let us case for argument just sixteen two four three nine eleven engineering vs microsoft consideration that this issue because it was raised as an affirmative defense not as a counter claim was really better or more appropriately an alternative basis for firms rather than across the people so given that consideration i don't think it matters much but we're going to keep your time is the fifteen minutes and you can you're free to raise your alternative defense in that time frame but that won't be our back and forth on the cross as you understand i whether turning off the radio transmitters necessarily requires finding all the power again the same dimension is not required and will not work if you call the power to the radio because you look at the district court's number and you think language and that and judges who are viewing claim constructions have got to give language its plane in or near a meeting and on its face it has a plan an ordinary me i mean so to begin with the proposition that that turning off is different th patent he has that has not drawn us to any indication that turning off means something other than turning off right correct wrong and the fact that in the prosecution history even though there's no interim ation about what exactly was done there was a you know we could we construe statutes around here quite frequently to when they had one use one term and they changed it to another term that at least connotes or strongly suggest that there's a difference between the two terms because why would them go through unnecessary exercise and changing that is so that's what we left in just you mention the n aker billet e but i think there's a serious factual dispute between the parties  was really focused on when you're transmitting data and not when you're not transmitting data and then according to the claim you want to somehow turn off th hospital explain that you would make such an one and first of all i think it's important to look at their their human from power down to turn off as part of a wholesale rewrite of the claim so you know wasn't here and that these particular words were changed forever apparent reason language which would at least indicate that there's a difference between the two we don't agree on or and then there's a very good reason for that and that is if you look at the arguments that were made in it's a little bit difficult to tell from the record oh can't we make certain assumptions when language changes as joe malley said not in terms of what it necessarily means because we're we don't have much on that at least in that section the prosecution history turning up at least the better meaning one could say is that means turning off right right cutting off our i guess another way to ask the question is can you explain why th had tourney chose to delete power down and in exchange for that deletion add in turning off what do you think was in the patent drafters mind when he did  very even conventional looking and i think everything almost started with the work where where the transceivers do this and where this as a nurse and it looked a little bit strange to me and so there wasn't this really rewrite of the kind of structure of the client but but there's really no reason why he did it we have no real clue why he did that we don't agree would you not that this particular claim is a bow power level changes when no data is being received right in that section what it is talking about is a power level information being transmitted in a packet so by definition it is a circumstance in which information is being reply and that i would like to turn briefly to the author of the ground to affirm so if you would agree before we get that last point that if if we were agree with you on the claim construction that you rather than off during the prosecution it's a lot like the board of regents of texas case where the claim language was changed from said to each to the you know simple small words like down and off but the meeting in that case was found to be important and the meaning of your should also be found to be employed in this that matter is it their argument is that it's inoperable under this that can now i know your position is that that's not correct and you can tell us why  correct but if it were that matter would that be dispositive it would put a heavy burden on us if it if if if if it were an offer will there are cases like south america saying that if the claim is clear to about it if it's broken the turning off if you really mean off with will break secret this time and that's the main multiplex it is because they say well that would turn off the clock and how would you know whenever to turn it back on and there's really three problems with that was that it's a new position in their reply so not only was it not for the four it wasn't even in their opening brave so we've never had a chance to respond to it there's no record but beyond that it's just a turning argument it's not what the of it's not what the prosecution is recent not even what their expert that the ration sat if you go back and look at the appendix of that page for ninety two to ninety three that's where their expert talks about this plane construction and he says sure he prefers their plane don't it's not an operative renie and the expert did testify that the whole point here was was saving power consumption that you didn't have to turn it off to accomplish that are a lot of ways to save power that's true but the specific way that specifically resided in this claim is you save power by turning off when you're not using the transmitter you know turning it off all the time obviously you're using power when you're transmitting but this this the television example or a clock radio i turned off my clock radio or turn off my t v there's still power running to the t v there's still power running to the clock radio and your honor that's an example that a lot of put i n their brief that's also not considered by the experts another record but i would submit that when you turn off your t v that you and that have turned off the screen you've turned off the part of the t v that receives t v signals you know from the or from the cable and so you turn it off as much as as you as the consumer can turn it off yes we all though as users of televisions that the parts of the t v that are still out for most notably the front panel  and that's why we have to be really careful what this claim says gets turned off it doesn't say the whole device gets turned off it doesn't say that the game console gets turned off it doesn't even say that the entire r f module gets turned off what it says is the radio transceiver gets turned off and so that's very narrow and very specific and so to an engineer in this field they would understand that that specific thing is the component that is getting turned off not the entire device maybe it's not all of your chat and certainly it doesn't have to be the circuit that turns the radio on and off and so this is why this is the main reason why they're wrong on the end opera probability is the thing the terms of the radio on and off doesn't have to be the radio itself so the so you don't turn off the switch you just turn off the radio and it has the timer to be running in the switch that turns the radio back on at the right time when it comes to claim construction principles do you think there's  one size fits all rubric in the sense that ok we see some disputed language here disputed term in a claim and now before we do anything we have to look at the words in the claim themselves and look maybe at the other claims look at the specification look at the prosecution history and then conclude for after drawing from all those intrinsic sources can we arrive at a clear meaning of the claim or are there other instances where there's words in a claim and they seem pretty basic and so maybe you just start from a premise of there's a very commonly understood well established there a one size fits all or there are certain circumstances where you do one and certain circumstances where you do the other what's your understanding so so my understanding you that is that you know there are actually i think two lines of cases right now in the score that ended emphasized the we should start with the entire intrinsic record that you can't divorce the claims from the entire trip in terms of record and so you know even even if you don't have just this evolving we're not arguing that there is a disavowal here or needs to be if  we were arguing that op off means on well then we better have it it's about lessons we're saying off things off we think that you know you do need to read the entire stack you need to read the entire prosecution and come to a conclusion about what the intrinsic record means as a that's exactly what just started here in addition to looking at the ordinary meaning of a word like often everyone really does understand it's like sat in each hand and on and off these are these are these are common words grow up and reach the same conclusion that if you start start with off means off and then look at the intrinsic record to see if it confirms that the answer is yes if you start with the intrinsic record and see that they change down off well that's that if you start in that direction that that further elaboration what inside your head off means and so now you've run to a dictionary definition first and then after that go go consult the intrinsic evidence and is that therefore then  the how's that understanding and there's nothing wrong with that we can't start you know that pretending like we don't speak english but it's not to say that dictionaries are apparently we're not advocating that we go back to that era that you know you have to read the doesn't disclose multiple power levels that's not at all the joy it just starts that if you look at appendix fourteen he simply said there was no intrinsic support for the idea that turning off means lower power consumption he never says one way or the intrinsic government to support the view that a person of ordinary skill in the r would have understood the claims to be using the words saving power by cp emphasize turning off to include methods of saving power other than simply shutting it off so that's what  he doesn't make any finding that the specification doesn't talk about reducing power during transmission he doesn't talk about he didn't make that mistake o