one three three fifty seven it is actually a different rejection not one this is anything about being determined what he says in the in the final offer rejection doesn't saying up in german simply said asks simply says it's not i've ever done it district court at some point agreed with a little bit of this a little of that and put their things together i would point out that even though we haven't offered maybe a lower numerical number or something that video compression methods vary greatly in bandwidth they require to transport the video in real time some solutions are as low as sixty four kilobits per second up to three hundred megabits per second so if some of these solutions require