court there are two key points that the district court missed that preclude summary judgment in this case first this court's construction of is connected in cement and sand which all parties agree govern here requires a query as to whether the colley is connected at the time the query is transmitted to the server the district court ignored clear direct expert testimony that the accused products in this case query for and determine whether the collie is connected at the time the query is transmitted exactly as required by the court's construction at six five seven three cisco's accused products is sent by a caller device the first process seeking to find out whether a call a device is online at the time the queries transmitted to the server and ready to connect at six five seven seven paragraph seventeen mr cole testifies that because the server cisco server only sends the invite message to the call e if the colley has an active registration the server determines in response to the query not only that the colley endpoint was online at the time the query was transmitted by or by the courts claim construction but it actually determines that the coll noted that your expert it in deposition that the accused server cannot determine whether or not the callie is actually connected to the computer network at the moment in time of the call or sends an invite message to the server it is true that the call that the server does not know already at the time that it receives the query whether it's connected instead what it does according to cole and even their experts what it does is it checks to determine whether it's connected at that time it tries to initiate a call know what the process is you know that is the critical difference that the district court absolutely miss and i'll take you through that the second i does not try to initiate the call that is signaling connection i can show you with respect to the figure if you allow me it's it so if you'll go to six five five eight eight this check to determine i'll show you occurs before the ip address is provided and before the point to point line is attempted to be established and that's the critical thing i just report miss so on six five five eight we have that figure that shows the school flow diagram there's a similar one for apple his confidential information mark it is it is not no it was there was  thousand is the caller in the middle c c m is the server and on the right phone two thousand that's the colley at at line ten there's a message invite it's message one you see one in brackets colleague that is message eleven that you see around line sixteen that causes the phone to ring and whether he and if the cali answers a two hundred ok comes back answers that the caller in cali are not connected at this i understand it when the person answers then it says ok you answer that means you must be home that's right and the server determines that you're online at that point and then and only then in the message seventeen two hundred ok does the server provide the ip address to the caller which the caller then use that line twenty two to establish the media cut through that media cut through is the point to point line that the callers establishing with the call the that's what carries the voice that's not right there was no media sorry to interrupt you where's the last  determines that the call e is on line was on line at the time of the querrey then and only then it sends the server sends message seventeen at line twenty one that's two hundred ok that that two hundred ok is what contains the ip address for the collie and only then can they connect directly which carries the voice all of this is absolutely transparent to the to the person the caller in cali but that's what's happening behind the scenes so if you look at the page six five five seven the triangle diagram this shows color a color b and the server in the middle is the call the two legs are signalling connections those are the set up signal and the media line is what happens between a and b that's the media cut through and so everything that it occurs up to message fifteen is set up signaling with the server they're not connected yet and then and only then does the server provide the ip address so that they provide the media cut through this is the critical point that the district court just missed he thought that the call was connected when the person  picks up the phone this is the difference between the prior art and the accused products in the prior art both systems have registration database but in the prior art when there was a query is it registered winds and that bios which were the prior references provided the ip address they didn't do anything else they didn't check online status and so they didn't answer the question is it connected at the querrey that's the difference the queues products both checked to determine that the call the is still online that it was online at the time of the quer before providing the ip address by calling the person that's right by by ringing the phone that's also signalling with the server only and that's the whole point of this invention this invention is to establish tell me but before the server gives me your ip address to call it once the invention is to make sure that you're actually online and this is all supposed to be happening at the same time time was the underpinning with the claim construction and for allowing your claims to be held the time of the time of what's determined what is required that there is a temporal requirement but the temporal requirement is is made or how that determination made in the record is actually clear that how that determination is made how the service saying ok if it's a retroactive determination earth or to terminations that occurs later so long as it accurate as as long as it's retroactively determining the right thing that will how does that he was on the line at the time you know among other things we said in our net case the present tense is it is connected answered at the time the question is and what the query requires is is it connected at the time of the querrey and mr cold explained that the system where he's for that and determines not only that it is connected at the time of the query but it actually has been connected from just before that to just after it is answering the right question when when the query is may that's when the communication is  calling the colleague in order to actually see if the collie is on line and how is that purpose satisfied ok the server is sending signalling messages which are cheap and easy to the coll difficult and what is saved is trying to establish that media connection media cut through that who want to point connection and while apple says we have false registrations and there are billions of times that the server what what the specification is primarily aimed at is helping to establish a point to point connection where you have dynamic ip address the the is connected was not specifically drawn out as that the benefit of that i don't think that specifically disclose here that came out in the process of distinguishing the prior art in the i and in the subsequent appeals the and the benefit we have to look at the claim and the claim is issuing a querrey or is it connected and doing that before embodiment was specifically discussed acknowledged by the civil court before finding plain ordinary meeting the there is no so there was no clear and unmistakable disclaimer of anything that didn't have a anything more was different then the embodiment in the specification which has an accurate database and they said the difference there is if you if you're only checking a database it's got to be accurate you have to check you have to track but then your honour's opinion and samsung specifically embrace not only that the prior art that the plain meaning is right but specifically embrace that it includes tracking or checking to determine right so the samsung opinion that he said it's in an r appendix a three seven three zero seven three judge krause opinion is the board's determination is supported by substantial evidence straight straight path argues because quote not only not only is the prior art not designed to keep track of current online status it is not designed to check online status when responding to a query for users i the server makes the determination what's required is that the query be to the server and when responding the server check that it is online that it was online at the time of the querrey before providing the ip address so that the caller device is not trying to establish this expensive point to point media cut through with the stale life away over time  words in the claim construction that this court offered that had dropped out of the colloquy that the clean construction that this court arrived at and straight path and stiff necked case is a query as to whether the second process is connected to the computer network means it's connected to the computer network at the time that the query is transmitted to the server the temporal element of that i think has that what's been lost here the new argument that you're hearing today is that despite the entire way that this case was framed the last two times it has come up to this court now the argument is it's ok if a system doesn't colleague device sending an invite push and asking that colleague device this is the apple system now asking that colleague device would you like to take this call only if the answer to that question is ye by the colley picking up the call does the server quote unquote determine that the calling is on line so let's say the colley decides hey i just don't have time right up to this call then the server with think that the person's off that goes right to this point the server when it makes that invite push in the apple system and this is a quote the server does not know already whether that kali is on line or not when the colley answers and that message is transmitted back that is the point according to straight path where the server determines that the kali is on line but i think judge still you also made the point that there's not a site in the experts recitation at think the phrase the district court used to describe that was astonishingly overbroad it's also the wrong question that you know the question is not are you willing to accept my call the question is are you one mind but the important thing here i think too is  at page sixty six eleven what street pass expert says it is because of this series of messages that we've been talking about when that callie picks up that call and signals that she's on line then the server determines that the colley is on line at the time the query is transmitted to the server and that's it is completely unsupported by anything in the record at that point that your adversaries arrogant as that when the person picks up and there's a response back to the server then the server is told at the time your current curry i was on line because i'm on line now several seconds later even a minute later so i must have been on line before i think that's what h i think that is the problem is that that runs straight back into the the claim construction that this court offered in sip net at the query has to be amiss is the phrase that the panel used calling for present status information at the time the query is transmitted to the server what is the present status of this person not is this person going to be on line in a few seconds is a person to pick up the phone in thirty seconds after it rings for a while what is the present on line status of this person now this whole question about tracking versus checking which has become now the focus of straight paths argument this third time up i think is a red herring precisely for the reasons we've been talking about but more importantly when we talk about tracking versus checking there there are a couple points i think on which we would agree with a straight path that checking the database what mr wood darcy straight paths counsel said in the earlier argument is that you don't need perhaps a database this is a joint appendix seven to zero five but you do need some way to constantly keep track of status and what he said was constant pinning constant checking so you may not need a memory such as a database which is the way the patent frames this but you the server has to have the capability to know at the time the query is transmitted to the server whether someone is or is not on line not whether someone chooses at some subsequent point in time twenty seconds later to pick up a call because that is the wrong question do you know how the prior words the partner that they were attempting to distinguish the are out of that work i mean it yes is the short answer and you can actually find this in the samsung opinion so this is six ninety six federal appendix page ten twelve it discusses both the wins and net bio wins were just about checking registration databases is not accurate those were recitations that this court drew from that people had proceedings that preceded that particular opinion so the difference here i think is and this is an observation of a prior panel member made the straight pass counsel what stray pass counsel was able to preserve its very very narrow what st pat's counsel was able to preserve against a challenge of obviousness was this idea that when a caller asks the server is the colley on line at the time with my query the server has to know the answer the server can check the database the server can constantly ping all of the registered devices but the server has to know the answer not at some point thirty second admitted that cisco's servers have stale ip addresses there's no dispute about that just like the net bios and when system second cola admitted that at the time of the query which is the claim for structure which is the language at the time of the query cisco servers do not know if the cold phone is on lastly cole admitted that the two hundred ok message that they rely on as a response to the query didn't even exist at th answer the phone how do you spend your adversary's argument that at that time the query of the query language refers to when it's connected in other words that the answer that question there's a couple answers to that number one the language of the construction defeats that argument entirely because when you look at the construction it says at the time that the query is transmitted to the server so the query going from the server is from the calling phone to the server that's the query time and that happens the claim construction requires you to have an answer at that time when that query gets to the server you can't with their without an apply b n c record that one though it doesn't even work in this case retrospective because they have no proof that just because somebody answered the phone that they were online earlier it happens all the time in these systems where people go offline and online as long as they're on line when the phone sorts to ring it doesn't mean they were on line at the time the query went to the server they have no proof of that they're relying entirely on their experts inference which isn't based on it but if you think about just stepping out practically think about what they're actually arguing here he took you t appendix what's happening there in the cisco systems these are telephones these are regular handsets with numbers they're arguing that because you dial that phone because somebody's on their other side here's the ringing picks it up that that is somehow answering the query as to whether you're online it doesn't even make any sense with the invention was about is you're supposed to be you're supposed to know before you make the call to the colli phone so th think about how that system works a person who wants to make a call picks up the phone and dials the numbers that then goes out and goes to the database and gets an old stale address and then tries to make the call for things can happen at that point the address is wrong and the call this you made the phone rings but nobody's there answer it or you're home and the phones are ringing and you decide you don't want to pick it up or you pick it up an answer it's only in that last option where you pick up the phone and answer that that you hundred ok so you know all those other scenarios where if it's a stale address or if the phone rings and nobody answered it or somebody chooses not to there's no two hundred ok call back there's no that's not a crime in answer to a of whether you're on line because you are on line and two of those scenarios where you don't answer the ringing phone and you're offline when the address is wrong but none of that information goes back to the server this is not what the invention is about this invention was about finding out if somebody is online at the time you make the call and in particular if you look at the things that the plaintiffs said in the prior the prior litigation is here with respect to tracking this is from from simply that briefing that went up to the to the score they said the claimed query to determine whether a process is currently connected to the computer network at the that second step the connection server could not know whether a processor gone offline and could therefore only determine whether the process had at some point been connected to the network not whether it was currently connected at the time of the query and th for the desired point for point communication and they've said that over and over again their system tracks whether you're on or off line prior to anyone trying to make a call which you read the requirement of having a database and the claim or would you say it doesn't matter how you do it but it has to be real time right now it can be performed through a call to the caller that's a good question your honor i would not have ready to claim as a matter of claim construction database at that moment and it has to be able to make a binary decision this is what they said to this court they said it has to have a paid database and it has to make a buck and that was in the context of a particular part that was using a database isn't that right no they said it with respect to the patents if you look here's the next quote the binary decision has to do this is counsel for the binary decision has to be made by the server then because it takes the connection server under the patents is required to do different things upon the decision and determination at that time they go on to say the good to a question from this court is the difference in your invention not in your embody me in your invention that the database has to be updated when somebody off answer absolutely and i say that for two simple reasons one is it requires it and that's the actual language used by the patentee this is what they said the next thing in the court then asked another question saying that we should read database into the claim but what i am saying is from those comments and from what the client restriction is that server needs to know at the time the query comes in whether the person it's going to then try to call is online or offline when you look at the prior art the wins in that bios they operate exactly the way cisco did they have stale information in a database and then when they when somebody calls into the database they use that information to reach out to the caller and then if they sit for six and nine for thank you thank you very much let's start with the claim language because there's been a lot said about whether that determination has to be made or whether it's aquarius whether it was connected at the time the claim language says this is seven o four claim one code for transmitting to the server a query as to whether the second process is connected to the computer network at the time aquarian was transmitted which you are asking for is whether it was not only that the call the end point was online at the time the query was transmitted but it actually determines that the call the end point was online throughout that period you have to credit that testimony he explains that if you look at paragraph sixteen explains that the reason you know that is because i had a registration and i know it was online at the registration when i send the invite the check to determine the server sends the check to determine it can only receive it if it's still connected at that address how do we know it's still connected at that address and has been throughout the time because these are dynamic ip addresses if it had disconnected it would now be at a different ip address he explains that rationale so he explains that the server determines that the kali process was online at the time of the query which is exactly what this court's claim construction requires and it does that before providing the ip address and before the caller attempts to establish the actual call which is the unmediated point to point call we have to be precise judge about what the call is and us to question judge stoll about whether but does the winds net bios attempt to place the call your honor i beg you be precise about the language and use the claim construction of the claim language which is talking about the point to point line that's being established but is the answer to that question i did as the answer that the answer to that is the key to this whole thing which is in wins that bios there's a query to the server and the server point of this if you look at the last step of claim one it's the program code responsive to the network protocol address for establishing the point to point communication late that's the code in the caller process connecting to the process ok so the difference is that in the winds net bios prior art it returned the ip address that was stale and here the server checks to determine that it's online and was  online at the time of the query before providing the ip address whereas the prior are provided still ip addresses for the caller to use to try to establish that all the accused products never do thank you thank you very much th