and logic when the claims are given their plain ordinary meaning with proper consideration given to both grammar and context the claims of the whole and inherent order is apparent in the claims that inherent order that required order of when there's no way they could be interpreted in any other way can i just ask you why you didn't amend the claims then i mean if that was the dispute if that's the whole we are all here why least if you can see there's at least some absence of complete clarity you just didn't out language in the empathy patient to avoid the amendment could have been made in hindsight being twenty twenty could the minute been made yes but the fact the matter was not and we are here we are today with the claims being as they are the claims being in pristine forms and to a certain extent with the uncertainties that are often involved in the previous case to show that there is obviously an eagerness to avoid amending the claims in any case if at all possible because there is no telling what will happen with respect to litigation in addition to the arguments advanced by the parents concerning this required order the director has issued has raised the issue of waiver which i'd like to speak to as the appellant's believe that there clearly is no waiver in this matter the director raises the issue i think of the director over aspect of the argument you're the director of the appellant's interpretation of what the director argues is that this issue that there be a required order the claims was not raised during prosecution for the board pattern appeals now  relies on heavily the interactive gift express and the first semantic decisions those were not raised before the board of patent appeals and interferences that said that does not necessarily equate to people but the issue having been weighed in right why it's a more careful reading of watson in fact teaches that while a new issue may not be raised on appeal a clarification or reinforcement of issues raised below can be a properly addressed on appeal that's found in footnote three and looking back to the appellate record if you look specifically at the reply brief on pages five six and seven which correspond to the record at one thirty four through one thirty six numerous discussions with respect to the requirement as set forth and bear to go up others concerning the requirement that a prior art reference teach each and every limitation as set forth in the client so they're not must there must be not only a teaching of all the elements but as set forth in the claim as set forth in the claim in this case would encompass that required order of execution additional cases and including the manual claims having to have a required order of steps not to mention the factual basis for that argument were addressed numerous times during prosecution and for the board is for that regard the contents there is no issue where here so getting on to that issue the issue itself  respect to something if you do require order is that the claims on their face define everything the plain and ordinary meaning and taking into context again proper grammar and as well as contextual import the claim say what they say in this case there's basically two elements that are really at issue that's the step of determining that there has been to a participant for example a known computer network determining that a participant has disconnected from the online session has disconnected means exactly what it says has disconnected its past tense it's done it's affirmative there's a disconnection it's not planning to disconnect it's not intending to disconnect it is disconnected it's done elvis has left the building the next step from that is a broadcast by remaining participants in the system sorry in the session say ok participant eight is left the session we need to make some sort of adjustment so broadcasting a notification in any of the appellant's application broadcasting a notification that there has been a disconnection again and so they were mainly after watching the remaining clients in the cohen after what has happened after there's been a disconnection so there's been a disconnection first and then there are the remaining client there unless there are a meeting clients but that's not what is claimed again what is claim appellants application is disconnection determination of disconnection and then a broadcast concerning that disconnection cohen well it's admittedly in the same space maintaining network connectivity network continuity it goes about it in a very different required you're saying that tempting has to go before broadcasting there's something inherent in the claim language that requires that yes that is the fact the language has disconnected if you look at the you can't broadcast notification concerning that disconnection until the disconnection has in fact occurred in between that disconnection and the broadcast is the determination of the disconnection this is where it comes down to the claim on its space has disconnected there must be an affirmative completed activity connection before there can be a determination of that disconnection in a broadcast by another participant saying hey guys this participant no longer here he has disconnected he's no longer part of the session but if you look at the co he's gone so by the time we see the broadcasting he's already accepted it and that has disconnected why wouldn't that fall within the broadcasting staff i would disagree it's it does come down to an issue of semantics but the semantics in pattern litigation claim construction of all areas of the law semantics are probably this one of these areas where the semantics matter most in the cohen reference as you reference there's only one entity making that broadcast it is the entity that is leaving the session and this is why i was referring to earlier as the orderly departure notification this this note of this participant in cohen makes a determination based on whatever grounds that it's going to leave that session before it does so it sends out a broadcast all the other participants saying hey guys i'm about to take off anything that i'm responsible for now would be a good time to reassign those responsibilities the other participants they receive that notification be the responsibility to reassign the entity leaves the session you can't broadcast the fact that you have disconnected  as disconnected you cannot broadcast a notification that you have disconnected if you've already disconnected you can't i mean you're saying that once the disconnection has occurred the host disconnection package can't be received by the by the remaining client could it be received yes it is or it could be yes but that's not what it's claim what it's claimed in the appellants application is determining that there has been a disconnection an affirmative disconnection followed by a broadcast that that entity has disk acted looking back to the cohen reference and this is where the logic comes in is you cannot make a broadcast to a session that you no longer a part of if i was to leave the room and make an announcement the hallway would be making enough into the hallway but i would not be making an announcement to the court heard you sort of a moment ago that it is possible for the for the information to be delivered to the remaining clients after the host has already departed it's possible for that packet to be sent and received but that packet and receiving that packet are distinctly different then an affirmative broadcast by remaining participants in the session stating that participant has disconnected which you're arguing with your name information when it arguably is the same information  but the hypothetical you offer is very different than what was presented by the examiner and the director during prosecution if this was their own argument the director i'm sorry the examiner wish to make during prosecution then there may have been an inherent see type of argument or perhaps even scenario that you offered which is also addressed in the appellants opening brief is what happens if someone does step on that plug if you look to column eleven line sixty one of the cone reference which is on page fifteen of the record if that notification is not sent in cohen and subsequently received the other participants continue processing blindly that may last for a few seconds depending on the way the network has been configured in the way responsibilities have been assigned that i'm a allow the network to continue operating more likely than not however the network will eventually collapse in on itself and fail set up so that the instant it it suddenly is disconnected without any shutdown procedures and just automatically sends a good minus people know you're your checked out could be set up such that a message sent yes arguably there's the hypothetical could take place but again that's not what it's disclosed in the cohen reference nor is there any suggestion you know one skilled in the art anything of that matter nothing was raised in that regard with respect to prosecution during  has pointed out there is a real invention here the invention does guard against unexpected departures that invention however is not claimed in claim one claim one broadly reads on the prior code i just want to clarify one of the  just made in the third step the broadcasting stuff in the claim one of theirs and thereby cause it's broadcasting notification to existing participants of the online session over the communication network thereby notifying existing participants that the first participant has disconnected from the online session in other words even though the first participant is in the process of disconnecting when that message goes out that message notifies the other parties when they receive it that the first participant has disconnected so you're relying entirely on the fact that there are some temporal that there is some time frame between the time it takes between the time the host sends the message and the time its receipt we certainly are entitled to re that rely on that fact based on the cohen reference based on the way it describes the accident process then the receipt can claim ten again on a seventeen and eighteen start home reference uses words like exit being and depart and the provision you just cited in the claimant issue says has disconnected right in this kind of a difference between the two well as judge jacobs pointed out that claim ten also refers to the remaining participants has made a very useful invention they've got the idea that you should send continuously a message and when that message is a little longer the send i'm sorry you should send the host client is repeatedly sending a message i do over and over a over again and then when that message is not received yes that constitutes the detection of disconnection by the hope so that's a good invention that's not the claim is not limited to fat invention and that's all predicated on the fact that there's require no sequence of the there's nothing in the grammar or the logic of this claim that requires to be able to claim is limited to a situation in which post has this after the host has already disconnected that's and that's absolutely correct that could well happen can it is it it can happen well there is the host disconnection process occurs locally presumably occurs immediately after the message is sent the remote clients are presumably at other locations across the world to the speed of the signal travels at the speed of light or some processing time involved that section may well take place after the remaining participants have become the quote remaining participants as has claimed ten says they are when they receive that message you can receive the remaining happen but as i just explained it's certainly physically possible takes a certain amount of time for a message to travel over a network from one computer to the next computer and during that time the disconnection which occurs locally could well have occurred and i think again i think that's as a matter of fact what cohen is telling us happens you know i can go one step further if it if it's really  out or more accurately by the time or see this is i'm going to really contemplate that that that you're going to send and a very nice second that you said you're going to pull the plug well the host computer has absolutely nothing else to do with that point there's nothing in colin that suggests that the host is still there back to float charge you know figure two d for example on page eighty seven after the host change packet is received the next thing that is done is the post to these are transferred so the original post is gone and if you know if one likes one could take that further reassigning the host duties as being the detection that the host has disconnected when the when their main computers see it the host reassignment occurring within their own processors that is also further evidence that they have detected their detecting that the first host has disconnected there are examples one could spin out of the you know elvis leaving the building example isn't bad i see elvis leaving the building yes i'm seeing that but an instant later i recognize that he has left the building you know it's it's if we limit ourselves to the instantaneous point in time where the message is being sent then yeah there is disconnecting but a second later detected disconnect  there may be something that would withstand a rejection over the common reference but that's not done here here we have a message broadcast and in that message just received which is a detection of the disconnection of the individual who broadcast a message to let me as as prose pointed out it does this does come down to the sequence of steps in the in the  claim one and there is nothing in the grammar logic of them that requires texting scepter occur before the broadcasting stop the broadcasting step is a self contained step simply relating to broadcasting a notification to existing participants thereby notifying that this disconnection has occurred by the time they receive it again were before the p t o here we apply the broadest reasonable interpretation standard the baseline rule when we're talking about a sequence when we're talking about met a metric plane like this is that the claims the claim sets do not necessarily have to occur in sequence unless there is something express in the claims to indicate that they do occur in sequence and here there is a best press more importantly i do want to turn to the waiver argument as we pointed out in our brief it was clear to the board that mr tony thought his steps occurred in that particular sequence  but the problem is the board is operating against the baseline that says a method claim deception method claim do not necessarily occur in that sequence and that's what the board is holding reflected  broadcasting step could be made by the departing host and therefore that the steps would not have to occur in that sequence it was up to mr tawny either at that time were before that time to raise these his claim nevertheless did occur in sequence and that's a simple matter of administrative law allowing the administrative body the chance to address the argument in the first instance here we've got an interesting legal we've got a legal theory but it's it's it's an expansion of the original legal theory of your original legal theory only appears in sentences which indicates what he believes the claim holds and the citations to the the trial court level read the appellate level in this case this was a appeal for interference which went to the district court even if the overarching legal issue was presented below so here's a legal theory that they're now presenting for the first time before thank you i just like to address to two issues in rebuttal first being again quickly with respect to the waiver issue and with respect to the simon case which i counsel this morning bring to my attention before before argument so we did briefly discuss that sign that i think is an extreme example as many of the cases that were cited with respect to the way of argument sign it involved an issue of at the at the board level concerning priority whereas on appeal issues concerning constructive trust and equitable simon rai these were clearly two issues in two very different ballparks two different zip codes they're nowhere close to the issue that we're addressing here with respect to does the site are disclosed each and every element as set forth in the client as was discussed numerous times during prosecution before the board again footnote three of the in read watch case clearly supports reinforcing discussing clarifying that sort of issue as we're doing here on appeal with respect to the  issue i just like to read with the court's permission what the verbatim language of the claim of claim one may be found on a ten of the record specifically the broadcasting step because i think having the clear focused language is critical the broadcasting step says broadcasting a notification to existing participants of the online session or the communication network thereby notifying the existing participants that the participant has disconnected i want to be clear in this in the sense that we've talked in numerous times on the possibilities or the latency issue what if the notification is sent you know right now but it's not received until later this is i want to make sure that we're not inadvertently sinning a straw man because that's not the issue here this claim language says broadcasting a notification that the participant has disconnected that broadcast at the time it is broadcast broadcasting part of a limitation that notification must be indicating that the participant has has disconnected again that disconnection must be affirmative it must be complete it cannot be in the process it cannot be intended it cannot be planned the claim language says on its face broadcasting a notification that the participant has disconnected completely disagree it is possible that the notification be sent while the participant is still there and then by the time it is received that person's been has disconnected that's not the issue and this is the concern i had concerning the straw man is that when that  described and it was raised in the director's brief that is not a broadcast that the participant has disconnected at the time that packet is broadcast broadcasting a notification that notification must concern the fact that the participant has disconnected there must be that affirmative disconnect with the time that packet is sent the disconnection may must have been disk must have been complete and that is simply not cut nor is it possible with respect to the common reference thank you