interaction to cover with user interaction well there's result in a reversal focusing on the first air computer to computer communications include either push transmission  transmission the distinction between the two is well known in the art and depends on which computer initiates the transaction or the transmission the push transmission these at the first computer initiate the transmission of a message i sent it to the second computer says a call analog and this is when i send you a letter i push the letter to you when i put it in the mail bridget can i have you get j a thirty seven sixty two we have hear the definition from motorola's on expert dr alexander on page j a thirty seven sixty two question what is your andersen understanding of the term push well in the ninety's in the mid ninety's one of ordinary skill in the art understood push to mean that the content has to be delivered to your computer your client computer without either the client computer itself or the user of the client computer requesting that information it was fairly well understood concept and you know i believe three o three two machine three o four is not continuously connect to the internet this type of system may be used protocol's also if we see here that  poll just like the claims claims we are you start with a push pushing the the pushing the message to the second computer and end with a pole the second computer automatically retrieving the message for the user without user yourself so the background specification does talk about the whole only system but the specification the detailed description talks about systems that combine push email or push technology with pull are very distinct that's right push means that the first computer initiates a transaction poll means the second computer initiates the transaction by retrieval in the prior art the two are very distinct this invention combines the two together and  still exists that's right that's correct so let's turn to the file history statement it's on a seven ninety five and she's getting that three times in the file history the applicant made a statement the limited the present invention the applicant stated and there's two distinctions the applicant stated the president mentioned one pushes information to the user and to the content of that information or efficient information is automatically retreat for the user without automatically for the user without user interaction so we argue that two separate disclaimers were that is correct there are multiple claims that claim thirty nine for instance was not amended it all claimed thirty nine parts about the transmitting it's all about transmitting after the  the computer receives and it's all about transmitting it was amended at all claim twenty one which is one of the representative claims it wasn't amended at all it didn't add automatic it didn't add without user interaction the president mentioned one pushes information to the user and to the content that information is automatically retreat motorola would like to lump the two distinctions together and say that they both apply to the decoding so that this is incorrect not consistent with the express claim language it's not it's consistent with the grammar of the statement if we look at the express plain language the decoding step states that the that the messages are as  decoded by retrieving data retrieval of data is a poll transmission one can't read the push distinction into that retrieval it would be inconsistent to say retrieving step pushes information to the user and it would not be consistent with the express claim language of the decoding stat the only step in the claims who include it in the transmitting step of the claim unlike the decoding step so why shouldn't we think that you're referring to the decoding step the route here when that's the only amendment that was made  this automatically without user interaction this language that you say creates a disclaimer was only added to the coding step of the claim it wasn't added to the i think that there was certainly an amendment made to some of the claims not to all of them the men that is important it was a distinction but there is a separate prosecution disclaimer a second distinction stuff i think it was not added to the transmitted step to push pushing of information to the user that it wasn't added to the decoding step either pushing information to the user my job is to distinctions combined with an serves as a separate prosecution disclaimer that disclaims the art that was cited and was of record and we believe it applies to the transfer in sept because of the express claim language of the claims it doesn't the second computer there's focus on process there's this focus on both steps in the specification and the file history the statement refers to all steps the first part is to the pushing and which is the good morning and may have please the court the more its construction is correct when the claim language has transmitting by the first computer it simply means that the first computer performs a transmission and there is no conventional transmitting techniques are used the only transmitting system that is named in the specification is the post office protocol version three system the part three system is a response a request and response system that involves a request to retrieve messages at other points in the specification it note a different configuration that allows the message to be fetched that's  circumstances and contexts in which you would expect to have a request for information followed by a response now we pointed out this discrepancy in the specification in our brief the board relied on that discrepancy it out but i mean he hasn't mentioned it or explained it at all including in their reply brief now it's important to note this because it wouldn't make any sense for the specification to then to disclaim all of it then goes on to describe as being part of the transmitting snap and part of the invention the prosecution history says even less about the transmitting stuff all of the arguments and all of the amendments in the prosecution history were about the decoding step the examiner rejected the claims the applicant responded with an amendment that included the automatic retrieval language in the decoding stuff based on that amendment and after making that amendment the applicant then went on to make remarks and arguments expressly distinguishing the prior art on the basis of that amended decoding step language how do you how do you respond to your o amendment the transmitting step is never mentioned at all the phrase that i believe the points to is a phrase that says the present in invention pushes information to the user that's in the middle of the sentence that is talking about the amendment to the decoding step in context that is what is being discussed now i v has argued that it's nonsensical to use the word push to refer to a retrieval that's what they argue in there are reply brief and that's what data to a user without necessarily sending the data itself to left to the user that's talking about the retrieval system that is talking about the the information that is not sent by the sending computer but is retrieved by the receiving computer when it automatically dereference as a u r l and it goes to the u r l and gets the additional information and presents it to the use that characterization of the  itself called a putsch so at a minimum that shows that our intrepid taishan of the prosecution history when it uses the word push it's perfectly reasonable to read that to be discussing the dick coding step and the retrieval step and of course it makes even more sense because it cons in the context of an argument being made about an amendment to the decoding step where the transmitting step was never mention at all and this makes  a matter as a matter of common sense too because the invention here is about the user experience it's about what the user perceives the user does not have to go out and manually get additional information it automatically wait in the in the hearing transcript i v noted that there may be some communications that involve a poll but it's said that those are better characterized as a push well it's a difficult line to draw at a minimum that shows there i use construction is based on the first computers discretion and that in and of itself raises a great deal of ambiguity and cause for concern because that language is comes from the examiner allowance which as a matter of law cannot be a disclaimer and the other thing about that is that no one knows what the examiner met when the examiner used the word discretion again before the board ivy's coun i'm not sure why the examiner used the word and i don't know exactly what it meant that's it j six zero nine and six ten that's the opposite of a clear and unambiguous disclaimer i do use position has changed over time to in characterizing what it actually means its construction or by its construction and what it means by the term discretion as best we could understand what ivy was saying in the briefing lo and what ivy said in its opening information or you can see that of pages six twenty eight thirty one of the opening brief and really throughout the open read and we try to take ideas characterization of its own construction at face value but to the extent that their position is changing on that and there they're taking some new position as to what the disclaimer means that again just goes to confirm that there is no clear and unambiguous disclaimer here another point that i would make is that  construe the claims in the way that i v has proposed would also violate a number of other canons of construction it would read out the only embodiment and potential uses for the invention that are described in the specification it would violate that canon of construction it mean that the term by has different meaning in different in the same claim it would be used in consistently throughout the same claim like age which is a canon of construction and of course as i mentioned it would elevate the examiners one other point that i would make is that counsel pointed to our experts testimony for the proposition that pushing forward well known meanings i would just point the court very briefly to pages thirty seven ninety and thirty seven ninety one where our expert explained that in fact the discussion of portion of the in the in the specification is fragmented area and doesn't line up with the embodiments and then he goes on to conclude that a request response mechanism would covered by the now if the war affirms based on the board's construction of transmitting then it should also affirm at least as to the parts reference because i may have made no other arguments with respect to that reference and that would be sufficient to affirm judgment there was a second issue about pain that was not addressed in the reply brief or addressed in oral argument with intent to stand on the on the briefs with respect to that issue if the meaning case this is a disclaimer case as a matter what the ordinary meaning of by is as has been argued and then with respect to examiners reasons for allowance the examiner reasons for allowance did use his own words he said at the discretion there there's quite a bit quite a bit of emphasis on what the examiner said under this court's precedent it doesn't matter what the examiner said at the zara didn't have say anything there would still be disk prosecution disclaimer just with the applicant statements nonetheless we do believe the applicant statements are consistent with push transmission