the district courts primary error was determining that the one twenty five patent prevents all international access call as opposed to a select subset of international access call the relevant language in disputes is that the invention will prevent a call if it's attacked pre determined signals used for international dialing the district court interpretation that this requires the prevention of all international access improperly substitutes the word all for pre determined two terms which have very different meanings this court has held a many occasions that the word pre determined means determined before hand if the one twenty five patent requires the prevention of all international access of all the time is predetermined defined in the spec and it is not defined there are many examples cited in the brief where it talks about selectively enabling calls but there's no actual definition and when that's the key you look at the plain meaning which is to determine before hand if under the this or court's interpretation that word has no meaning in the patent which is contrary to claim construction law which prefers a interpretation that gives meaning to awkward all term and signals just preferred of codes relating to all international access calls well that was the argument that the district court made but under that would exclude of code dealing with non international schools well it would render the terms to purple if but if you look at the specification it supports the interpretation that only represents some and that it has to be entered into a table by the user if you look at tables one and two for example they only include three types of international access called for a total of six undisputed that there are six hundred thirty six types of international access calls this would not tables one and two wouldn't be exempt audience of the invention as as this district court of interpreted that there would only be one table that would contain six hundred thirty six access calls and it would never be subject to change and then the prosecution of three of similarly compelling it's undisputed even on page three if friends brief that mr king you know develop the invention for the new york port authority there is evidence in the prosecution history that they use the patent they use the patent only for seven types of six hundred thirty six international access paul you mention the prosecution history of course that's where it seems to be you have your biggest problem whatever benefit you get from it you certainly have language in the applicants claimed vention will block all international calls is irrelevant to the decision and so forth there's various others explanation of that language the explanation with your interpretation there is actually i  the district court ignored all the intrinsic evidence and relied as your honor as mentioned on the prosecution history statement first of all in order for that to be deemed a disavowal of the plain language there needs to be an expressed and unambiguous calls he set that does not it doesn't say one time in the prosecution history that it always does these statements were made in the context of discussions with the examiner over prior art and this your demeanor was simply explaining that the one twenty five pat unlike the other prop called blocking technologies teaches and it's focused on the prevention of international access called by virtue of looking at the third plurality there was never discussion of pre determined he never said that you always have to block them he was talking about the strictly in the context of the prior art and that never came up and then moreover the district court relied upon the patent examiners stiff saying that this you know the disclaimer is is supported by the fact that the p t examiner believed that it was all international access cause he didn't believe that if you go to the patent examiners own objections he has an example of a table where he says in the table that and the table is located to prevent all of the international calls every single international call was prevented indiscriminately so it looks like there's a dialogue going on here between community examiners and whether the claim understandable they're having a little bit of a beard but the one clear thing that they both agree on is that the claimed convention is blocking of car international calls not just the fraudulent right legitimate calls and illegitimate and i don't call that first of all just to put the prior art discussion in context there's two things going on number one there's other problems in technology and the examiner was saying well you've got all these call blocking technologies why can't you just use for example this paypal and just put all the numbers in or this other patent the monkee which is concerned with blocking call when the access carrier doesn't want international access calls and when he access carrier is this time doesn't do that this patent looks at the third floor ality and blocks upon or not that says there are statements in the prosecution history as well as the plain language which at a minimum create an ambiguity for example if you go to  is if you look at the excerpts of the prostitution history it's the fourth item down on the table of contents it skips around pages i'm happy to provide mine but i can also if you'd like i could provide language uses the word pre determined the stack itself contains tables there is information that was provided to the patent trademark office of the usage of the invention by the by the company that it was developed for there are so many third category of digits in the dialing sequence now and what we teach you how we're going to screen out certain of those international access calls from others where does it say that i'm sorry which i could you repeat the question your honor sure i think you want to convince us that this claim is for screening out only a certain subset of all possible international access call harassing demand from a telephone  craft and i want to know where in the spec does it talk about that concept and also talk about how this inventor achieves that results ok well i want to before i get to that point i  think that this may help answer your question because you had asked a question about the prosecution history before and i hadn't gotten to that would you i'm more interested in this question ok it actually i think is relevant to the question i think i want to clarify are you asking how how it would differentiate between fraudulent and legitimate call it could be any subset you want us to believe that it's not going to block all international calls that's what you are saying the  telephone call and then it provides three examples of six hundred thirty six as an embodiment the next table provides three and then it says it's entered into a telecommunication device which is not in accordance with the president venture w explains that how this this call would be able to take place without authorization and then it explains if you go down to the next paragraph which is roughly between lines forty the desired functions that i'm not sure about your honor because that particular issue wasn't here on appeal i could get back to you on the actual mechanics of the algorithm on com or line twenty six of the program memory one  does is to say if i see any of the following one three six or as in your view any of the following number of these codes such as a one or zero one one in the third place then as to the way it works but what this invention does it sounded to me as if it looks to the third place and if it sees one of the codes or one of a large number of potential in their national code one that it has been designed in case of claims twenty two and fifteen the call is international it's it's preventive and the case of claymates a little more convoluted if the call is not international it's a lot of in other words if it's international it's not a lot there's no equivocation in the claims about what claim what international calls are blocked or what non international this was raised on appeal and i'm concerned with what that claim says about the meaning of pre determined why does it not suggest that pre determined can be the entire set of international the pre determined signals which are used to accomplish international dialing limitation leslie limitation talk right now and why is that not when is your position not inconsistent with claims nine which says pre determined numbers one and nine others i can speak to the fact that the discussion during the you know not only in the in the in the  back and forth during the file during the prosecution file the story was about the independent claims in talking about what they were capable of doing or not doing it every case the question was just simple binary international  not international not the uk so it is twenty nine is something that in that was in existence it came into the case at some point way or we're long but it was part of the record part of the file history record but even after that was part of the record mr give me no said repeatedly for the patent office if it's international it's blocked that's my difference different from the prior art indeed the board soon rely on that and granting these claims i can't explain claim nine any more than to say that it's clear what the independent claims mean from the specification in the file history and missed those argument i think some summed up if this is an accurate summation is that when the reference to all international calls is a reference to capacity not compulsion that the end of the invention has the capacity to perform this but it isn't necessarily always going to do that what's wrong with that well i don't  it's a way of characterizing the prosecution because i don't think that's how it characterize you have a situation where you have prior art that walks some and there's a rejections repeated rejections on that prior art and the response back is  way of looking at that language it's maybe a little bit loose the language but it is a way of looking at that language to say that the distinction is i am blocking my system is capable of blocking on a international versus not international basis but i can do that selectively that i can do some international calls but it's always going to be based on international nature of the calls but why isn't that a least a plausible reading about language it did not come up until litigation when it was convenient for mr community to bring it up and there's no support no spin no to go to judge chen's point where does it say something about what pre determined means where does it say something about a less than all being blocked or how you determine that that's not that nowhere appears in the specification of file history go well it's something that's been considered by two district courts you know from the prior appeal this issue came up and was briefed it was not decided because of the the van more invalidity was the decision basi appeals court but this issue has been decided by two district courts the court in the southwestern bell case several years ago considered the final history can sort of all the arguments consider the specification in the end the different i'm interested in asking you to focus on the question which i think is the pivotal question for the cross appeal of whether the additional claims that were the claims that camino sought to remove from the court consideration and that that be remained in that case at the time summary judgment was issued and at the time yes it's sort of just to go back through very quickly the timing is discussed in our brief in detail that the lays it out in a fashion but the timeline is camille files and suit run southwestern bell he raises specific claims including the claims that are issued here as to whether or not they were ultimately real specifically there is a summary judgment hearing and one of the things the judge mentioned and it's in the in the record in the blow itself mr bell's he said you know too many claims here mr camino for trial you really are in it and it out that's basically discussion on power phrasing mr camino subsequent to that at some point files your laterally files a paper that says here the claims i'm alleging are infringed he dealt with a new you had a prior there's no court statement about mr caminos alleged withdrawal of certain claims instead what happens is the judge and self esteem bell considers a summary judgment arguments and briefing and makes a ruling not ruling on the venom or issue but caminos unilateral statement of supposedly withdrawing planes and that the solution includes discussion of terms that will support claims that were supposedly universe laterally withdrawn so the court has the the court has ever other than judge roof has ever said that claims were effectively withdrawn by mr camino is there's no doubt he wanted to do that but i don't think he effectively did that in the judges there's no indication in fact the indications the other way that the judge in texas and southwest envelop didn't see that as an effective withdrawal point and your view is once if those claims were in the case at the time of the summary judgment in that case that there's collateral estoppel here with respect  all claims all those those particular things would have to go beyond all the others i take it to other claims that are at issue here that were not additional in the summary judgment nine hundred twenty three is that right right and those those claims are going to be drawn from this case in they've not raising nine to twenty three anymore and that's the only one account withdraw i don't recall judge channel so we're going once that we're we're talking about and talked about today but all the rest of the claims that are serving in this case would be barred by collateral estoppel i take it in your view at least if the claims that were attempted to be withdrawn in the s w b case were not in fact withdrawn correct and i statement that the the community if that's he should have said that he should have used additional language that's not wouldn't that be explained fully in the reply brief why use the statement all international calls to distinguish prior art he was objections you can see and the prosecution history in general you can see why those statements were made the overall graps made it clear that during the prosecution history as do the specification language itself that it that's a pattern the first  clean it doesn't matter you can't use it for a platter a'la stoppel purposes you have to look at the eight hundred death case which is cited in our free which would show the court that that you can't use asserted claims that the basis for collateral stoppel against e question this way if you're wrong in thinking that those claims were properly removed from the s w b case and you lose this case correct i don't believe so because i really was because  the dot because the this case is different that validity argument was based on a prior south doctrine involving a different technology that's not at issue in this case and there's why does that matter collateral estoppel applies to a judgement there's a judgement of invalidity  for those claims why does that judgement not bar you from prosecuting because in a situation under the under the doctrine of prior sale in this particular instance you've got a different technology in a different plane wh you like it different than top technology that's different in a lot of ways and when you're going to live it's correct but when you're basing it on the prior style doctrine and you don't do a clue and the court does not do a complete plain construction analysis because it does  considered to be appropriate at the time were raised i assume and rejected on delivery so they were invalid the claims was invalidated that would seem to me to bar their further assertion as a matter of collateral estoppel now setting aside the issue of whether the cross i believe that it is not because i think under clatter all stop all you would have had that the court would have had to do a full time construction analysis as to those claims and those pay actually a very different pointed to some of the claims that your side has attempted to unilaterally withdraw that is that some conditions that at least the district court judge does not grant the withdrawal of those claims and in claims right i think the judge rules position there was it it's too it can't just it says assertive and those were the ones that were started at the time and that was the right answer because you need an opportunity to mr them you know as and should have an that to be interpreted in a way that actually contrary to what was what was the amended asserted claimed as of the date and was filed five months before the court ruled on summary judgment greeted the record left crystal clear think you indicated in your brief or your side stated quite clearly that all of the claims were have been invalidated and and it didn't account for the fact they are trying to par out the claims that you read trying to unilaterally withdraw i don't believe that the claims were unilaterally withdrawing your honor i think that that that was done at the direction of the court and there and that as i said you know the piece field i believe really only if your eyes have questions on the cross appeal i think i have a follow up question on the chance question which is the can you point us to the statements or statement in the petition for rehearing after their attempt to withdraw so