you i move the admission of daniel separate and sternberg who is a member of the bar with us and good standing of the highest court of massachusetts and new york i know i have knowledge of this credentials and i'm satisfied that he possesses the necessary qualifications  as i've said before these are bitter sweet times for us on the bench because we've had the pleasure of dealing with terrific clerks like d m for a year or a year and a half and then it's so sad because they  the morning of may please the court the two most patent said issue here were directed to a sound reproduction device that connects to a computer where the sound reproduction device in the computer send signals back and forth to each other and the claim construction issue concerns as with the briefs i'm going to direct my comments to the six eight two patent primarily so the claim destruction issue relates to claim twenty five which says that the audio system of claim one to be pending claim where the sound reproduction system is configured to respond to signals received from the queue so configured to respond is the disputed phrase abodes proposed  configure to respond refer to configure to provide an answer or reply in response to the computer and not simply take an action as s t i argued in the case is actually very much like up pretty much all fours with the p p c broadband case that came out enough in february which dealt with a very similar issue multiple competing dictionary definitions  you just like in p p c broadband where there were also of there were also two dictionary definitions that could have applied and just like in p p c broadband where the term that was disputed was used in the specification only in connection with one of those definitions here too the term in the specification respond is used only in connection with the depth the definition that both proposed say something in specification and then in that and that's used the way we say it it's used and they ignored that because they said it was going in the wrong direction it wasn't the the right component responding to the the other component as in the claim but it is the required claim on it as it is instructive is configured includes components which are configured to respond under their construction namely take an action in response to the si provide a slam dunk for you and then it points out which is unassailable right the claim differentiation quote is not a rigid rule but rather is one of several clean construction tools so we've had numerous cases in which we did the claim the pending claim has to be different in scope and now or than the independent claim and the in the cases that reject that typically have something in the file history where it's rebutting the presumption or some other reason for doing it and none of that is here there's no evidence of that here really there are cases where we just say well we and there are analysis of the other factors including how we meet this that and so often it's is sufficient to try i think those cases given i think those cases generally i can't say for everyone but i think those cases generally point to some other evidence like the filed history or that there are other elements in the debian dependent claim in addition to the one so it's up it's not a clear case  have time i'd like to move to the evidentiary issues the major problem here with the evidence for your shoes is that the board disregarded its role as a board which were to use the arguments of the parties and receiver to the computer to control functions on the computer and what they want to do with their combination is move the i r receiver to the altec lansing speaker and have the altec lansing speaker central signals to the computer and that's not to the a were aligned on the truth of the matter asserted so the sequence we have we have objections to evidence there's a deadline for that we made objections to irian on hearsay and authentication grounds we made we filed a motion to exclude i responded to the motion to to exclude and what they said in this and both i d r as we have to we have four related proceedings here but in both sets of i p r as they said the exact same thing they said because exhibit ten ten which is irene is offered for what it says not the truth of what it says it is not hearsay and they disclaim flying on the truth of irony and because they didn't think they needed the date and they later realized you can see this from their brief when it comes time to file their brief in this court they realize that they have a hearsay problem and they come up with brand new arguments never raise before not in the record about the residual exception and about an automatic machine generated time is we actually tried to do that after the first set of i d r us so in its final written a specific in the first set of ideas the board got new evidence they went to the internet archive they got a blank internet archive standard affidavit and they marked it as a new exhibit i think it's exhibit three thousand four never introduced by any party never raised by them and we filed objections to that we filed objections and we filed  think a motion to exclude that and those those are in the appendix but they were actually expunged by the board from from the  our objection to that is on fourteen twenty five nation all of the claims are found in ballot bowl is appealed to the sport and that was the state of that at the time of the briefing since that time withdrew its appeal in the hopes i think of finding a ritual merging some procedural stuff but the one in a notice of jack which was procedurally out of order and so the order issued a decision saying you can't just file something like that you need to request leave and you did not and that was that was what the order but there was no request for purports to be of are a record of the wayback machine there's no question that it is in fact a record of the way back machine because the board separately when they confirm it also found distinctive evidence and whatnot so it's it found authentication then the right and so how do you prove that that was the day when these things all very rarely come up but i guess they do come up they certainly come up with a way back and she certainly did age have off actually it is your honor which makes it not hearsay because it's done automatically and that is all s machine design no fax machines no automatic means there are decisions the say fax machine dates are actually not hearsay at all because they're done by machines it's not the spoken word human and the internet archive information and other courts have taken judicial notice of aspects of the internet archive their decisions that describe how the internet archive works this isn't brand new here and in fact in the materials from the internet are going to bring take the  object to the admission of evidence or you can say the evidence can come in and now the question is has it adequately proved to be prior art that would be a substantial evidence fact finding question the second the first one as to whether you admit it most judges especially in a bench trial they'll say let's bring in then i'll figure out what it means and i think that that's the practice out here all they need is reason to think that it's that day says you can't cross examine the person who created the reference correct but it's not the it's not in that context it's not offered for the truth of the matter asserted so for example if the reference says the sky is blue you're not offering it to prove that the sky is blue you're offering it not actually what it says is true it's that people in the prior art would be aware that it's on the workbench we we four time runs out coming of that to the first point your friend started with just the reliance on  if you ask someone to go to the grocery store they can respond by going to the grocery store that's in action or they can respond by saying i heard what you said that would be the more narrow version the bowsers argument which we're saying is reasonable actually i think even in  court proceeding put but either way the broader version of responding with an action is within the scope of the claim and the specification actually supports it in a couple of ways first of all if claim one as the board cited in his opinion claim one says a different component control circuitry in the speaker can in response to something either take this action or send this communication i think of for example turn up the volume or  send a signal to the computer right so it uses the phrase in response to in the claim and in the unequivocally broader sense of the word response but also norms both the broader interpretation listen we're not saying it doesn't include sending us a response doesn't include sending a signal back at us it's either sending a signal back or taking some other action it could be both and so the question then also is  right now of course the board didn't take that there would be an extremely broad range of motion was often hypothetically possible not by law that would be hypothetically possible for sure and i think i would agree with your honor that it would depend a lot of what's in the specification the other component of this is when you're looking at selecting what form of the word response if you're talking about of the target will response sure maybe you know somebody says something but if you're talking about that that's a human if you're talking about a machine if something can respond to voice commands well sure it can answer you like a lexer or whatever or you can instruct the robot to go over there if it responds pick going over there that is what machines do so in the context of the patent words talking about circuitry respond would actually ordinarily it's all going to be some sort of an electrical change either increasing volume doing something else and that's exactly what the prior response of some kind of electrical change now one kind of electrical change could be sending a signal but that's again this just binary digits getting sent is actually an action in and of itself so there isn't a basis to distinguish in the context of an electrical circuit the difference between sending a signal and sending a signal or doing something else and that's because and that's why it's the broadest reasonable with respect to claim differentiation my colleague suggested we have no answer the answer in our brief is that claim differentiation doesn't always apply and actually as the board found the claims are more limited even under the broader from structured so the way the argument goes the broader claim says for example audio processing circuitry and to be pending claim says the speaker is configured to respond to certain things and they say well if playing music for example is responding to the signal there's no claim differentiation because there's audio processing circuitry in the speaker already and what the board found correctly i believe is that the claim the broader playing doesn't actually require that the audio processing circuitry be connected is such a way that it's playing what's coming off the connector the limitation actually doesn't appear in that claim you might think it's supposed to work that way i give you that but the limitations not in the playing it isn't so even so it doesn't work a lot because it's not going to override the broadest reasonable it doesn't work on the facts because it actually is narrower  ve deals with donated content the no back east side talks about how third parties vacuum up i think the term was used information from the internet and standard affidavit and i see it describes how it receives data from third parties who compile and name to third parties do that and they donate and i say this is like wikipedia and judge each time says that corroborates what we've already understood and the internet archive actually has a disclaimer for its standard affidavit the question is they have f a q is this is in the record we cited at six to eight seven does the internet archives affidavit mean that the printout was actually the page posted on the web at reported time and the answer is the internet archives affidavit only affirms that the printed document is a true and correct copy of our records it remains your burden to convince the finder of fact what pages were up when now you have archived offers other services you can pay extra you can reimburse them for their fees and they will search their records and they will determine where this information came from who posted it when it was posted and in fact there were cases in which a representative from the hit hard drive is called t testifying about us and we cite the benson case which is an example of that where you can actually further investigate find out where it came from and if it's appropriate if it would come in you can offer it and bring it in none of that was done we're talking about  really mind there's no evidence that's created by machine if you if you scoured the record every response they made in terms of the evidence it doesn't come up until they're brief in this case the internet archive doesn't say it's done by  is donated content from third parties like wikipedia there's a blank standard affidavit that the board itself got not filled out not signed by anybody and i'm trying to  but it doesn't come in as evidence what we're talking about is something that has no source if there were if there was any evidence about it being machine generated we would be able to investigate the machine so the fax machine cases say faxes can be set incorrectly we have to determine if it's setting correctly radar detectors you get to determine if it's done correctly was the machine programmed correctly was it calibrated but machine generated doesn't come up at all until this