no it made two errors either of which requires reversal here first over g p s objection the district court used the word pager thereby leaving open a claim scope argument that allowed apple to argue that a pager has legacy type pager characteristics that are contradicted by the intrinsic evidence but you didn't present the district court at the marketing hearing asked the questions asked apple's counsel the questions and apple's responding back and forth and the district court said isn't this just going to kick the can down the road in the district courts trueman ology and an apple said no because pager means more than just a pager effectively there's more to the claim than just pager and our counsel stated that look if you use pager of course if you say pager means just contact us and then that's not a problem but we think our definition of node is better devices that can transmit and receive information is better because it captures the entire context of the patent and that's exactly what we're afraid of it w and our mark and breathe it will be continue to flock to the district court for trial so i don't think it's fair i don't understand how apple characterizes it but it's not fair to say that the district court said well give it give me a definition of pager and have made our objection but we didn't just do that if you go to the objections during instruction and this is j two six two seven three three two six two seven seven we specifically stated that apple's presentation quotes creates an ode to problems we flagged to the district court not just during the marking that throughout the trial there is no two problems and then we said that shirt of way to deal with this issue is to give our construction of heaters like this is all wrong fourteen it has features like that of compression and decompression and figure eight has a pressure sensitive keypad has all these features i just did not exist and to use an analogy if you had  things that you requested other then please go back to our original claim construction proposal that doesn't use to have the state of the record right that is correct there are two parts and you accurately stated what we asked for in her interactions and i i don't want to overlook last point which is we asked to go back to our construction which we think is the correct one but yes that is correct and so it has come to that i mean we were promised the trial became an issue about what is the exact scope of the work the words that i gave operate independently captures the point well enough well if you can argue about independence and that we're going to i want to ask you about that just on the instructional point or what i do when i think it's still that conclude in the signing where the regional operate independently instruction was good enough on this point was whether apple actually not only inched up to the line many times but crossed the line and actually suggested something that was misleading i'm not sure that it's beyond the trial judge's discretion and she was actually sitting there and we were to conclude that here apple never quite showing that at a network show you research it with a telephone number you had literally arguments on this term i looking at the rule one thirty one f liberation alex this particular vision operating independently and that's why it was definitely even on that particular issue claims girl putting a the data network and the claim well that is recorded here is it imported the limitation on network into the definition of the device of the note which is entirely inappropriate and so because of that even if you assume that the district was correct on that point it's still left open the exact same arguments that all sides made it out of furthering the prosecution history and that's what i tried i think we are in a little bit of uncharted territory or of course we have to say it's not just an ordinary me handheld computers were used to satisfy the cerm and so now of course by the way the one thirty one declaration was filed it's a swear behind prior art that was a handheld computer so in that sense and if you look at the context both inside and column one talking about the state of the art was generally one way legacy pagers and using the telephone to call back and number two if you look even at the one thirty one declaration which talks about the eleven separate reasons supporting that instruction happy to go through the intrinsic support for that but councils argument focused more on the other micro issues i'd like to turn to that first here recess and it's it's i guess the word pager is a perfectly fine thing to do it's all over the specification it seems on the other hand as though that word is extremely likely to trigger misleading thoughts in the minds of  wagerup what's the right approach to claim construction if both of those premises are true so here i think judge poe took exactly the right approach first she viewed the claim construction dispute that was presented to her by the parties and that primary dispute was whether it's mostly limited peterson at the mark been hearing she asked if either party required to requested a further construction of the work peter a we require further construction or we could be i think in the in the first half of the argument they said my recollection of the record was that they made two requests that were pretty clearly formal no because it's a telephone there operates on a telephone network and that's different from a feudal system and everybody agreed including pekinese expert that telephone networks and paid networks are two different things so what apple's presentation w it namely that the accused it device is covered by the claim to has programmed operate on a network that is a telephone network what was the telephone network that there they don't operate independently and that it's not admitted that eight to eight for one seven so even seven apart the issue of what is a pager independent from that could be both either in a cell phone they never show that they never had the evidence to show that particularly when we look at the operates independently requirement because g p s own expert admitted on cross examination that the  fall down without the telephone network component so there's no reasonable jury could have found on this record that the accused protocols operated and we from telephone network so we do think that is probably the simplest wa protocols are working this on a telephone network and that's what as you documents in a question is about pagers versus telephones were designed to show that it's either this type of network or that type of network everything we've got shows this is a telephone network and again relevant is in the seven zero three one seven one six file history at page eighteen and nineteen of the response to the final office action there is a description of the interview between the examiner and the patent t l the distinction between nodes and pager and how nodes more sophisticated because of and it's allowed by the written description because no capture sophisticated and it's on the overall file history it starts on page thirty six and it's page eighteen and nineteen the response to the office action so and then of course in day six fifty seven is wind and rule one thirty one declaration for specifically talking about telephone switching correctly and then in the transcript at page twelve seventy five not today but decision that were from their birth talking about operate independently we're talking about the data network goes along with it not the telephone and talk column one talking about the king of the telephone a con somebody back that is a huge distinction especially given the other claim on here which is that at a network and importing operate independently into the definition of node is not make any sense given that other claim element and i do want to come back to a couple points on this distinction between on one hand  doesn't that in the matter however you characterize the network whether it's power based or protocol based or whatever it is as a concession g s and is that with g s it was clearly a telephone network but it's look bigger one in figure three shows shared resources ok so is that the reason why the network would cope fall down it's because they share towers right it's not that the protocols are necessarily the same it's because they share the same powers and that's exactly what happens in figure one figure three so even assuming that operate independently should be the definition of note that still leaves open the claim still well it's different from what is in figures one figure three which is the sharing of the resources so i don't think it's enough just to say that g itself resolve the issue i mean look you plug anything into the album and you're sharing the resource of electricity it doesn't matter that there's a you know that they share a tower in this particular circumstance and the fact that it is a pager i'll just close with you know