please the court by the cash crop this appeal because the district court misconstrued to claim terms and as a result erroneous li entered summary judgment of not infringement the barricades patent relates to loop gift cards which are cards that can be bought at one retailer and use that any other retailer the claims have for the main steps that the method quite clean one of the only independent claim that's at issue as a gift for you celebrate and so forth may not be names but there was no finding of that and therefore that's not an issue on appeal we did really didn't roping brief in american express said that's not an issue for appeal it was not a something like that to maybe get to the edge of people's names are also adjectives and we gave some examples in our brief of some famous celebrities who made their children with that with educators so just say the word name is not the issue and there's never been any real dispute about that it may be when we go back we may have to fight that battle when we go back but that i don't believe is right for this court to consider on the non personalized card holder name issue the problem we well settled federal circuit law to add playing terms playing with patients from the specification where they don't exist but in this case it's even more so because the exact use limitation the court added was removed from the claims before the claims issue very similar to this case where the district court found that a particular limitation need to be in the claims that relied on the prosecution history there were two minutes made prosecution history with that claim limitation was added and relied on to distinguish prior art but in the next amendment that limitation was removed from the claims and the claims were law about their instrument the when the car provider turns it off those are undisputed facts and that's exactly what americans pressed us well there and disputed facts with respect to the accused products there i think not undisputed with respect to the patent actually it isn't disputed with respect to the scope of the patent your honor that was affected or standing in the other sites position of course they can they can correct me if i'm wrong but i understood them to be saying that under the patent the card was good until it expired not and then the patent did not provide a mechanism or contemplate that the card could be deactivated prior to its expiration which is what the and it should be did activated and only american express can deactivate the car nobody else and it's american express is the solution to do that just like the expiration date is the car providers decision as to when that card will no longer be valid so through the life of a car there are there's a time when it's not a bare instrument there's a time when it's a bare instrument and there's another time when it's not apparent from again you know but it's important as to what those times are i mean the way i read your specification  looking at column three line thirty scuse me fifty six through about sixty four you described of their work harder their instrument in a way that seems pretty close to definition to meet without regard to what the u c c regards of their instrument is mean for the moment focusing just on this language you describe the card is being until the expiration date as good as cash and if the consumer loses or misplaces the card it can be used up to the limit of a obama card by anyone in possession of the car i e that you it's as if you lost a twenty dollar bill and  can't you have no recourse now the american express accused cards you do have a recourse you call american express true it's american express that has been deactivate the card but nonetheless there is recourse for the purchase and it doesn't seem contemplated by your description of bear and stronger we would say that's an extra step your honor the fact that they allow those additional way of turning off the car the first of all this is clearly a preferred  out because when you read this it's it's not talking about all instances how you can turn off when you say it's a purchasing each person purchasing card is a barrier car which means and then you go ahead and describe america that seems to be definitional rather than imbibing type language it would be if this was accurate but when you read it it says a bare instrument which means it is good as good as cash but the district court explained earlier in its opinion and the american express agrees that it's not truly as good as cash because you can distribute this car without it being activated if it's not always expire cash never expires the this purchase card made out expire either the fact that there is an expiration date is a possibility it's described as a possibility but it's not it's not describe it the only way to do this is not built describe a sell cars for example they could have no expiration date the fact that american express and also american express does have an expiration date on their cards so if the card is lost and with it's not reported stolen it is exactly what th paragraph describes it is usable by anybody who has it until the expiration date and then it's not again the fact that they provide an additional mechanism to turn off the card or shouldn't change that and they've example we gave of course is the check  calling the card provider and saying you know stop payment on my card that shouldn't change the fact that the card the term bearer instrument in this patent contemplates a beginning of life and an end of life and how that beginning of life and end of life occurs shouldn't change the definition of bears so that's why we say it's a bare instrument when it's funded inactivated and during that time it can be used up to the limit of the card but once it's no longer fund inactivated meaning  america expresses turned it off for whatever reason because it expired or because somebody called and said turn off my car that should change the nature of the baron's print while it's still funded inactivated because while it's still funded activated anyone can use it a shakespearean turning that is a name we never argued that the word name alone was enough to trigger a summary judgment of non infringement we looked at overall non personal ruling on just the word name and what is a name and that we don't have a name on the american express court rather we found that the court defined known personalized card of their name and found we didn't have one of those where people could have a piece of card and they could put their pets name on it and stay there all right so that was the name of the pets name that didn't refer to the purchaser you know a human being would actually go and make the purchase and what counsel for private c was well that changes it that makes it different our requirement here is that there be a non personalized cardholder name not just impost on the card but that's actually used in the transaction and the p responded to that and said well that's fine what you're saying but if the specification doesn't say that and the claims don't say that so what happened was there was an interview and the interview summary is in the record they want to say one forty six thirty four through one thirty six and i have the office action not precipitously to do that interview as a two three three four through a two that requirement clear to either to facilitate plain construction you may overcome the priority so private cash is counsel amended the specification they also amended the claims to add the word and the requirement of  need to be most critical here they added in that requirement in both the spec and the claim and then they later took it out of the claim what is what is one to make of that with the acquiescence seemingly of the examiner so unlike the usual prosecution history disclaimer situation or for that matter even simply a modification of the claim demonstrating the abandonment of claim subject matter this sounds as if i had second thoughts about abandoning a portion of what they had claimed they went back and the examiner was just fine with what i would say your honor is they certainly did change and change back language in the transacting step of the what they didn't ever change once they added it in two thousand and five was the addition of their requirement that the card having non personal eyes cardholder name that didn't exist in the initial application in one thousand nine hundred eighty nine they added by amendment in two thousand and five they amended the specification to say what that means non personal nice card holder name and that word that phrase never came out of between l c going to let me make sure i understand exactly what your argument is are you saying that are you not arguing that that non personalized card holder name has to be used in the transaction as it would have been under the prior version of the specification and claim i don't i saying your honor is that non personal nice card holder name that word fixed it was put in in two thousand and five and stating the rest of the way has to be used the way the applicant defined it when they amended the specification and which is just to be used in the transaction correct it's on well you are making the argument that the change they may has to be in the clinic has to be disregarded because that's what was taken out what they had in the claim was a little bit different your honor at one point they had the non personalized card or name going between the retailer right and the card provider here and out of the american express and what they later at mid is that can't happen that's an impossibility because the system where we are up we all know we go swipe the credit card that system does not provide for your name either your real name or a non person last name to go between the retailer and the card provider like american express that system is very limited to four pieces of information the card number the expiration date the security code on the call just that little four digit number of the embossed number and the amount of the transaction so at first they said the name has got to go between the retailer in the card provider but that's impossible they admit that it was impossible never applied that peach five so they took that out what's left in is that this card has to have a non person card holder name and that's going to mean something more than fight oh right  over or something else on the patent as in the kennel club first us a prior art and we also know from the claim itself if we look at the remainder of the claim itself claiming one in the pa the remainder of the claim says where in the purchase card does not include information identifying the specific perspective card holder so it only has the fact that the card can't say anything about who or whomever the purchaser is so this edition of non personalized card holder name it has to be something other then this doesn't say who you all it's got to provide something it's got to relate to the transaction here right we've got a claimed method for transacting a purchase so it's got to be used and how it's going to be used they said right in the specification and they amended it it said page eight one forty two three the account number holder name an expiration date or then used by the retailers application to complete the purchase transaction with the consumer in a manner known in the yard and this is another concession in their reply brief page story that this non personal ice card holder name is flowing between the retailer and the consumer if the retailer wants more information about you for example for a mailing list this is where the non personalized card holder name comes into play and there was no money in the retailer needs more information go ahead correct if the retailer wants to get more information they don't need it to complete the transaction with the card provider but if they want it for their own purposes for example generating marketing or mailing they sometimes ask for your name and what the claimed invention was was to say when they do that to preserve your anonymity tell them the non personal ice card holder name so i would say william shakespeare said it has to be contemplated they had sent a you would have to say it for there to be a direct infringement since this is a method claim and b american express would have to intend for you or instruct you to do it since this is a case and where they're alleging indirect infringement that we're aiding abetting or inducing infringement by others since american express isn't the one going out there buying things and we don't tell anybody to go and when you make a purchase type in celebrate or into old age or a gift for you or any of these other phrases that they're suggesting we never tell people to do that and you know there's no proof in the record that anybody did to that other day and the expert on their behalf and that runs contrary to th when we look at their instruments and the district court properly construed bare instrument for three reasons it used the plain ordinary meaning of bare instrument it looked at the remaining limitations of the cla and it looked at the language in the specification that i believe judge grayson already pointed to this morning in the specification of the path so if we look at each of those the council talks a lot about well what it was required to turn the car on and what is required to turn the card off is there an expiration date i'd make two points on that number one activating the card and sending an expiration date as part of a transaction they're already playing  they're already claimed limitations of council say that's what bear instrument means that not only that turning it on and turning it off the word becomes superfluous and we can't handle that's one indication of why the proposed construction have an expiration date printed on the front of it for sure what has to be printed in issued by the u s government has to be turned down and it's cash and it's negotiable until it either is taken out of circulation or otherwise destroyed it's  separate to that is during that life what can happen with the barest mint is that there be an additional requirement to prove title above and beyond your mere possession having it near and and in this case what distinguishes the american express card is if someone takes my american express gift card i can call up and said i would be their last to repent my car has been stolen and they will turn it all off and then that person who has been appropriately gains possession of the card when they go to wherever they want to use to spend the court it would be turned off and they can't use it so possession will not be enough as i walk out of the bank somebody pulls me out grabs the check in runs off when i turn around go back in the bank and i say stop payment on that check that check ceases to be an effective instrument say to date i have to say i haven't seen hal where the check is or is not be the arrows are on the specification here and the definite we've got the plane in order in meaning in the definition provided and i don't know when we've got the specification at eight thirty nine that says if the package cart is dropped or lost it can be used by anybody up to the funds available and we've also got the activation requirement apologize counselor i would probably really aggressive in paring down a joint appendix it's from a dictionary and we can provide the quote with the cover page and the copyright date of the dictionary the court while that is part of the record it's contemporaneous dictionary definition of financial terms and this was cited to the district court and shows again ordinary meaning a bare instrument negotiable instrument payable on demand to the individual who holds the instrument and here's the important part title passes by delivery without endorsement the title never passes to the person who picks up my american express card because the card can be turned off and they can't use it i mean title to my wallet doesn't pass when somebody steals my wallet but there's twenty dollar bills that i have any in the wallet are still there instruments i'm not your title in this setting it's really the thing with the twenty dollar bills is it a person who inappropriately gets your twenty dollars bill and if you left it on the table they can't be stopped from using it in a transaction right nobody can turn it off they can go and buy whatever they want to buy with that twenty dollars and there's no mechanism to turn it off it's a true bearer instrument like you know hans gruber in die hard is probably the most common bearishness but he had the bare bones why did he want to steal because once he had them even though he was a criminal and everybody knew he was a criminal he could go spend them anywhere he wanted what we have here with the american express gift card is if you get it in appropriately if you steal it or you just pick it up off the street but it's not yours it can be turned off on you and you can't go ahead and use it so your mere possession of the card does not where it says quote should the consumer lose or misplace the purchase in card forty it may be used up to the limit available on the card by anyone in possession of the card in this way the purchasing card provides a means for preserving the anonymity of the purchaser and so it's got a beginning and an end and here we have an explicit and expiration date as part of the data that has to go through with our transaction it's also this is an american express gift card so i can't use it at a place that doesn't him except american express  cards there are limitations of that nature but when we look in the context of this patent that's talking about purchase cards and just purchase cards when we look in the context of this patent this was saying you can't turn it off once it's so the funds have been used until it expires and it says why in this way the purchasing card provides a means for preserving the anonymity of the purchaser because if it gave you a means to turn it off it would have a means of i say with the current claim say the card is funded an activated which is how it becomes a bare instrument but what happens in the transacting step is that there's a check made to make sure that the card does not expire and that the account number is a valid account number so it doesn't matter a hollow the card becomes deactivated at the end because the claims don't cover that you'd have to insert a new claim limitation in order to cover what american express is asking for which is that if we do this additional provide this additional option of canceling it by calling up then the card is no longer a bear instrument and that the pads definition i don't think that's appropriate because that is really adding an additional step that's not in the claims the claims don't the claims the claims do talk about sending the card number and sending the expiration date in the transacting step but that's just a checked and that's when a determination is made whether the card remains a bare instrument or not so i think that's an important factor here just one correction i think the minor point but we did raise the check example below and i believe we cited page forty two world that's a that's a detail i believe is that anybody who has possession of this card can use it meaning in the american express case that the person buys it can use it they can give it as a gift they can drop it on the ground and somebody else can pick it up and use it up to its expiration date or up to any time american express turns it off so i don't think it becomes a purpose because you need that statement in order to create that ability to give the card away as a gift card for example let me turn now to the non and the specification was amended and two thousand six and then later two thousand and eight when the claim was that the claim actually was cancelled plain fifteen which was added in two thousand and five as cancelled and a new claim was added in two thousand and six which had a very different focus the focus of the claim in two thousand cried was about the relationship between the card holder and the retailer that was the focus then two thousand sets the focus of claim twenty two with a new claim was between card holder and the purchase card provider a different relationship sorrow but the claim limitation that american express seeks to abby you slim attention which focuses on the relationship between the car provider and the car in the retailer is no longer relevant to claim twenty two which is the one reason it was removed from claim twenty two and therefore it doesn't apply for that reason as well not only because it was taken out but because of that and the last point i'd make is that the not personalized card holder name in the distributed step must be selected by the card provider and that's that's an additional step and i also put it on the car so that th step of the claim that required it's not enough that there be a card holder name it has to be selected by the card provider so it does have something more than the static value which is the court so you do think in light of this is a substantial change that was made as you described it in two thousand and six and its patent prior to date would be two thousand and six no i think the focus of the claim changed but the specification supported all that the specification proper about all the relationships but the focus of the claim in two thousand and five was about a relationship between the card provider of a card holder if you look at our brief i think it's quickly it's figure three i believe yes figure three it shows all the relationships that it was only clarifying what happened between the card provider and the retailer and it was already in our view was already all in the specification it just needed the said more clearly so i don't believe and its presence not yet argued maybe that will the go back but that limits the effect of priority date of the claims but especially because that limitation is no longer in the claims i don't think it would or would limit the priority to these claims anyway even if somehow you can say