i have knowledge of his credentials in fact i have intimate knowledge of his credentials because he is my current law clerk and has been for the last eighteen months ryan was a graduate of berkeley l school and would also has both a bachelor's and a master's in computer science so he is really just one of the smartest people that i've known in this area and i've been very happy to work with him brian's also wonderful guy even if he's desperate to get back to california out of the heat here in d c we have a lot to congratulate congratulate rice for not just joining our barn today  on back to california back in gibson dunn and he is here with his wife where she was mabel and mabel is going to have a baby girl so they're both going to have a baby girl so a lot of congratulations to ryan so i moved his admission and the honorary admission of their baby girl r proceedings are generating a substantial number of appeals for written decision here provides an opportunity to lessen the burden on the court going forward and to increase the accuracy of dependability of the decisions being appealed by clarifying the legal rules that must govern these proceedings including in particular the proper construction of means plus function terms under the p r i and proper application of the rules of anticipation now regarding the claim construction claim one recites two means plus function elements and the misconstrued both with mirror image errors for the first p tab assume that under the b r i it could adopt the broadest possible structure that could perform the claim function rather than the corresponding structure actually described in the specification yes just to put that command and even if we were to agree with you on the claim construction issue here isn't it's a case that even if we had dropped adopted your claim construction the one that you were advocating even your claim construction which the piece tested as an alternative you should prevail understand all evidence i guess right that's where we that's where we can end up in the identity means notwithstanding your argument this is a legal issue in this has to do with global holes to fill and there was a brief discussion about whether it would be obvious to add an empty five so that's a point e m c says well what you know there's nothing more to see here whether the m p five was in the prior art that's it that's absolutely right and the eight hundred sixty nine then in the final decision a fifty three the rejected are argument based because it was quote based on an orderly airplane construction and then held quote the claim function associated with the existence  encompasses determining whether a file exists in a registry or people so it's effectively right out of the system and four out of the event identifiers elements from the function now and what it did was the one sentence that you just cited to us the people have used the word system consistently right am i wrong about that i mean thirty times with saying in the system and then your argument is that it's some point in the game they have this quote that says in a table or registry so they change their claim structure is that what you're telling us well there is a piece have been talked about system now in our position that was saying two different things it was basically the evidence was that is this is the object at a particular location in the file and as we have lots of testimony from their expert saying well it doesn't tell you what's in the system and tells you what's in the file now the pizza did it what it does talk about system but i would i would point after to constrain the term this way and what it did it looked at the at these at the specifications said well what we see a structure here is a true fall registry which is a registry of true names and then it is looked at with dylan and said well we've got here a database that has a lot of identifiers in it so therefore that's the same say but this to claim doesn't call for a red a registry with multiple identifiers with more than one identif it's called for determining in the system by examining the identifiers of a full reality of data items in other words in other words the function does exist is comparing more than one works woodhill doesn't look at a whole bunch of identifiers it wants to decide how does this particular part of this particular fire change and it decides that by going to the file going to the right offset location  file and then comparing the the current identifier with the one that's found there if they're different it's a competitive one to one comparison it's not a plurality comparison if they're different it swaps them for the same it does not that this is where i mean this is sort of squishing two issues i mean you made that very clearly and i understand why it's a claim construction issue i think not and you're moving into an area which you really didn't press which is whether or not there's substantial evidence to support the anticipation finding right i mean and my parsing them the wrong way am i missing something in this isn't really a claim construction argument that with regard to what's and would tell it seems more just a substantial evidence question nine tenths patients if the court once to look at a second as a special events question it can but i but i do think this is a claim construction issue because the point is that the court first said this is this is what the plane encompasses and then it found something that is compassed this this construction in the prior art so the point about describing woodhill is more to show you that it was a harmful but to claim construction is harmful because in fact woodhill never  not at all your honor to be all right does apply and in fact if you look at donaldson the court and distin donaldson said yes the b r i applied to means plus function claims and here's how it works it said the broadest reasonable interpretation is the one the specification and in fact that's explicitly what it held at a forty five of the identities you can read that it gave as the reason for its construction that there was no requirement to construe the term to cover the structure disclosed in the construction of the structure but the point is that the p tab did what or what the court said could have been done and tell us e g if the same thing looked at the structure and then said well based on the structure what's the broadest possible claim the broader fox possible functional language that makes sense but what you need to do is you need to have the structure and you need to have the function so you need to have a structure you need to have a file with a plurality of identified identifiers in it and then you have to have the function that that that structure met up with the right function if i could briefly turn to anticipation as a couple issues there i don't know if i'll have time to get to both but but the first is the misapplication of the rules and that money now the basis for claims forty one claim forty one requires accessing  data items using the identifier where by accessing further it further and campuses determining whether it's the date that item is present and then touching it if it's not present now the what the did was it said the audit procedure satisfies accessing that's described the color of each infertility and the back to procedures procedure satisfies determining a such a but the piece having to recognize that the audit procedure which is said access comes after the back of procedure which is said determined such so a just doesn't make sense but be under net under that money and you can't just you can't combine these distinct functions now with the p tab held in it consider this issue as a legal matter and it says no we can that money and is not is not is ok here because the the specification says that these distinct functions quote unquote can be can operate with other functions to form one unitary computer program but isn't there a distinction between that money and in that in that in that circumstance the protocols more mutually exclusive and that's not what we're talking about here i think we are in fact what we're talking about here is even worse because the protocols not only different they come in the reverse order but anyway the vague the point of money in the fundamental point the mutually exclusive money and did note that in a footnote but that wasn't the basis of the holding the basis of the holding is that the elements need to be arranged as in the claim and here they're truly not and furthermore the idea that what the p type said was the the sort of critical question was whether one computer program could run the separate functions but they need to be arranged as in the just taking that from general concepts from one case and importing into another doesn't necessarily work if in the second case the arrangement isn't critical to the operation of the system well i think the arrangement is critical here how can you determine something with a determined something is local if you haven't first accessed it so i mean that this is even this community even stronger than that one year because this is a case where it's like being greedy and you know work you have to do step one step two step three and they're not they're not disclosed that way there's no question and if the p tabs rule is right that you that the point is you look for whether one computer program can do it then you could combine procedures from a start up operation and a shut down operation because they both there is there is neither express nor inherent teaching of access using identifier and what the p time held was that there was no need to explain because it was old and well no that's a sixty seven sixty eight but that is not proper to their experts it was not required and three those are the the two reasons based upon what is in the intrinsic evidence those two reasons by  a clean construction of the other side in terms of the cryptographic stuff so i think it's not a question of claimed signalling cling construction for obviousness it's just saying the implied their point construction and still reach the obvious station where they define the function and they define the structure when you get to page eight fifty five they fired that claim interpretation too would feel and what they do is not redefine the claim to her protection they simply take what they didn't get a twenty and say the structure includes step asked to thirty two none of us disagrees with that step at two thirty two it's looking in the true file registry and then it says would have told just that so they've taken the function they've defined they've taken the structure which we actually both agreed upon and they said s two thirty two is looking up in the true file registry and would fill does that seem like when i think sort of went backwards here they said we're going to find a structure and then then we're going to say that the function and whatever that structure would get us to act i think that's the two parties as to whether what satisfies or not so they say here is the function here is the structure and that structure right at two thirty two is looking up the true file registry eight eight twenty eight forty one and if you look at this through important parts of it like draw the court's attention to them in column eight at line sixty three you will see in this way  look at binary objects even if resident on different types of computers and a heterogeneous network can be recognized from their identical binary object identifiers so you're looking across the binary object so the board did actually this is a serious lessons question we submit it to find the claim interpretation function structure if then talks about when you get thirty pages later the performance of the function and referred specifically to column a and then it said now let's look at the structure that performs this is specifically disclosed in what cell and all they did with the true date registry is to say to disclose structure but you might look at more than one of the location and the board acknowledges that and that's one of the reasons they refer to a blind sixty three so in turn to sense that you have to look at more than one location both column two in column eight tell them that you do and then the fight but this still it still seems that when the contemplating looking at a particular location it's looking at a versus a broader sense it's looking at actually on substantial evidence questions but the board we also suggests got it correctly if i turn to claim forty one and this question about that the audit r it has three different components it has a backup and initially then it has an audit then it has a restore and the idea that the board got it refers to is simply wrong and if you started a seventy nine and i apologize for going through in detail but if i take you to four different sentences i think you'll see that they got it right they got it in the right order they got what would bill did correctly so it's a seventy nine if you look at the last sentence of the first last part of a full paragraph to begin the refine you will see at the end that site e m c has replied that it is actually the describes the first backup procedure but then if i turn to page eighty and i look at the last sentence of the first paragraph to begin therefore therefore if a binary object ever was lost or destroyed at an entire site e g described nineteen on local computer or remote backup file server twelve would help indicates a copy of the binary object stored in another storage area may be copied to that site and site nine lines of thirty nine to forty five that is the restore you've backed up you've now done an audit you find out there's a problem lost destroyed and you restore and column nine line thirty nine forty five is the portion of what killed the talks about the store in the next two paragraphs you'll see that the board language that they all disclosed unitary systems that were intended to work together and in fact the board noted that in the seven nine one patent the system had two components calculating the true name and then a true name fire registry and what should we do with it they were part of the same system on the next money and issue without a doubt the decision to self says in the  saying why it also is a factual issue that is determined by substantial evidence the board's determination of what a data item was was a collection of inner files found the only argument made to you is that the claim should be construed to not only require no or live in part but also don't intervene in gaps that would be incorrect legally but it doesn't matter because what the board found to be the data item which is selection of in a file has no intervening parts no lacking parts no intervening parts of your philosophy gaps so again even if you accepted a quickly on the on that last issue that was just addressed i would just say this here's the quote from four sixty nine the parts or files make up the sequence even with made that method that included between the parts so that was the court's finding it wasn't that there was no parts between the parts it was that it could ignore the parts that is a legal issue had it coming or the part that long and found that there was a sequence that was on either and either side of  right right that's right but but i mean and that's a legal question can you have a sequence with intervening non sequential parts and that's what the court said and our i think the key there is the word consisting of that's a term of art the talking about the restore i would just point the court to seventy nine in the appendix and here's what the here's the title would hill's backup procedure discloses the trimming and fetching elements were cited to claim forty one the court did not look to your store and figure five j shows the restore and it shows step one get the object step to restore step three calculate the identifier so what it does not teach using the identif about previous values she is comparing the current with the old values not really there is only going to be one but the point is that might have changed more than once but you're always comparing one identifier with another that's the teaching of w and the heterogeneous part for comment from from column a that he that he referenced is just saying it doesn't matter whether you open up the file on a mac or an h p computer it's going to go to it's going to be able to  determination so and with respect to the the claim construction issues in the obviousness finding i think that's looking at it backwards that there can be no proper obviousness finding such not based on the right