request a service or a file so an a o l client is the software that connects to an a o l server now typically it was operating on the end device where the user was located but here this was a virtual client so again they experts understood that what was meant by is sufficient structure and the court erred by looking for by finding this to be functional claiming it is not functional claimed by any stretch the court was looking for of a variety of functions whether it's in this case the virtual client what it does is it is the go between between the server and the mobile phone so that if the mobile phone is disconnected from the intermediate server the virtual client entity maintains the connection to the application server and the users able to continue interacting with the application when self service is resume that your answer is one of your arguments in the brief that you couldn't have a means plus function a limitation in a method client wri well the way i think i understand the question your honor the way we read the case law is that a let's call it an apparatus element within a means plus function claim would only be found that if we were devoid of structure whereas here there is structure it's not using it doesn't use a nonce word such as means or module or which was the case in the rain that was a user identification munjal which had no commonly understood meaning the additional language enough to write its claims that we see that a structure is not sufficient to perform the reciting functions i don't believe i've seen any case of the court that is found in the method claim every means plus function up location in the method claim that we've seen was where there was no structure at all in the particular element for that particular question we are content to rest on our briefs and what i would like to address with the court's permission is the whether the virtual  included sufficient structure and secondly if we get to that whether there was supporting structure in the specification if it were found to be means plus function saying it's a client and there was ample testimony from the experts intrinsic evidence dictionaries even there was even a definition of a client in the file history here this is like tech  global if i recall correctly where the claim element was defined in the prosecution history and that's what we had here that the inventors provided a dictionary definition during prosecution to the patent office that is sufficient for a particular software that's associated with a server for connecting to that particular application server that is a structure it's a special purpose piece of software and it's known in the art of such  of structure like a server the virtual client entity is a piece of a specialized software residing on a computer which is the intermediate server in this case  you are reading virtual client energy as if it was as if it's a server program to function as a virtual client i the software that emulates a client it does refer to software you're on i agree with that and i didn't mean to give the impression of disagreeing the virtual client is a piece of software the entity refers to it's an instance right it's an executable instance of that so i don't believe we disagree the virtual content that he is a program that's correct so are you agree that there should be analyzed means plus function limitation no we do not agree with that i know but by by calling it a a program that does not end the question right it is a program with a specific structure and it has a particular it has a known meaning and a structure to those of ordinary skill in the arts well it and that program it's a program with a known function and that provides a structure that i don't know if it's a meaningful distinction or not but it's for example if we talked about a driver as a piece of software that is a that has a structure it's not a general purpose software module it's with a specific purpose and it is known to those of skill in the art right so when we talk about means to a function right it's any means for doing x and it's not necessarily something known to those of ordinary skill but here because we're using technical terms that were known to those of skill including you software i was reading the oral argument before the district wrote the other day and i recall there was no dispute that it was known how to put a client on on a server and that's not an answer to my definitions of client that were provided based on dictionaries technical references at the time of the invention i don't read that is that the known software whe to address whether that's in dispute i don't believe council there's a dispute and all this is just more and there's a difference between saying a programmer would know how to create a program that does this which is what i think you have in the record and saying it is a known precise piece of software which would mean that would be something known to have sufficient structure in a particular form i mean there's no doubt that record is replete with evidence artisan would know how to craft such a software program but that's exactly the kind of circumstance where we've acquired an algorithm we are not arguing for purposes of the st means plus function question whether there is sufficient structure that one would know how to do it we are saying that it is a known piece of software and i don't think there's if you don't that there isn't a well server for example in a well client which connected to the a o l server a client is a known piece of plus in other cases between whether there is no algorithm at all and whether there is a sufficient algorithm if there is no growth and then we do not look to one of ordinary skill in the art of how that would be interpreted but where the question is only the adequa telephone using for example an h t m l page that is an algorithm there's no further algorithm that is required and those things are understood by one of ordinary skill in the art that is what we understand the case law to mean based on the you thank you thank you so let me just begin by saying there very much is a dispute about whether virtual client entity refers to some particular known software and so on the well called the st prong of the williamson test whether there is sufficiently definite structure or cited what what our friends on the other side are arguing is that essentially this case is analogous to the zero click case because this is a reference to some particular known software but there are several fatal problems with that argument you know among the st is that virtual client entity is a clean term as the district court found on page ten of the appendix so it's not in common parlance as a term for a particular structure and we know that from the advance ground case the structure is only what the words themselves connote to one a skill in the art you know in light of the intrinsic record it's also the alleged advance over the prior art in the point of novelty and the district  opinion about what the virtual client and city is and it's it's not a client of any identified sort instead it's a program that quote when i secured it is perceived by the server to be a client and  internet based application it's not known structure and the art and for that reason is the term virtual client and she does not recite it sufficiently different it's officially definite structure but there's a nd issue as well the  williamson on the structure sufficient to perform the recited function and here again the district court made explicit factual findings and what we have is dr better since saying that the virtual client entity has to do two things have to not only allow connection to occur which of course a program can connect to another program that has to allow some sort of conversion operation to occur  the incompatible telephone device and internet based application to talk to one another and what the district court explicitly found was that dr better since said that's an implementation detail that essentially conceding that there is nothing in the term virtual client entity that explains the way in which that that software converts the information from one form into another to allow the communication to occur between these two devices between the internet based application and the telephone device and you know judge andrews in his opinion cited directly to that portion of t as fact what the sense of evidence showed is that this implementation implementation detail is just missing from the record this idea of how the conversion the way in which this conversion happens which is what's required for the allowing communication function to occur is not there within in transit record and so as a result of that there's not structure sufficient to perform the recited function so given that we think that both prongs of the williamson test council indicate quite clearly that the term is governed by one thousand one hundred and twenty six so in light of that the next step in the analysis is that the court has to turn to the suffocation to see whether there's an algorithm that is disclosed for that for that function the allowing communication and here there's no corresponding structure and the  was a little confusing before judge andrews when i said yes and no i completely agree that entity is very much like the term module but i was what do i say in my answer when i said yes and no is that not only an entity a non story but virtual client entity is a know how the telephone is i received files but you know during argument below there was a discussion about whether that element had anything at all to do with the b c e because we were discussing dependent claims five and ten of the four hundred and thirty four pattern to talk about that element and it was it was agreed this is an appendix nine hundred and eighteen that that element really has nothing at all to do with the b c e now before this court there was a discussion of figure five as well and figure five respectfully is just red herring it doesn't even mention a virtual clan an entity and it literally has nothing to do with the structure of the virtual klein entity and how it performs this this converting function that's required for communications to occur it deals with a situation where there is non connected where there's a lack of connection between the the telephone device and an internet based application and in that situation there would be no b c s the claim itself teaches us so it's an it's a that and we can we can contrast with there with some of the cases that were cited so for example in the intelligent automation design case that was cited by t j that there you had an algorithm the issue there was microprocessor measures and monitors the value of the signal after there's a receiving and smoothing done the microprocessor detects a decrease in current signifying that the torque has begun dropping and therefore the screw has reached the point of grip so that's the kind of thing that we're looking for an algorithm here there isn't a complete absence of any algorithm for the conversion that has to occur a difficult i think it is very straightforward here but if the court is inclined to address what i want instead of one false sex we believe that that issue is fully before the court for resolution that's right unlike what was what was said and and there was no deferral of the one on one issue because of a need for factual development to the contrary the only deferral was to allow a claim construction to occur of the term virtual client entity and that having occurred just enter the explicitly s his ruling on claim construction that that you know that essentially resolve the one dollar to one dollar issue and because of that that the claim term is purely functional it's defined only by its function that because of that you familiar one of one law would dictate that because there is no way in which the virtual client entity is identified as performing the recite it functions under cases like to a media and american axle and of course the dis you have a situation where there's there's a serious preemption problem there's an attempt to own the way in which a you know old fashioned telephone device would communicate with an internet based application i own every way of doing that by just saying there's some magic virtual financial g in the middle that makes that happen what we need is a particular way of accomplishing that and that's what would have been necessary to allow this claim to be definite if the court structure appending entity to it does not suddenly render it devoid of structure for example of wireless device means in one of the cases that we've seen was found to be not means plus function and where the court there's a bit of bootstrapping going on here if we if we are looking for a conversion function which is not in the claim then we don't find it in the specification because that is not the express function right th and the virtual client entity is distended and that connect communicates with the application server there's no direct communication between the phone and the application server it's this sort of it's it's a it's an intermediary it's a really so you know it's the device that performs the necessary function of translating data in one format that is recognized by a telephone to data that's